PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §306.151, relating to Purpose; §306.152, relating to Application and Responsibility for Compliance; §306.153, relating to Definitions; §306.154, relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services; §306.161 relating to Screening and Assessment; §306.162, relating to Determining County of Residence; §306.163, relating to Most Appropriate and Available Treatment Options; §306.171, relating to General Admission Criteria for a State Mental Health Facility or Facility with a Contracted Psychiatric Bed; §306.172, relating to Admission Criteria for Maximum-Security Units; §306.173, relating to Admission Criteria for an Adolescent Forensic Unit; §306.174 relating to Admission Criteria for Waco Center for Youth; §306.175, relating to Voluntary Admission Criteria for a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility; §306.176, relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention; §306.177, relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services; §306.178, relating to Voluntary Treatment Following Involuntary Admission; §306.191, relating to Transfers Between State Mental Health Facilities; §306.192, relating to Transfers Between a State Mental Health Facility and a State Supported Living Center; §306.193, relating to Transfers Between a State Mental Health Facility and an Out-of-State Institution; §306.194, relating to Transfers Between a State Mental Health Facility and Another Facility in Texas; §306.195, relating to Changing Local Mental Health Authorities or Local Behavioral Health Authorities; §306.201, relating to Discharge Planning; §306.202, relating to Special Considerations for Discharge Planning; §306.203, relating to Discharge of an Individual Voluntarily Receiving Treatment; §306.204, relating to Discharge of an Individual Involuntarily Receiving Treatment; §306.205, relating to Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed; §306.207, relating to Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan; and §306.221, relating to Screening and Intake Assessment Training Requirements at a State Mental Health Facility and a Facility with a Contracted Psychiatric Bed.

HHSC proposes new §306.155, relating to Local Mental Health Authority, Local Behavioral Health Authority, and Continuity of Care Liaison Responsibilities; §306.361, relating to Purpose; §306.363, relating to Application; §306.365, relating to Definitions; §306.367, relating to General Provisions; and §306.369, relating to Documentation Requirements.

HHSC proposes the repeal of §306.206, relating to Absence for Trial Placement.

BACKGROUND AND PURPOSE

The Texas Health and Human Services Commission (HHSC) proposes amendments and the repeal of a rule in the Texas Administrative Code (TAC), Title 26 Chapter 306, Subchapter D relating to Mental Health Services--Admission, Continuity, and Discharge and proposes new rules in 26 TAC Chapter 306, Subchapter H relating to Behavioral Health Services--Telecommunications. The rule proposal is necessary to implement Senate Bill (S.B.) 26, 88th Legislature, Regular Session, 2023 and House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021.

S.B. 26 requires HHSC to adopt or amend existing rules to address a local mental health authority's (LMHA's) responsibility for ensuring the successful transition of patients determined ready for discharge from an HHSC mental health facility. To implement S.B. 26, the proposal amends the rules to do the following. Require state hospitals to participate in joint discharge planning with an LMHA. Require coordination between the LMHAs and the state hospital to determine appropriate community services for a patient. Require an LMHA to arrange for the provision of services upon discharge. Require the LMHA's transition support services to complement joint discharge planning efforts. Require each state hospital to designate at least one employee to provide transition support services for patients determined medically appropriate for discharge. Require each state hospital to concentrate transition support services on patients admitted and discharged multiple times within 30 days, or patients who had a long-term stay (more than 365 consecutive days). And allow voluntary admission to an inpatient mental health facility, including a state hospital, only if space is available.

H.B. 4 directs HHSC to ensure that individuals receiving HHSC-funded behavioral health services have the option to receive services as telemedicine or telehealth services, including using an audio-only platform, to the extent it is clinically effective and cost-effective.

Additionally, HHSC proposes amendments to clarify statutory requirements; add, remove, and update definitions; delete references to managed care organizations (MCOs) and update Medicaid-related information; update and add cross-references; and make grammatical and editorial changes for understanding, accuracy, and uniformity.

SECTION-BY-SECTION SUMMARY

The proposed amendment to the title of 26 TAC Chapter 306, Subchapter D, Mental Health Services--Admission, Continuity, and Discharge, replaces "Admission, Continuity, and Discharge" with "Mental Health Services--Admission, Discharge, and Continuity of Care" to make the subchapter's title more representative of the body text.

Division 1, General Provisions

The proposed amendment to §306.151 updates the description of the purpose of the subchapter by adding it provides requirements for admission, discharge, and continuity of care and specifies that state hospitals, facilities with contracted psychiatric beds (CPBs), and local intellectual and developmental disability authorities (LIDDAs) are included in the service array. The proposed amendment also includes in the purpose for the rules to establish criteria for the delivery of substance use disorder (SUD) services to individuals. The proposed amendment also updates the purpose section to include criteria and guidelines in the subchapter for individuals receiving both mental health and SUD disorder services. The proposed amendment also formats the rule as subsection (a) and subsection (b) to improve the readability of the rule.

The proposed amendment to §306.152 clarifies that the rules apply to a state hospital, a CPB, an LMHA, a local behavioral health authority (LBHA), and a LIDDA. The proposed amendment also clarifies that an LMHA or LBHA must require its subcontractors to comply with Subchapter D.

The proposed amendment to §306.153 adds new definitions to define what these terms mean when used in Subchapter D: "Audio-only technology," "Audiovisual technology," "CoC liaison--Continuity of care liaison," "DFPS--Texas Department of Family and Protective Services or its designee," "Discharge planning specialist," "DSM --Diagnostic and Statistical Manual of Mental Disorders," "Family partner," "Furlough," "In person," "Involuntary admission," "LPHA--Licensed practitioner of the healing arts," "Outpatient management plan," "Pass," "PE--PASRR level II evaluation," "PL1--PASRR level I screening," "SED--Serious emotional disturbance," "State hospital," and "Voluntary admission."

The proposed amendment to §306.153 revises the following definitions for clarification and to align with other rules: "Absence," "Admission," "Adolescent," "Adult," "Advance directive," "Alternate provider," "Assessment," "Assessment professional," "Child," "Continuity of care," "Continuity of care worker," "COPSD," "COPSD model," "CPB--Contracted psychiatric bed," "CRCG," "Crisis," "Crisis treatment alternatives," "Day," "DD--Developmental disability," "Designated LMHA or LBHA," "Discharge," "Discharged unexpectedly," "Emergency medical condition," "ID--Intellectual disability," "Inpatient services," "Intake assessment," "LAR--Legally authorized representative," "LBHA--Local behavioral health authority," "LIDDA--Local intellectual and developmental disability authority," "LMHA or LBHA network provider," "LMHA or LBHA services," "Local service area," "Mental illness," "MH priority population--Mental health priority population," "Minor," "Nursing facility," "Offender with special needs," "Ombudsman," "PASRR," "Peer specialist," "Permanent residence," "QMHP-CS--Qualified mental health professional-community services," "Recovery," "Recovery or treatment plan," "Screening," "SSLC--State supported living center," "SUD--Substance use disorder," and "Treatment team."

The proposed amendment to §306.153 deletes the following definitions because they no longer need to be defined or are no longer used in Subchapter D: "ATP--Absence for trial placement;" "Face to face;" "Facility;" "Individual involuntarily receiving treatment;" "Individual voluntarily receiving treatment;" "MCO--Managed care organization;" "PASRR Level I screening;" "PASRR Level II evaluation;" "SMHF--State mental health facility," which is being replaced by "state hospital" throughout Subchapter D; and "Transfer." The proposed amendment renumbers the definitions to account for new and deleted definitions.

The proposed amendment to §306.154 clarifies that any individual eligible for Medicaid and whose services have been terminated, suspended, or reduced by HHSC is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearings Rules). The proposed amendment renumbers the remaining subsections, deletes repetitive language in §306.154(b), and clarifies information on how to contact the Office of the Ombudsman.

Proposed new §306.155 establishes LMHA, LBHA, and CoC liaison responsibilities and requires the LMHA or LBHA to develop policies and procedures for specific CoC liaison duties and responsibilities.

Division 2, Screening and Assessment for Crisis Services and Admission into Local Mental Health Authority or Local Behavioral Health Authority Services--Local Mental Health Authority or Local Behavioral Health Authority Responsibilities retitled as "Screening and Assessment for Crisis Services and Admission into Local Mental Health Authority or Local Behavioral Health Authority Services".

The proposed amendment to §306.161, in subsection (a), clarifies that an LMHA or LBHA must ensure an individual's immediate screening, and if emergency care services are recommended based on the screening, that the staff member complies with access to community service requirements. The proposed amendment to subsection (c) clarifies screening and assessment requirements if an individual not in crisis presents for services. The proposed amendment to subsection (d) clarifies that an LMHA or LBHA must provide services immediately for eligible individuals in the MH priority population. The proposed amendment to subsection (d)(4) specifies that an LMHA or LBHA has three business days to provide an individual not in the mental health priority population with written notification regarding denial of services and updates that the information provided to include how to contact the Office of the Ombudsman.

The proposed amendment to §306.162, in subsection (a), clarifies county of residence requirements for adults and removes repetitive language. The proposed amendment adds a new paragraph (b)(3) to clarify LMHA and LBHA requirements for a minor in DFPS conservatorship. The proposed amendment in subsections (c) and (d) replaces "dispute" with "disagreement" and clarifies who initiates the disagreement related to an individual's county of residence for LMHA or LBHA services. The proposed amendment in subsection (e) clarifies the role of the LMHA or LBHA when an individual changes county of residence status.

The proposed amendment to §306.163, in subsection (a), adds SUD services to LMHA or LBHA services. The proposed amendment in subsection (b)(2) clarifies that inpatient services need to be the least restrictive "and most appropriate setting" available. The proposed amendment in subsection (b)(3) adds "or a DD" for accuracy and uniformity regarding referrals to LIDDAs. The proposed amendment adds a new paragraph (9) in subsection (b) regarding the LMHA's or LBHA's responsibility for continuity of care and planning. The proposed amendment in subsection (d) replaces "most integrated setting" with "least restrictive and most appropriate setting" for clarity.

Division 3, Admission to a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities, retitled as "Admission to a State Hospital or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities."

The proposed amendment to §306.171 retitles the rule from "General Admission Criteria for a State Mental Health Facility or Facility with a Contracted Psychiatric Bed" to "General Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed" to update terminology. The proposed amendment in subsection (b)(1) clarifies that a state hospital or CPB may not admit an individual with a medical condition that requires medical care not available at the facility. The proposed amendment in subsection (c)(1) specifies a time frame of within three business days of the individual's presentation for services that a state hospital or CPB has to notify the designated LMHA or LBHA that the individual has presented for services. The proposed amendment in subsection (c)(2)(A) clarifies a statutory reference for Emergency Medical Treatment and Active Labor Act (EMTALA), and in subsection (c)(2)(B) requires that hospital transfers must occur according to Medicare, Medicaid, and EMTALA regulations. The proposed amendment in subsection (d) clarifies a facility must contact the designated LMHA or LBHA to coordinate alternate outpatient community services at time of admission denial. The proposed amendment in renumbered subsection (e) requires the designated LMHA or LBHA to contact and notify the individual, or the individual's LAR if applicable, that the LMHA or LBHA will provide referrals and referral follow-up.

The proposed amendment to §306.172, replaces "HHSC state hospital policies" with a reference to "25 TAC Chapter 415, Subchapter G," relating to Determination of Manifest Dangerousness, and makes a minor editorial changes.

The proposed amendment to §306.173 (a)(1)(A) removes the term "specialized" that currently describes mental health treatment, and replaces "to address violent behavior" with "to address a risk of dangerousness." These changes are made to offer greater flexibility for individual eligibility and to align rule language. The proposed amendment revises the admission criteria in subsection (a)(1)(C) to require a written letter of recommendation from the local Community Resource Coordination Group (CRCG) that confirms available community resources for an adolescent have been exhausted. The proposed amendment revises the admission criteria in subsection (a)(3) by replacing "in accordance with HHSC state hospital policies" with "in accordance with 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness)." The proposed amendment in subsection (b) removes the requirement for a physician to determine if the adolescent has an ID diagnosis.

The proposed amendment to §306.174 removes repetitive language in subsection (a)(1) and amends subsection (a)(2) to specify that an individual's admission to Waco Center for Youth may occur if an individual has an SED based on the version of the DSM currently recognized by HHSC. The proposed amendment to subsection (a)(3) replaces "behavior adjustment problems" with "behavior adjustment concerns" to exercise person-first language. The proposed amendment to subsection (a)(5)(A) clarifies that a referral for Waco Center for Youth admission can be made by the LMHA, LBHA, or CRCG when all appropriate community-based resources have been exhausted and the Center is the least restrictive and most appropriate environment. The proposed amendment adds new subparagraph (C) to add DFPS as a referral source for Waco Center for Youth admission to align with statute. The proposed amendment to subsection (b)(1) updates the minimum age for admission to 13 and adds that admission may not occur if the adolescent's age at admission does not allow adequate time for treatment programming before reaching 18 years of age. The proposed amendment to subsection (b)(4) removes the requirement for a physician determination for an ID diagnosis. The proposed amendment to subsection (c) specifies a time frame of within three business days for Waco Center for Youth to provide an adolescent's LAR and LMHA or LBHA written notification that states the reason for a denial in services. The proposed amendment to subsection (d) requires written clinical appropriateness of readmission to Waco Center for Youth and formats the last sentence in subsection (d) as new subsection (e) to make it a separate requirement. The proposed amendment adds a new subsection (f) to require an LMHA or LBHA to assess an adolescent for eligible services and continuity of care if a denial occurs.

The proposed amendment to §306.175 retitles the rule from "Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility" to "Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed" to update terminology. The proposed amendment to subsection (a)(1)(B) adds a cross-reference regarding LAR criteria for voluntary admission. The proposed amendment adds a new subsection (a)(4) to clarify who qualifies to be an LAR. The proposed amendment to subsection (b) adds "LIDDA" throughout the subsection as an entity to notify if an individual does not meet admission criteria to a state hospital or CPB; removes repetitive language in paragraph (1); and proposes new subsection (b)(2) to require the LMHA or LBHA to provide referrals and referral follow-up for ongoing services. The proposed amendment to subsection (c)(2)(C) adds language that specifies an assessment for SUD to be included in the state hospital or CPB admission examination. The proposed amendment replaces the current subsection (e) with a new subsection (e) to require an LMHA or LBHA to provide, or refer the individual to, community mental health services and supportive services to meet the needs of the individual who does not meet admission criteria. The proposed amendment to subsection (h), adds a new paragraph (4) to implement Texas Health and Safety Code §572.0026, which requires a state hospital or CPB to voluntarily admit an individual only if there is available space at the state hospital or CPB.

The proposed amendment to §306.176 retitles the rule from "Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention" to "Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed for Emergency Detention" to update terminology.

The proposed amendment makes clarifying changes in subsections (a), (b), (c)(2), (d)(1) - (3), and (e) to use "must" where imposing a rule as a requirement is necessary and in subsection (e) to use "may" because the state hospital or CPB under certain conditions may or may not admit an individual for emergency detention. The proposed amendment to subsection (d)(2) clarifies that a facility is required to contact the designated LMHA or LBHA to provide referrals and referral follow-up for ongoing services for an individual who is not admitted on an emergency detention; and adds a reference to Texas Health and Safety Code Chapter 573. The proposed amendment, in subsection (d)(2), adds new subparagraphs (A) and (B) to require the LMHA or LBHA in the individual's county of residence to contact the individual within 24 hours of being notified that the individual does not meet emergency detention criteria and to provide referrals and referral follow-up for ongoing services. The proposed amendment to subsection (e) adds new language to require that all intake assessment documents must be provided to the individual or the individual's LAR. The proposed amendment in subsection (e)(1) - (5) makes minor editorial changes for clarity.

Proposed amendments to §306.177(a) clarifies a state hospital or CPB may admit an individual after receiving an order of protective custody; removes language in §306.177(b) that describes how an individual's admission is not a medical act; and amends §306.177(c) to clarify that the intake assessment must be conducted with an individual, and their LAR if applicable.

Division 4, Transfers and Changing Local Mental Health Authorities or Local Behavioral Health Authorities

The proposed amendment to §306.191 retitles the rule from "Transfers Between State Mental Health Facilities" to "Transfers Between State Hospitals" to update terminology. The proposed amendment in subsection (d) clarifies that the state hospital initiating the transfer must also notify the designated LMHA, LBHA, or LIDDA of the transfer.

The proposed amendment to §306.192 retitles the rule from "Transfers Between a State Mental Health Facility and a State Supported Living Center" to Transfers Between a State Hospital and a State Supported Living Center" to update terminology.

The proposed amendment to subsection (a)(1)(A) updates a rule reference and makes other minor editing changes. The proposed amendment to subsection (b)(1)(C) clarifies the rules and statutes governing the transfer of an individual from an SSLC to a state hospital by adding "Texas Health and Safety Code §575.012." The proposed amendment to subsection (b)(2) clarifies that the receiving state hospital and the initiating SSLC must notify the designated LMHA, LBHA, or LIDDA of the transfer.

The proposed amendment to §306.193 retitles the rule from "Transfers Between a State Mental Health Facility and an Out-of-State Institution" to "Transfers Between a State Hospital and an Out-of-State Facility" to update terminology.

The proposed amendment to §306.194 retitles the rule from "Transfers Between a State Mental Health Facility and Another Facility in Texas" to "Transfers Between a State Hospital and Another Facility in Texas" to update terminology. The proposed amendment to subsection (a) clarifies that the section applies to a transfer between a state hospital and a psychiatric hospital not operated by HHSC. The proposed amendment to subsection (b) clarifies that an individual may transfer from a state hospital to a federal agency and requires the transferring state hospital to notify the designated LMHA or LBHA of the transfer. The proposed amendment to subsection (c) replaces "govern transfer of" to "may transfer" for clarification. The proposed amendment also updates terminology.

The proposed amendment to §306.195, in subsection (a)(1)(A), requires the originating LMHA or LBHA to ensure the CoC liaison submits requested information to the new LMHA or LBHA within seven days after a transfer request. The proposed amendment adds a new subparagraph (a)(1)(B) to require the CoC liaison to initiate transition planning with the receiving LMHA or LBHA and renumbers the subsequent subparagraphs. The proposed amendment to subsection (a)(1)(C) updates LMHA or LBHA requirements to educate the individual, or the individual's LAR if applicable, on the provisions of the individual's transfer. The proposed amendment adds new paragraph (2) in subsection (a) to clarify requirements for the receiving LMHA or LBHA when an individual changes LMHAs or LBHAs and renumbers the subsequent paragraphs. The proposed amendment renumbers current paragraph (2) in subsection (a) as paragraph (3), and in renumbered paragraph (3)(A)(iv), removes "the individual" as a minor editorial change.

The proposed amendment to §306.201, in subsection (a), requires the state hospital or CPB to send an electronic admission initial notification within three business days to the appropriate LMHA, LBHA, and LIDDA to initiate discharge planning. The proposed amendment to subsection (b) requires the state hospital or CPB to initiate coordination of discharge planning. The proposed amendment to subsection (b)(2) adds a requirement for the state hospital or CPB to invite the LMHA, LBHA, or LIDDA, to routine recovery or treatment plan meetings with at least 24-hour notification of the meeting. The proposed amendment to subsection (b)(3) clarifies that the state hospital or CPB must coordinate discharge planning with the LMHA, LBHA, or LIDDA before the individual's discharge. The proposed amendment adds a paragraph (4) in subsection (b) to require the LMHA or LBHA to facilitate the transition of individuals who are determined by the state hospital or CPB to be medically appropriate for discharge by connecting them to resources available in the individual's county of residence or choice. The proposed amendment to §306.201 subsection (c)(2) clarifies requirements for the state hospital or CPB, and the LMHA, LBHA, or LIDDA to jointly identify, recommend, and help coordinate access to and supports for the individual and the individual's LAR if applicable. The proposed amendment to subsection (c)(3) clarifies requirements for the LMHA, LBHA, CoC liaison, or LIDDA continuity of care worker, to establish referrals to housing services and support. The proposed amendment to subsection (c)(4) requires the LMHA or LBHA CoC liaison, or LIDDA continuity of care worker, to identify potential providers and resources for the services and supports recommended and arrange for provision of services upon discharge to align with Texas Health and Safety Code §534.0535. The proposed amendment to subsection (c)(5) clarifies that the state hospital or CPB must attempt to educate the individual, and the individual's LAR if applicable, to prepare them for care after discharge or if the individual is on a pass or furlough from the facility. The proposed amendment to subsection (c)(7) adds LIDDAs as an entity that must comply with the PASSR requirements and replaces "recommended to move" with "referred" for clarity. The proposed amendment to subsection (d)(1) clarifies requirements for the discharge plan. The proposed amendments to subsection (d)(1)(A) - (C) removes "The SMHF or facility with a CPB documents" for clarity; adds proposed new §306.201(d)(1)(D) that requires the discharge plan to include documentation of arrangements and referrals, and renumbers subsequent paragraphs. The proposed amendment to subsection (d)(1)(E) replaces the word "problems" with "behavioral health symptoms" and replaces "issues" with "symptoms" for clarity. The proposed amendment to subsection (d)(1)(J)(ii) clarifies the required time frame for providing and paying for medication. The proposed amendment to subsection (d)(5)(B) updates the process for when an LMHA or LBHA disagrees with the treatment team's decision concerning discharge. The proposed amendment to subsection (e)(1) clarifies that discharge notification requires authorization by the individual or the individual's LAR, if applicable. The proposed amendment to subsection (e)(2) adds "who voluntarily consented for the individual's own admission" to discharge procedures when an individual is at least 16, but less than 18 years of age, and a 72-hour time frame for notifying the individual's family or any identified person providing support of the individual's discharge for clarification. The proposed amendment to subsection (e)(3) adds "must" to impose a requirement for the state hospital or DPB to notify the minor's LAR of the discharge. The proposed amendment to subsection (f)(1)(A) clarifies and adds two new requirements for a state hospital or CPB if the LAR or the LAR's designee is unwilling to retrieve the minor upon discharge and the LAR is not a state agency. The proposed amendment to subsection (g)(1) clarifies a state hospital or CPB must inform the designated LMHA, LBHA, or LIDDA of the individual's anticipated or unexpected discharge and convey the contact information of the individual, or the individual's LAR if applicable. The proposed amendment to subsection (g)(4) revises the requirement to include the individual's destination address after discharge, or while on pass or furlough. The proposed amendment to subsection (g)(7) adds "an ID, or a DD" as information provided to the designated LMHA, LBHA, or LIDDA before discharge. The proposed amendment to subsection (h)(2) removes extraneous information pertaining to an individual's records. The proposed amendment to subsection (i)(2) replaces "staff with an equivalent credential to a social worker" with "designee" for clarity. The proposed amendment to subsection (j)(1) includes a LIDDA as a collaborator for secure transportation for an individual's discharge. The proposed amendment adds a new subsection (l) to require an LMHA or LBHA to provide continuity of care services designed to support joint discharge planning efforts to align with Texas Health and Safety Code §534.0535. The proposed amendment updates terminology as needed throughout the section and updates rule references.

The proposed amendment to §306.202, subsection (a) clarifies that a mental health peer specialist or recovery support peer specialist can provide non-clinical supports, and updates the terminology for these roles. The proposed amendment creates new subsection (b) to align with Texas Health and Safety Code §534.053 and renumbers the subsequent subsections. The proposed amendment to renumbered subsection (g)(1)(A) clarifies that an individual committed to a state hospital or a CPB under Texas Code of Criminal Procedure Article 46B.102, may only be discharged by order of the committing court, and in (g)(1)(B) clarifies that an individual committed to a state hospital or a CPB under Texas Code of Criminal Procedure Article 46B.073 must be discharged and transferred in accordance with Texas Code of Criminal Procedure Articles 46B.081. The proposed amendment to renumbered subsection (g)(2) clarifies that an individual committed to a state hospital or CPB under Texas Code of Criminal Procedure Chapter 46C may only be discharged by order of the committing court. The proposed amendment to renumbered subsection (h)(1)(A), (B), and (C) adds "LBHA" to replace one of the two references to "LMHA" to correct these rules. The proposed amendment to renumbered subsection (h)(1)(C) adds "required in paragraph (1)(A) of this subsection" for clarity. The proposed amendment updates terminology as needed and makes minor editing change. The term "face-to-face" is also replaced throughout the section with "in-person" for clarity.

The proposed amendment to §306.203 retitles the rule from "Discharge of an Individual Voluntarily Receiving Treatment" to "Discharge of an Individual Voluntarily Receiving Inpatient Treatment" to clarify the type of treatment. The proposed amendment adds "must" in subsections (b)(2) and (d)(2)(B) and (C), to clarify requirements regarding discharge requests. The proposed amendment in subsection (e)(1)(A) removes "treatment as a patient" and adds "and released to the minor's LAR" to subsection (e)(1)(B) for clarification regarding discharge. The proposed amendment to subsection (f) clarifies that when withdrawing the request for discharge, an individual documents and signs a written statement. The proposed amendment updates terminology and the titles of a division and a rule referenced in the section and makes other minor editorial changes.

The proposed amendment to §306.204 replaces "facility with a CPB administrator" with "administrator of the CPB" throughout subsection (b) for clarity and makes corrections by adding "state hospital or" to all instances of "CPB" in subsection (c)(3). The proposed amendment also adds that coverage for psychoactive medications also applies when an individual is on a pass under (c)(3).

The proposed amendment to §306.205 retitles the rule from "Pass or Furlough from a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed" to "Pass or Furlough from a State Hospital or a Facility with a Contracted Psychiatric Bed" to update terminology. The proposed amendment replaces the current subsection (a) with new subsection (a) to clarify the pass or furlough requirements for an individual under consideration for discharge. The proposed amendment adds new subsection (b) to clarify the circumstances when a state hospital or CPB administrator may contact a peace officer. The proposed amendment adds new subsection (c) to clarify that the LMHA or LBHA must ensure an individual receives proper care and medical attention if detained in a nonmedical facility by a peace officer and renumbers the subsequent subsections. The proposed amendment to renumbered subsection (d) replaces "authorized absence that exceeds 72 hours" with "furlough" for clarity. The proposed amendment to renumbered subsection (d)(3) and (4) clarify the hearing officer's role and responsibilities after an administrative hearing regarding a furlough concludes. The proposed amendment to renumbered subsection (d)(5) replaces "absence" with "furlough" for clarity. The proposed amendment to renumbered subsection (e) replaces "absences" with "a pass or furlough" for clarity.

The proposed repeal of §306.206 is necessary because the terminology "ATP--absence for trial placement" is no longer used in Subchapter D.

The proposed amendment to §306.207 retitles the rule from "Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan " to "Post Discharge or Furlough: Contact and Implementation of the Recovery or Treatment Plan" to update terminology and changes the formatting from paragraphs to subsections. The proposed amendment adds "within seven days after discharge" in subsection (a)(2), and adds a new paragraph (3) to require the designated LMHA or LBHA to ensure the successful transition of individuals determined by the state hospital or CPB to be medically appropriate for discharge in accordance with Texas Health and Safety Code §534.0535 to align with statute.

Division 6, Training

The proposed amendment to §306.221 retitles the rule from "Screening and Intake Assessment Training Requirements at a State Mental Health Facility and a Facility with a Contracted Psychiatric Bed" to "Screening and Intake Assessment Training Requirements at a State Hospital and a Facility with a Contracted Psychiatric Bed" and makes other editing changes where needed to update terminology.

Proposed new Subchapter H, Behavioral Health Services--Telecommunications

Proposed new §306.361 describes that the purpose of new Subchapter H is to establish methods and parameters of service delivery for individuals receiving general-revenue funded behavioral health services that the Texas Health and Human Services Commission determines are clinically effective and cost-effective in accordance with Texas Government Code §531.02161.

Proposed new §306.363 establishes that the rules apply to LMHAs, LBHAs, substance use intervention providers, substance use treatment providers, and their subcontracted providers.

Proposed new §306.365 defines terms used in the proposed new subchapter.

Proposed new §306.367 establishes parameters for the delivery of services using audiovisual or audio-only technology under this subchapter if permitted by provider's state license, permit, or other legal authorization. Proposed new subsection (b) requires providers adhere to Medicaid policy, procedures, rules, and guidance. Proposed new subsection (c) allows providers delivering behavioral health services that do not have a procedure code billable in Medicaid to deliver the service either in person, by audiovisual technology, or by audio-only technology. Proposed new subsection (d) sets forth the requirements for a provider delivering behavioral health services by audiovisual technology or by audio-only technology as permitted under proposed new Subchapter H. Proposed new subsection (e) requires a provider to ensure any software or technology used complies with all applicable state and federal requirements and confidentiality and data encryption requirements.

Proposed new §306.369, in subsection (a), requires a provider to accurately document the services rendered, identify the method of service delivery, and adhere to the same documentation requirements for behavioral health services delivered by audiovisual or audio-only technology as for service delivery in person. Proposed new subsection (b) requires a provider, prior to delivering a behavioral health service by audio-only technology, to obtain informed consent from the individual, or the individual's LAR if applicable, and sets forth requirements for documentation of informed consent. Proposed new subsection (c) requires providers to adhere to documentation requirements in accordance with publications and conditions described in proposed new §306.367(b) if the general revenue-funded behavioral health service has a procedure code that is billable in Medicaid.

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 create new regulations;

(6) the proposed rules will expand and 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 as there are no requirement to alter current business practices. The proposed rules provide guidance to providers on programmatic requirements.

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

Trina Ita, Deputy Executive Commissioner of Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be that transition support teams will prepare the highest need/most complex patients for transition, provide post-move monitoring, and ensure collaborative problem-solving among providers to avoid readmission or other undesired outcomes. The public benefit will also be increased access to services via telehealth.

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 all new requirements are included in contracts already in place, therefore there is no change to current business practices and no new fees or costs imposed on those required to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If 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 24R018" in the subject line.

SUBCHAPTER D. MENTAL HEALTH SERVICES--ADMISSION, CONTINUITY, AND DISCHARGE

DIVISION 1. GENERAL PROVISIONS

26 TAC §§306.151 - 306.155

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 §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendments affect Texas Government Code §531.0055.

§306.151.Purpose.

(a) The purpose of this subchapter is to:

(1) provide requirements on admission, discharge, and continuity of care; and

(2) address the interrelated roles and responsibilities of state hospitals, CPBs, LMHAs, LBHAs, and LIDDAs [mental health facilities, local mental health authorities, and local behavioral health authorities] in the delivery of mental health and co-occurring SUD services to individuals.

(b) This subchapter establishes criteria for individuals receiving mental health services and SUD services and provides guidelines related to:

(1) clinically appropriate [patient] placement in an inpatient, residential, or community setting based on screening and assessment of the individual;

(2) timely access to evaluation and mental health, SUD, and other [treatment] services in the least restrictive and most appropriate setting; and

(3) [effectively, and without interruption,] transitioning care between service types and providers for individuals receiving mental health or SUD services at state hospitals, CPBs, LMHAs, LBHAs, and LIDDAS, effectively and without interruption [mental health facilities, local mental health authorities, and local behavioral health authorities].

§306.152.Application and Responsibility for Compliance.

(a) This subchapter applies to:

(1) a state hospital [mental health facility (SMHF)];

(2) a CPB [facility with a contracted psychiatric bed (CPB)];

(3) an LMHA [a local mental health authority (LMHA)]; [or]

(4) an LBHA [a local behavioral health authority (LBHA)]; and

[(4) an LMHA or LBHA with a local service area that is served by a managed care organization (MCO), to the extent the contract between the Health and Human Services Commission (HHSC) and the LMHA or LBHA requires compliance with one or more provisions of this subchapter; and]

(5) a LIDDA.

[(5) an MCO, as required by the managed care contracts between HHSC and the MCO for delivery of Medicaid and CHIP managed care products.]

(b) [Responsibility for Compliance.] An LMHA or LBHA must require its subcontractors to comply with this subchapter.[:]

[(1) must require by contract with providers in its network, that the providers comply with Division 2 of this subchapter (relating to Screening and Assessment for Crisis Services and Admission into Local Mental Health Authority or Local Behavioral Health Authority Services--Local Mental Health Authority or Local Behavioral Health Authority Responsibilities) and Division 3 of this subchapter (relating to Admission to a State Mental Health Facility or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities); and]

[(2) must monitor its providers for compliance with the contract and the requirements in Division 2 and Division 3 of this subchapter.]

§306.153.Definitions.

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

(1) Absence--When an individual, previously admitted to a state hospital or CPB, [an SMHF] and [who is] not discharged from the admitting facility [SMHF], is physically away from the facility [SMHF] for any reason, including hospitalization, home visit, special activity, or unauthorized departure[, or absence for trial placement].

(2) Admission--Includes:

(A) an [An] individual's acceptance to a state hospital or [an SMHF's custody or a facility with a] CPB for voluntary or involuntary inpatient or residential treatment services; or[, based on:]

[(i) a physician's order issued in accordance with §306.175(h)(2)(C) of this subchapter (relating to Voluntary Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility);]

[(ii) a physician's order issued in accordance with §306.176(c)(3) of this subchapter (relating to Admission Criteria for a Facility with a Contracted Psychiatric Bed Authorized by an LMHA or LBHA or for a State Mental Health Facility for Emergency Detention);]

[(iii) a court's order of protective custody issued in accordance with Texas Health and Safety Code §574.022;]

[(iv) a court's order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034, or Texas Family Code Chapter 55;]

[(v) a court's order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035, or Texas Family Code Chapter 55; or]

[(vi) a court's order for commitment issued in accordance with the Texas Code of Criminal Procedure, Chapter 46B or Chapter 46C.]

(B) the [The] acceptance of an individual in the mental health priority population into LMHA or LBHA services.

(3) Adolescent--An individual who is [at least] 13 years of age, but younger than 18 years of age.

(4) Adult--An individual who is at least 18 years of age or older.

(5) Advance directive--As used in this subchapter, includes:

(A) an instruction made under Texas Health and Safety Code Chapter 166 [§§166.032, 166.034 or 166.035 to administer, withhold, or withdraw life-sustaining treatment in the event of a terminal or irreversible condition]; or

[(B) an out-of-hospital DNR order, as defined by Texas Health and Safety Code §166.081;]

[(C) a medical power of attorney under Texas Health and Safety Code, Chapter 166, Subchapter D; or]

(B) [(D)] a declaration for mental health treatment made [for preferences or instructions regarding mental health treatment] in accordance with Civil Practice and Remedies Code Chapter 137.

(6) Alternate provider--An entity that provides mental health services or SUD [substance use disorder treatment] services in the community but does not provide these services under contract [pursuant to a contract or memorandum of understanding] with an LMHA or LBHA.

(7) APRN--Advanced practice registered nurse. A registered nurse licensed by the Texas Board of Nursing to practice as an advanced practice registered nurse as provided by Texas Occupations Code §301.152.

(8) Assessment--The administrative process a state hospital or [an SMHF or a facility with a] CPB uses to gather information from an individual [a prospective patient], including a medical history and the concerns [problem] for which the individual [prospective patient] is seeking treatment, to determine whether the individual [a prospective patient] should be examined by a physician to determine if admission is clinically justified, as defined by Texas Health and Safety Code §572.0025(h)(2).

(9) Assessment professional--In accordance with Texas Health and Safety Code §572.0025(c) - (d)[§572.0025(c)-(d) ], a staff member of a state hospital or [an SMHF or facility with a] CPB, whose responsibilities include conducting the intake assessment described in §306.175(g) of this subchapter (relating to Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed) and §306.176(e) of this subchapter (relating to Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed for Emergency Detention), and who is:

(A) a physician licensed to practice medicine under Texas Occupations Code[,] Chapter 155;

(B) a physician assistant licensed under Texas Occupations Code[,] Chapter 204;

(C) an APRN licensed under Texas Occupations Code[,] Chapter 301;

(D) a registered nurse licensed under Texas Occupations Code[,] Chapter 301;

(E) a psychologist licensed under Texas Occupations Code[,] Chapter 501;

(F) a psychological associate licensed under Texas Occupations Code[,] Chapter 501;

(G) a licensed professional counselor licensed under Texas Occupations Code[,] Chapter 503;

(H) a licensed social worker licensed under Texas Occupations Code[,] Chapter 505; or

(I) a licensed marriage and family therapist licensed under Texas Occupations Code[,] Chapter 502.

(10) Audio-only technology--A synchronous interactive, two-way audio communication that uses only sound and that conforms to privacy requirements of the Health Insurance Portability and Accountability Act. Audio-only includes the use of telephonic communication. Audio-only does not include audiovisual or in-person communication.

[(10) ATP--Absence for trial placement. When an individual, currently admitted to an SMHF, is physically away from the SMHF for the SMHF to evaluate the individual's adjustment to a particular living arrangement before the individual's discharge and as a potential residence following discharge. An ATP is a type of furlough, as referenced in Texas Health and Safety Code, Chapter 574, Subchapter F.]

(11) Audiovisual technology--A synchronous interactive, two-way audio and video communication that conforms to privacy requirements under the Health Insurance Portability and Accountability Act. Audiovisual does not include audio-only or in-person communication.

(12) [(11)] Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code §662.021.

(13) [(12)] Capacity--An individual's ability to understand and appreciate the nature and consequences of a decision regarding the individual's medical treatment, and the ability of the individual to reach an informed decision in the matter.

(14) [(13)] Child--An individual who is at least three years of age, but younger than 13 years of age.

(15) CoC liaison--Continuity of care liaison. A dedicated full-time staff member who is a QMHP-CS or LPHA that facilitates continuity of care.

(16) [(14)] Continuity of care--Activities designed to ensure an individual is provided uninterrupted services during a transition between inpatient and outpatient services and that assist the individual, and the individual's LAR if applicable, in identifying, accessing, and coordinating LMHA or LBHA services and other appropriate services and supports in the community needed by the individual, including:

(A) assisting with admissions and discharges;

(B) facilitating access to appropriate services and supports in the community, including identifying and connecting the individual with community resources, and coordinating the provision of services;

(C) participating in developing and reviewing the individual's recovery or treatment plan;

(D) promoting implementation of the individual's recovery or treatment plan; and

(E) coordinating notification of continuity of care services between the individual and the individual's family and any other person providing support as authorized by the individual, and the individual's LAR, if applicable [any].

(17) [(15)] Continuity of care worker--A [An LMHA, LBHA, or] LIDDA staff member responsible for providing continuity of care services. [The staff member may collaborate with a peer specialist, recovery specialist, or family partner to provide continuity of services.]

(18) [(16)] COPSD--Co-occurring psychiatric and substance use disorder.

(19) [(17)] COPSD model--An application of evidence-based practices for an individual diagnosed with co-occurring conditions of psychiatric [mental illness] and substance use disorder.

(20) [(18)] CPB--Contracted psychiatric bed. A facility with an HHSC-contracted [A state-funded contracted] psychiatric bed that:

(A) includes a community mental health hospital and a private psychiatric bed that:

(i) [(A)] is authorized by an LMHA or LBHA; and

(ii) [(B)] is used for inpatient care in the community; [,] and [this]

(B) does not include a crisis respite unit, crisis residential unit, an extended observation unit, or a crisis stabilization unit.

(21) [(19)] CRCG--Community Resource Coordination Group. A local interagency group comprised of public and private providers who collaborate to develop individualized service plans for individuals whose needs may be met through interagency coordination and cooperation. CRCGs are established and operate in accordance with a Memorandum of Understanding on Services for Persons Needing Multiagency Services, as required by Texas Government Code §531.055.

(22) [(20)] Crisis--A situation in which:

(A) an individual presents an immediate danger to self or others;

(B) an individual's mental or physical health is at risk of serious deterioration; or

(C) an individual believes the individual [he] presents an immediate danger to self or others, or the individual's mental or physical health is at risk of serious deterioration.

(23) [(21)] Crisis treatment alternatives--Community-based facilities or units and services providing short-term, residential crisis treatment to ameliorate a behavioral health crisis in the least restrictive and most appropriate environment, including crisis stabilization units, extended observation units, crisis residential units, and crisis respite units. The intensity and scope of services varies by facility type and is available in a local service area based upon the local needs and characteristics of the community.

(24) [(22)] Day--A calendar day, unless otherwise specified [Calendar day].

(25) [(23)] DD--Developmental disability. A disability that meets the criteria described in [As listed in the] Texas Health and Safety Code §531.002(15). [§531.002, an individual with a severe, chronic disability attributable to a mental or physical impairment or a combination of mental and physical impairments that:]

[(A) manifests before the person reaches 22 years of age;]

[(B) is likely to continue indefinitely;]

[(C) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of a lifelong or extended duration and are individually planned and coordinated; and]

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

[(i) self-care;]

[(ii) receptive and expressive language;]

[(iii) learning;]

[(iv) mobility;]

[(v) self-direction;]

[(vi) capacity for independent living; and]

[(vii) economic self-sufficiency.]

(26) [(24)] Designated LMHA or LBHA--The LMHA or LBHA:

(A) that serves the individual's county of residence, which is determined in accordance with §306.162 of this subchapter (relating to Determining County of Residence); or

(B) that does not serve the individual's county of residence but has taken responsibility for ensuring the individual's [LMHA or LBHA] services.

(27) DFPS--Texas Department of Family and Protective Services or its designee.

(28) [(25)] Discharge--Means:

(A) the [From an SMHF or a facility with a CPB: The] release of an individual from the custody and care of a provider of inpatient services; or [.]

(B) the [From LMHA or LBHA services: The] termination of LMHA or LBHA services delivered to an individual by the individual's [an] LMHA or LBHA.

(29) Discharge planning specialist--A designated state hospital staff member responsible for coordinating continuity of care services with a specific focus on an individual's community transition in accordance with Texas Health and Safety Code §534.0535. This term is synonymous with a "transition support specialist."

(30) [(26)] Discharged unexpectedly--A discharge from the custody and care of a provider of inpatient services [an SMHF or facility with a CPB]:

(A) due to an individual's unauthorized departure;

(B) at the individual's request;

(C) due to a court releasing the individual;

(D) due to the death of the individual; or

(E) due to the execution of an arrest warrant for the individual.

(31) DSM--Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

(32) [(27)] Emergency medical condition--This term has the meaning assigned by the Emergency Medical Treatment and Active Labor Act (42 U.S.C. §1395dd), regarding Examination and treatment for emergency medical conditions and women in labor. [A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, or symptoms of substance use disorder) such that the absence of immediate medical attention could reasonably result in:]

[(A) placing the health of the individual (or with respect to a pregnant woman, the health of the woman or her unborn child) or others in serious jeopardy;]

[(B) serious impairment to bodily functions;]

[(C) serious dysfunction of any bodily organ or part;]

[(D) serious disfigurement; or]

[(E) in the case of a pregnant woman having contractions:]

[(i) inadequate time to affect a safe transfer to another hospital before delivery; or]

[(ii) a transfer posing a threat to the health and safety of the woman or the unborn child.]

[(28) Face-to-face--A form of contact occurring in person or through the use of audiovisual or other telecommunications technology.]

[(29) Facility--A state mental health facility, private psychiatric hospital, medical hospital, and community setting, but does not include a nursing facility or an assisted living facility].

(33) Family partner--An experienced, trained primary caregiver, such as the parent of an individual with a mental illness or serious emotional disturbance, who provides peer mentoring, education, and support to the caregivers of a child who is receiving mental health community services in accordance with Chapter 301, Subchapter G of this title (relating to Mental Health Community Services Standards).

(34) Furlough--The authorization for an individual to leave from a state hospital or CPB for longer than a 72-hour period in accordance with Texas Health and Safety Code Chapter 574, Subchapter F.

(35) [(30)] HHSC--Texas Health and Human Services Commission or its designee.

(36) [(31)] ID--Intellectual disability. A disability that meets the criteria in [Consistent with] Texas Health and Safety Code §591.003[, significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior and originating before age 18].

(37) [(32)] Individual--A person seeking or receiving services under this subchapter.

[(33) Individual involuntarily receiving treatment--An individual receiving inpatient services based on an admission to a state mental health facility or a facility with a CPB made in accordance with:]

[(A) §306.176 of this subchapter;]

[(B) §306.177 of this subchapter (relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services);]

[(C) an order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034 or Texas Family Code, Chapter 55;]

[(D) an order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035 or Texas Family Code, Chapter 55;]

[(E) an order for commitment issued in accordance with Texas Code of Criminal Procedure, Chapter 46B; or]

[(F) an order for commitment issued in accordance with Texas Code of Criminal Procedure, Chapter 46C.]

[(34) Individual voluntarily receiving treatment--An individual receiving inpatient services based on an admission made in accordance with:]

[(A) §306.175 of this subchapter; or]

[(B) §306.178 of this subchapter (relating to Voluntary Treatment Following Involuntary Admission).]

(38) [(35)] Inpatient services--Residential psychiatric treatment provided to an individual in:

(A) a state hospital; [an SMHF,]

(B) a [facility with a] CPB; [,]

(C) a hospital licensed under [the] Texas Health and Safety Code[,] Chapter 241 or Chapter 577; [, or]

(D) a crisis stabilization unit [CSU] licensed under Chapter 510 of this title (relating to Private Psychiatric Hospitals and Crisis Stabilization Units); or

(E) any other type of mental health hospital.

(39) In person--Within the physical presence of another person. In person does not include audiovisual or audio-only communication.

(40) [(36)] Intake assessment--The administrative process conducted by an assessment professional for:

(A) gathering information about an individual, [a prospective patient] including the psychiatric and medical history, social history, symptomology, and support system; and

(B) giving the individual [a prospective patient] information about the facility and the facility's treatment and services.

(41) Involuntary admission--An individual receiving inpatient services based on an admission to a state hospital or CPB in accordance with:

(A) §306.176 of this subchapter (relating to Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed for Emergency Detention);

(B) §306.177 of this subchapter (relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services);

(C) an order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034 or Texas Family Code Chapter 55;

(D) an order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035 or Texas Family Code Chapter 55;

(E) an order for commitment issued as described in Texas Code of Criminal Procedure Chapter 46B; or

(F) an order for commitment issued as described in Texas Code of Criminal Procedure Chapter 46C.

(42) [(37)] LAR--Legally authorized representative. A person authorized by state law to act on behalf of an individual. [for the purposes of:]

[(A) admission, transfer or discharge that includes:]

[(i) a parent, non-Department of Family and Protective Services managing conservator or guardian of a minor;]

[(ii) a Department of Family and Protective Service managing conservator of a minor acting pursuant to Texas Health and Safety Code §572.001 (c-2) - (c-4); and]

[(iii) a person eligible to consent to treatment for a minor under §32.001(a), Texas Family Code, or a person who may request from a district court authorization under Texas Family Code, Chapter 35 for the temporary admission of a minor.]

[(B) consent on behalf of an individual with regard to a matter described in this subchapter other than admission, transfer or discharge includes:]

[(i) persons described by subparagraph (A) of this paragraph; and]

[(ii) an agent acting under a Medical Power of Attorney under Texas Health and Safety Code, Chapter 166 or a Declaration for Mental Health Treatment under Texas Civil Practice and Remedies Code, Chapter 137.]

(43) [(38)] LBHA--Local behavioral health authority. An entity designated as an LBHA by HHSC in accordance with Texas Health and Safety Code §533.0356(a) [§533.0356].

(44) [(39)] LIDDA--Local intellectual and developmental disability authority. An entity designated by HHSC in accordance with Texas Health and Safety Code §533A.035(a) [§533A.035].

(45) [(40)] LMHA--Local mental health authority. An entity designated as an LMHA by HHSC in accordance with Texas Health and Safety Code §533.035(a).

(46) [(41)] LMHA or LBHA network provider--An entity that provides mental health and SUD services in the community pursuant to a contract or memorandum of understanding with an LMHA or LBHA, including that part of an LMHA or LBHA directly providing mental health services.

(47) [(42)] LMHA or LBHA services--Inpatient mental health and outpatient mental health and SUD services provided by an LMHA or LBHA network provider to an individual in the individual's home community.

(48) [(43)] Local service area--A geographic area composed of one or more Texas counties defining the population that may receive services from an LMHA, [or] LBHA, or LIDDA.

[(44) MCO--Managed care organization. An entity governed by Chapter 843 of the Texas Insurance Code to operate as a health maintenance organization or to issue a private provider benefit plan.]

(49) LPHA--Licensed practitioner of the healing arts. This term has the meaning as defined in §301.303 of this title (relating to Definitions).

(50) [(45)] Mental illness--This term has the meaning as assigned by Texas Health and Safety Code §571.003. [An illness, disease, or condition, other than a sole diagnosis of epilepsy, dementia, substance use disorder, ID, or DD that:]

[(A) substantially impairs an individual's thought, perception of reality, emotional process, or judgment; or]

[(B) grossly impairs behavior as demonstrated by recent disturbed behavior.]

(51) [(46)] MH priority population--Mental health priority population. As identified in state performance contracts with LMHAs or LBHAs, those groups of children and adolescents[, adolescents , and adults] with SED, or adults with severe and persistent mental illness, [mental illness or serious emotional disturbance] assessed as [most] in need of mental health services.

(52) [(47)] Minor--An individual younger than 18 years of age who has not been emancipated under Texas Family Code Chapter 31.

(53) [(48)] Nursing facility--A Medicaid-certified [long-term care] facility licensed in accordance with [by HHSC as a nursing home, nursing facility, or skilled nursing facility as defined in] Texas Health and Safety Code[,] Chapter 242.

(54) [(49)] Offender with special needs--An individual who has a terminal or serious medical condition, a mental illness, an ID, a DD, or a physical disability, and is served by the Texas Correctional Office on Offenders with Medical or Mental Impairments as provided in Texas Health and Safety Code[,] Chapter 614.

(55) [(50)] Ombudsman--The Ombudsman for Behavioral Health Access to Care established by HHSC in accordance with Texas Government Code §531.9933 [§531.02251, which serves as a neutral party to help individuals, including individuals who are uninsured or have public or private health benefit coverage. The behavioral health care providers navigate and resolve issues related to the individual's access to behavioral health care, including care for mental health conditions and substance use disorders].

(56) Outpatient management plan--The prescribed regimen of medical, psychiatric, or psychological care or treatment as defined in Texas Code of Criminal Procedure Article 46C.263(c).

(57) [(51)] PASRR--Preadmission screening and resident review as defined in §303.102 of this title (relating to Definitions)[in accordance with 40 TAC Chapter 19, Subchapter BB (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR))].

[(52) PASRR Level I screening--The process of screening an individual to identify whether the individual is suspected of having a mental illness, ID, or DD.]

[(53) PASRR Level II evaluation--A face-to-face evaluation of an individual suspected of having a mental illness, ID, or DD performed by a LIDDA, LMHA, or LBHA to determine if the individual has a mental illness, ID, or DD, and if so, to:]

[(A) assess the individual's need for care in a nursing facility;]

[(B) assess the individual's need for nursing facility specialized services, LIDDA specialized services, and LMHA or LBHA specialized services; and]

[(C) identify alternate placement options.]

(58) Pass--The authorization for an individual to leave from a state hospital or CPB for not more than a 72-hour period in accordance with Texas Health and Safety Code Chapter 574, Subchapter F.

(59) PE--PASRR level II evaluation. This term has the meaning as defined in §303.102 of this title.

(60) [(54)] Peer specialist--A person who uses lived experience in addition to skills learned in formal training, to deliver strengths-based, person-centered services to promote an individual's recovery and resiliency in accordance with 1 TAC Chapter 354, Subchapter N (relating to Peer Specialist Services).

(61) [(55)] Permanent residence--The physical location in the community where an individual lives, or if a minor, where the minor's parents or legal guardian lives. A post office box is not considered a permanent residence.

(62) PL1--PASRR Level I screening. This term has the meaning as defined in §303.102 of this title.

(63) [(56)] Preliminary examination--An assessment for medical stability and a psychiatric examination in accordance with Texas Health and Safety Code §573.022(a)(2).

(64) [(57)] QMHP-CS--Qualified mental health professional-community services. An LMHA or LBHA [A] staff member who meets the qualifications [requirements ] and performs the functions described in Chapter 301, Subchapter G of this title (relating to Mental Health Community Services Standards).

(65) [(58)] Recovery--A process of change through which an individual improves the individual's [individuals improve their] health and wellness, lives [live] a self-directed life, and strives [strive] to reach the individual's [their] full potential.

(66) [(59)] Recovery or treatment plan--A written plan:

(A) developed in collaboration with an individual, or the individual's LAR if applicable [required], and a QMHP-CS or LPHA [Licensed Practitioner of the Healing Arts (LPHA)] as defined in §301.303 of this title [(relating to Definitions)];

(B) amended at any time based on an individual's needs or requests;

(C) that guides the recovery treatment process and fosters resiliency;

(D) completed in conjunction with the uniform assessment;

(E) that identifies the individual's changing strengths, capacities, goals, preferences, needs, and desired outcomes; and

(F) that includes recommended services and supports or reasons for the exclusion of services and supports.

(67) [(60)] Screening--Activities [performed by a QMHP-CS] to:

(A) collect triage information through [face-to-face or telephone] interviews with an individual or collateral contact;

(B) determine if the individual's need is emergent, urgent, or routine, and conducted before the [face-to-face ] assessment to determine the need for emergency services; and

(C) determine the need for an in-depth assessment.

(68) SED--Serious emotional disturbance. A disorder that meets the criteria described in Texas Government Code §531.251.

[(61) SMHF--State mental health facility. A state hospital or a state center with an inpatient psychiatric component.]

(69) [(62)] SSLC--State supported living center. Consistent with Texas Health and Safety Code §531.002, a residential facility operated by HHSC [the State] to provide an individual [individuals] with an ID a variety of services, including medical treatment, specialized therapy, and training in the acquisition of personal, social, and vocational skills.

(70) State hospital--Consistent with Texas Health and Safety Code §552.002, a mental health facility operated by HHSC, including Waco Center for Youth.

(71) [(63)] SUD--Substance use disorder. [--] The use of one or more drugs, including alcohol, which significantly and negatively impacts one or more major areas of life functioning and which meets the criteria for SUD [substance use] as described in the version of the DSM currently recognized by HHSC[current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association].

(72) [(64)] TAC--Texas Administrative Code.

(73) [(65)] TCOOMMI--Texas Correctional Office on Offenders with Medical or Mental Impairments or its designee.

[(66) Transfer--To move from one facility to another facility.]

(74) [(67)] Treating physician--A physician who coordinates and oversees an individual's treatment.

(75) [(68)] Treatment team--A group of treatment providers, working with an individual, the individual's LAR[,] if applicable [any], and the LMHA, LBHA, or LIDDA [who work together] in a coordinated manner to provide comprehensive mental health, SUD, and ID services to the individual.

(76) [(69)] Uniform assessment--An assessment tool adopted by HHSC under §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) used for recommending an individual's level of care.

(77) Voluntary admission--An individual receiving inpatient services based on an admission made in accordance with:

(A) §306.175 of this subchapter;

(B) §306.178 of this subchapter (relating to Voluntary Treatment Following Involuntary Admission);

(C) Texas Health and Safety Code §572.002; or

(D) Texas Health and Safety Code §572.0025.

§306.154.Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services.

(a) [Right of an individual eligible for Medicaid to request a fair hearing.] Any individual who is eligible for Medicaid and whose request for eligibility to receive LMHA or LBHA Medicaid services is denied or is not acted upon with reasonable promptness [, or whose services have been terminated, suspended, or reduced by HHSC,] is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearings Rules).

(b) Any individual who is eligible for Medicaid and whose services have been terminated, suspended, or reduced by HHSC is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A.

(c) [(b)] [Right of an individual not eligible for Medicaid to request an appeal.] Any individual who has not applied for or is not eligible for Medicaid, whose request for eligibility to receive LMHA or LBHA services is denied or is not acted upon with reasonable promptness, or whose services have been terminated, suspended, or reduced by a provider, is entitled to notification and right of appeal in accordance with 25 TAC §401.464 (relating to Notification and Appeals Process).

(d) [(c)] At any time, an individual may contact the Ombudsman for additional information and resources by calling toll-free 1-800-252-8154 [(1-800-252-8154)] or on the HHSC website [online at hhs.texas.gov/ombudsman].

§306.155.Local Mental Health Authority, Local Behavioral Health Authority, and Continuity of Care Liaison Responsibilities.

LMHAs and LBHAs must develop policies and procedures that require:

(1) the LMHA or LBHA to employ at least one dedicated full-time staff member who is a QMHP-CS or LPHA to act as the CoC liaison to support continuity of care activities;

(2) a CoC liaison to delegate continuity of care responsibilities to other continuity of care staff, if necessary;

(3) a CoC liaison not to have assigned duties outside of activities supporting continuity of care and related functions;

(4) an alternate staff member to act as the CoC liaison in the absence of the person identified as the primary CoC liaison;

(5) communication and facilitation of services between the continuity of care team and parties involved in the individual's care; including:

(A) a mental health peer specialist or a recovery support peer specialist as described in 1 TAC §354.3159 (relating to Core and Supplemental Training); or

(B) a family partner;

(6) coordination with other state agencies responsible for the care of a child such as DFPS, the Texas Department of Criminal Justice, or the Texas Juvenile Justice Department;

(7) initiation of contact with the parties involved in the individual's care at a state hospital or CPB within three business days after admission;

(8) coordination of post-discharge activities with local community parties involved in the individual's care, including other LMHAs, LBHAs, and LIDDAs;

(9) a CoC liaison to conduct continuity of care activities, including responding to communications from a facility within three business days after the facility sent the communication;

(10) the LMHA or LBHA to provide notification of the CoC liaison's contact information, including if there is a CoC liaison personnel change, and the CoC liaison's designated alternate staff member's contact information within three business days to each facility that has an individual admitted in the LMHA's or LBHA's care;

(11) a QMHP-CS or LPHA acting as the CoC liaison to maintain the QMHP-CS' certification as a QMHP-CS or the LPHA's licensure as an LPHA;

(12) identification of a process for obtaining services and resources for an individual, as needed;

(13) LMHA or LBHA representation by an assigned CoC liaison in treatment team meetings at a state hospital or CPB as requested by the facility;

(14) the availability of a CoC liaison to communicate with providers from 8:00 a.m. to 5:00 p.m. on business days, coordinate coverage to respond to continuity of care service needs 24 hours a day, and follow up as necessary to ensure continuity of care needs are met;

(15) monitoring of the number of individuals who are currently admitted to state hospitals or CPBs and the number of individuals who are discharged from these facilities;

(16) a CoC liaison to conduct a uniform assessment, either in person or by audiovisual technology, to ensure a level of care determination is made within ten business days before discharge, and all LMHA, LBHA or LIDDA appointments scheduled in advance for needed programs and services, to ensure there is no disruption in services or support at the time of discharge and community integration;

(17) LMHA or LBHA staff to participate in all applicable court proceedings;

(18) LMHA or LBHA staff to participate in the development of an outpatient management plan for an individual who is on a Texas Code of Criminal Procedure Chapter 46C commitment and whom a state hospital identifies as suitable for outpatient placement; and

(19) a CoC liaison to initiate transition planning with the receiving LMHA or LBHA when the individual is changing LMHAs or LBHAs.

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 August 28, 2024.

TRD-202404027

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §§306.161 - 306.163

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 §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendments affect Texas Government Code §531.0055.

§306.161.Screening and Assessment.

(a) If an individual in an LMHA's or LBHA's local service area is in crisis, the [an] LMHA or LBHA must ensure: [ensures]

(1) immediate screening by a staff member trained in crisis screening, in accordance with §301.327(d)(1)(A)(ii) of this title (relating to Access to Mental Health Community Services); and[,]

(2) if emergency care services are recommended based on the screening, ensure the staff member complies with §301.327(d)(1)(B) [a face-to-face intake assessment of an individual in the LMHA's or LBHA's local service area in accordance with §301.327] of this title [(relating to Access to Mental Health Community Services)].

(b) When the crisis is resolved, the LMHA or LBHA must assess the individual using the uniform assessment and determine:

(1) referral for ongoing services at the LMHA or LBHA;

(2) referral to an alternate provider;

(3) referral to community-based crisis treatment alternative as described in §306.163 of this division (relating to Most Appropriate and Available Treatment Options);

(4) the individual's transportation by identifying and ensuring the individual's transportation needs were met; or

(5) no referral is needed.

(c) If an individual who is not in crisis presents for services, an LMHA or LBHA staff member [screens each individual presenting for services at the LMHA or LBHA as follows]:

(1) must determine whether the individual's county of residence is within the LMHA's or LBHA's local service area [an LMHA or LBHA staff who is a QMHP-CS or LPHA conducts a screening]; and

(2) who is a QMHP-CS or LPHA must conduct a screening [an LMHA or LBHA staff determines whether the individual's county of residence is within the LMHA's or LBHA's local service area].

(d) If the individual's county of residence is within the LMHA's or LBHA's local service area and the screenings described in subsections (b) [(a)] and (c) of this section indicates an intake assessment is needed, the LMHA or LBHA must conduct [conducts] an assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization).

(1) The LMHA or LBHA must [LMHAs and LBHAs] serve an individual [individuals] in the MH priority population designated by HHSC. For an individual in the MH priority population, the LMHA or LBHA must identify [identifies] which services the individual may be eligible to receive and, if applicable, must: [appropriate, determines whether the individual receives]

(A) provide services immediately; or [places]

(B) place the individual on a waiting list for services and refer [refers] the individual to other community resources.

(2) An individual who is [Individuals who are] enrolled in Medicaid must receive services immediately in accordance with §301.327 of this title (relating to Access to Mental Health Community Services) and pursuant to Medicaid regulations and policies [and may not be placed on a waiting list].

(3) An LMHA or LBHA must serve an individual in accordance with §301.327 of this title.

(4) For an individual not in the MH priority population, the LMHA or LBHA must provide the individual with written notification within three business days regarding:

(A) the denial of services and the opportunity to appeal in accordance with §306.154 of this subchapter (relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services); and

(B) how to contact the Ombudsman in a language the individual understands for [the availability of] information or [and] assistance [from the Ombudsman by contacting the Ombudsman] at 1-800-252-8154 or on the HHSC website [online at hhs.texas.gov/ombudsman].

§306.162.Determining County of Residence.

(a) County of Residence for Adults.

(1) An adult's county of residence is the county [which the adult or the adult's LAR indicates is the county] of the adult's permanent residence or, if applicable, the county of the LAR's permanent residence, unless there is a preponderance of evidence to the contrary. If the adult is not a Texas resident or indicates no permanent address, the adult's county of residence is the county in which the evidence indicates the adult resides.

(2) If an adult is unable to communicate the location of the adult's permanent residence, [and] there is no evidence indicating the location of an [the] adult's permanent residence, or if an adult is not a Texas resident, the adult's county of residence is the county in which the adult is physically present when the adult requests or requires services.

(3) The county in which the paying LMHA or LBHA is located is the adult's county of residence if the individual receives services:

(A) delivered in the local service area of another LMHA or LBHA for an adult's community mental health services; or

(B) for an adult's living arrangement located outside the paying LMHA's or LBHA's local service area.

[(3) If an LMHA or LBHA is paying for an adult's community mental health services delivered in the local service area of another LMHA or LBHA, or if an LMHA or LBHA is paying for an adult's living arrangement that is located outside the LMHA's or LBHA's local service area, the county in which the paying LMHA or LBHA is located is the adult's county of residence.]

(b) County of Residence for Minors.

(1) Except as provided in paragraph (2) of this subsection, a minor's county of residence is the county in which the minor's LAR's permanent residence is located.

(2) A minor's county of residence is the county in which the minor currently resides if:

(A) it cannot be determined in which county the minor's LAR's permanent residence is located;

(B) a state agency is the minor's LAR;

(C) the minor does not have an LAR; or

(D) the minor is at least 16 years of age and self-enrolling into services.

(3) A minor in DFPS conservatorship may continue receiving services from the LMHA or LBHA where the minor was last enrolled in services until another appropriate placement is established. Once placement is established, a transfer meeting will be held from the transferring LMHA or LBHA to the receiving LMHA or LBHA and the minor's LAR.

(c) Disagreements [Dispute] regarding county of residence initiated by an LMHA or LBHA.

(1) The LMHA or LBHA must initiate or continue providing clinically necessary services, including discharge planning, until a disagreement regarding county of residence is resolved [during the dispute resolution process].

(2) If an LMHA or LBHA initiates a disagreement regarding county of residence [dispute] that the executive directors of the affected LMHAs or LBHAs cannot resolve, the HHSC performance contract manager [manager(s)] of the affected LMHAs or LBHAs resolves the disagreement [dispute].

(d) Disagreements [Disputes] regarding county of residence initiated by an individual or another person or entity on behalf of the [an] individual. The Ombudsman may consult with the HHSC performance contract manager [manager(s)] of the affected LMHAs or LBHAs and help resolve a disagreement [dispute] initiated by an individual or by another person or entity [or] on behalf of the [an] individual.

(e) Changing county of residence status. If an individual currently receiving LMHA or LBHA services moves the individual's permanent residence to a county within the local service area of another LMHA or LBHA, [Changing an individual's county of residence requires agreement between] the LMHAs or LBHAs affected by the change must comply with [, except as provided in] §306.195 of this subchapter (relating to Changing Local Mental Health Authorities or Local Behavioral Health Authorities).

§306.163.Most Appropriate and Available Treatment Options.

(a) Recommendation for treatment. The designated LMHA or LBHA is responsible for recommending the most appropriate and available treatment alternative for an individual in need of mental health or SUD services.

(b) Inpatient services.

(1) Before an LMHA or LBHA refers an individual for inpatient services, the LMHA or LBHA must screen and assess the individual to determine if the individual requires inpatient services.

(2) If the screening and assessment indicates the individual requires inpatient services and inpatient services are the least restrictive and most appropriate setting available, the LMHA or LBHA must refer [refers] the individual:

(A) to a state hospital or [an SMHF or facility with a] CPB, if the LMHA or LBHA determines that the individual meets the criteria for admission; or

(B) to an LMHA or LBHA network provider of inpatient services.

(3) If the individual is identified in the applicable HHSC automation system as having an ID or a DD, the LMHA or LBHA must inform [informs] the designated LIDDA that the individual has been referred for inpatient services.

(4) If the LMHA, LBHA, or LMHA or LBHA-network provider refers the individual for inpatient services, the LMHA or LBHA must communicate necessary information to the contracted inpatient provider before or at the time of admission, including the individual's:

(A) identifying information, including address;

(B) legal status, for example [(e.g.,] regarding guardianship, charges pending, or custody, as applicable;

(C) pertinent medical and medication information, including known disabilities;

(D) behavioral information, including information regarding COPSD;

(E) other pertinent treatment information;

(F) finances, third-party coverage, and other benefits, if known; and

(G) advance directive.

(5) If an LMHA or LBHA, other than the individual's designated LMHA or LBHA, refers the individual for inpatient services, the state hospital or [the SMHF or facility with a] CPB must notify [notifies] the individual's designated LMHA or LBHA of the referral for inpatient services by the end of the next business day.

(6) The designated LMHA or LBHA must assign a CoC liaison [assigns a continuity of care worker] to an individual admitted to a state hospital, [an SMHF, a facility with] a CPB, or an LMHA or LBHA inpatient services network provider.

(7) If the individual has an ID or a DD, the designated LIDDA must assign [assigns] a continuity of care worker to the individual.

(8) The LMHA or LBHA CoC liaison [continuity of care worker], and LIDDA continuity of care worker as applicable, are responsible for the facilitation of the individual's continuity of services.

(9) The LMHA or LBHA is responsible for continuity of care and must plan to the greatest extent possible for the successful transition of individuals who are determined by a state hospital or CPB to be clinically appropriate for discharge from these facilities to a community setting in accordance with Texas Health and Safety Code §534.0535.

(c) Community-based crisis treatment options.

(1) An LMHA or LBHA must ensure the provision of crisis services to an individual experiencing a crisis while the individual is in its local service area.

(2) An individual [Individuals] in need of a higher level of care, but not requiring inpatient services, has [have] the option, as available, for admission to other services such as a diversion center, crisis respite unit, crisis residential unit, extended observation unit, or crisis stabilization unit.

(d) LMHA or LBHA Services.

(1) If an LMHA or LBHA admits an individual to LMHA or LBHA services, the LMHA or LBHA must ensure [ensures] the provision of services in the least restrictive and most appropriate [in the most integrated] setting available.

(2) The LMHA or LBHA must assign [assigns], to an individual receiving services, a staff member who is responsible for coordinating the individual's services.

(e) Court Ordered Treatment. The LMHA or LBHA must provide services to an individual ordered by a court to participate in outpatient mental health services or competency restoration services, if available, when the court identifies the LMHA or LBHA as being responsible for those services.

(f) Referral to alternate provider.

(1) If an individual requests a referral to an alternate provider, and there [it] is not a court order [ordered] to receive services from the LMHA or LBHA, the LMHA or LBHA must make [makes] a referral to an alternate provider in accordance with the individual's request.

(2) If an individual has third-party coverage, but the coverage will not pay for needed services because the designated LMHA or LBHA does not have a provider in its network that is approved by the third-party coverage, the designated LMHA or LBHA must comply [acts in accordance] with 25 TAC §412.106(c)(2) (relating to Determination of Ability to Pay).

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 August 28, 2024.

TRD-202404029

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §§306.171 - 306.178

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 §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendments affect Texas Government Code §531.0055.

§306.171.General Admission Criteria for a State Hospital [Mental Health Facility] or a Facility with a Contracted Psychiatric Bed.

(a) With the exceptions of Waco Center for Youth, a maximum-security unit, and an adolescent forensic unit, a state hospital [an SMHF] or [facility with a] CPB may admit an individual[,] who has been assessed by an LMHA or LBHA and recommended for inpatient admission[,] only if the individual has a mental illness and[,] because [as a result] of the mental illness:

(1) presents a substantial risk of serious harm to self or others; or

(2) evidences a substantial risk of mental or physical deterioration.

(b) An individual's admission to a state hospital [an SMHF] or [facility with a] CPB may not occur if the individual:

(1) has a condition that requires medical [specialized] care that is not available at the state hospital or [the SMHF or facility with a] CPB; or

(2) has a physical medical condition that is unstable and could reasonably require inpatient medical treatment for the condition.

(c) If an individual arrives at a state hospital [an SMHF] or [facility with a] CPB for mental health services, and the designated LMHA or LBHA did not screen or refer the individual [was not screened or referred by an LMHA or LBHA] as described in §306.163 of this subchapter (relating to Most Appropriate and Available Treatment Options):

(1) the state hospital [SMHF] or [facility with a] CPB must notify [notifies ] the designated LMHA or LBHA that the individual has presented for services at the state hospital [the SMHF] or [facility with a] CPB within three business days of the individual's presentation for services; and

(2) the state hospital [SMHF] or [facility with a] CPB physician must determine [determines] if the individual has an emergency medical condition and decide [the physician decides] whether the facility has the capability to treat the emergency medical condition.

(A) If the state hospital [SMHF] or [facility with a] CPB has the capability to treat the emergency medical condition, the facility must admit [admits ] the individual in accordance with [as required by] the Emergency Medical Treatment and Active Labor Act (EMTALA) as described in 42 U.S.C. §1395dd [(42 USC §1395dd]).

(B) If the state hospital [SMHF] or [facility with a] CPB does not have the capability to treat the emergency medical condition[in accordance with EMTALA], the facility must provide [provides] evaluation and treatment within its capability to stabilize the individual and arrange [arranges] for the individual to be transferred to a hospital that has the capability to treat the emergency medical condition in accordance with EMTALA and, as applicable, Medicare and Medicaid regulations.

(d) If an LMHA or LBHA authorized an individual's admission to a state hospital [an SMHF] or [a facility with a] CPB, and the facility determines that the individual does not meet inpatient criteria for admission, the facility must contact [contacts] the designated LMHA or LBHA to coordinate alternate outpatient community services at the time of the admission denial.

(e) The designated LMHA or LBHA must contact the individual, or the individual's LAR if applicable, within 24 hours after being notified that the individual does not meet inpatient admission criteria and notify the individual, or the individual's LAR if applicable, that the LMHA or LBHA will provide referrals and referral follow-up for ongoing services as clinically indicated to address the individual's mental health or other needs.

§306.172.Admission Criteria for Maximum-Security Units.

An individual's admission to a maximum-security unit may occur [occurs] only if the individual is:

(1) committed pursuant to Texas Code of Criminal Procedure Chapter 46B or Chapter 46C [of the Texas Code of Criminal Procedure] and determined to require admission to a maximum-security unit; or

(2) determined manifestly dangerous in accordance with 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness) [HHSC state hospital policies].

§306.173.Admission Criteria for an Adolescent Forensic Unit.

(a) An adolescent forensic unit may admit [admits] an adolescent only if the adolescent meets the criteria described in paragraphs (1), (2), or (3) [a paragraph] of this subsection.

(1) Condition of probation or parole. The adolescent's admission to an adolescent forensic unit fulfills a condition of probation or parole for a juvenile offense if the adolescent:

(A) based on a clinical evaluation, is determined to [be in] need [of specialized] mental health treatment in a secure treatment setting to address a risk of dangerousness [violent behavior] or delinquent conduct;

(B) has COPSD [co-occurring psychiatric and substance use disorders]; or

(C) has exhausted available community resources for treatment and has a letter written [been recommended for admission] by the local CRCG that confirms available community resources have been exhausted.

(2) Commitment under Texas Family Code [,]Chapter 55. The adolescent has been committed to a mental health facility under the Texas Family Code[,] Chapter 55, Subchapter C or D.

(3) Determined manifestly dangerous. The adolescent has been determined manifestly dangerous in accordance with 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness) [HHSC state hospital policies].

(b) An adolescent may not be admitted to an adolescent forensic unit if [a physician determines] the adolescent has an ID.

§306.174.Admission Criteria for Waco Center for Youth.

(a) An individual's admission to Waco Center for Youth may occur [occurs] only if the individual:

(1) is an adolescent, [or an adolescent] whose age at admission allows adequate time for treatment programming before reaching 18 years of age;

(2) has an SED based on the version of the DSM currently recognized by HHSC [is diagnosed as emotionally disturbed];

(3) has a history of behavior adjustment concerns [problems];

(4) needs a structured treatment program in a residential facility; and

(5) is currently receiving LMHA or LBHA services or inpatient services at a state hospital [an SMHF] or [a facility with a] CPB and has been referred for admission to Waco Center for Youth by:

(A) the LMHA, [or] LBHA, or CRCG who confirms [after presentation and endorsement by the local CRCG] that:

(i) all appropriate community-based resources have been exhausted; and

(ii) Waco Center for Youth is the least restrictive and most appropriate environment needed[, the LMHA presents the CRCG letter of recommendation with the referral]; or

[(B) the LMHA or LBHA, following a documented LMHA or LBHA assessment that local resources have been explored and exhausted (if the full CRCG cannot convene in a timely manner); or]

(B) [(C)] a state hospital; or [an SMHF.]

(C) DFPS, as an adolescent under the agency's managing conservatorship in accordance with Texas Health and Safety Code §554.0001.

(b) Waco Center for Youth must [may] not admit:

(1) an individual who is younger than 13 years of age or an adolescent whose age at admission does not allow adequate time for treatment programming based on individual case review before reaching 18 [a child under 10] years of age;

(2) an adolescent who [that] has been found to have engaged in delinquent conduct or conduct indicating a need for supervision under the Texas Family Code, Title 3;

(3) an adolescent who [that] is acutely psychotic, suicidal, homicidal, or seriously violent; or

(4) an adolescent who [that] is determined [by a physician] to have an ID.

(c) If [the] Waco Center for Youth denies admission for services, Waco Center for Youth must provide [provides] the adolescent's LAR and LMHA or LBHA written notification within three business days stating:

(1) the reason for the denial of services; and

(2) that the LAR may appeal the denial by contacting the LMHA or LBHA.

(d) If an adolescent receiving services at Waco Center for Youth requires admission to a psychiatric hospital or another setting or program, the discharge planning process from the psychiatric hospital or another setting or program must include the written clinical appropriateness of readmission to Waco Center for Youth as jointly determined by [includes the joint determination of] the psychiatric hospital or another setting or program and Waco Center for Youth [of the clinical appropriateness of readmission to Waco Center for Youth].

(e) With the agreement of the adolescent's treatment team, the Waco Center for Youth leadership, psychiatric hospital leadership, and the adolescent's LAR, Waco Center for Youth must prioritize the adolescent [is prioritized] for readmission [to Waco Center for Youth].

(f) If a denial occurs under subsection (c) of this section and the adolescent is not currently receiving services from the appropriate LMHA or LBHA, the LMHA or LBHA must assess the adolescent for eligible services and continuity of care based on the adolescent's clinical needs.

§306.175.Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility].

(a) Request for voluntary admission.

(1) In accordance with Texas Health and Safety Code §572.001, a request for voluntary admission of an individual with a mental illness may only be made by:

(A) the individual, if the individual is at least 16 years of age or older;

(B) an [the] LAR who meets the criteria described in paragraph (4)(A)(i) or (iii) of this subsection, if[:] the individual is younger than 18 years of age; or

[(i) the individual is younger than 18 years of age; and]

[(ii) the LAR is described by §306.153(36)(A)(i) or (iii) of this subchapter (relating to Definitions); or]

(C) an LAR who meets the criteria described in paragraph (4)(A)(ii) of this subsection, if the [the LAR, if the LAR is described by §306.153(36)(A)(ii), and] admission is sought pursuant to the provisions of Texas Health and Safety Code §572.001(c-1) - (c-4).

(2) In accordance with Texas Health and Safety Code §572.001(b) and (e), a request for admission must:

(A) be in writing and signed by the LAR or individual making the request; and

(B) include a statement that the LAR or individual making the request:

(i) agrees that the individual will remain [remains] in the state hospital [SMHF] or [facility with a] CPB until the individual's discharge; and

(ii) consents to diagnosis, observation, care, and treatment of the individual until:

(I) the discharge of the individual; or

(II) the individual is entitled to leave the state hospital [SMHF] or [facility with a] CPB, in accordance with Texas Health and Safety Code §572.004, after a request for discharge is made.

(3) The consent given under paragraph (2)(B)(ii) of this subsection does not waive an individual's rights described in:

(A) 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(B) 25 TAC Chapter 405, Subchapter E (relating to Electroconvulsive Therapy (ECT));

(C) 25 TAC Chapter 414, Subchapter I (relating to Consent to Treatment with Psychoactive Medication--Mental Health Services); and

(D) 25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Services).

(4) An LAR is a person authorized by state law to act on behalf of an individual for the purposes of:

(A) admission, transfer, or discharge that includes:

(i) a parent, non-DFPS managing conservator, or guardian;

(ii) a representative of DFPS for a minor under DFPS conservatorship pursuant to Texas Health and Safety Code §572.001 (c-2) - (c-4); or

(iii) a person authorized by a district court under Texas Family Code Chapter 35A to consent for the temporary admission of a minor; or

(B) consent on behalf of an individual regarding a matter described in this subchapter other than admission, transfer, or discharge that includes:

(i) persons described in subparagraph (A) of this paragraph;

(ii) a person eligible to consent to treatment for a minor under Texas Family Code §32.001(a); and

(iii) an agent acting under a Medical Power of Attorney under Texas Health and Safety Code Chapter 166 or a Declaration for Mental Health Treatment under Texas Civil Practice and Remedies Code Chapter 137.

(b) Failure to meet admission criteria. If a [the] physician of a state hospital [an SMHF] or [facility with a] CPB determines that an individual does not meet admission criteria and that community resources may appropriately serve the individual, the facility must contact [contacts] the LMHA, [or] LBHA, or LIDDA to discuss the availability and appropriateness of community-based services for the individual [to receive]. The LMHA, [or] LBHA, or LIDDA must:

(1) contact the individual, [the individual's family or any other person providing support as authorized by the individual,] and the individual's LAR[,] if applicable [any], no later than 24 hours after the LMHA, [or] LBHA, or LIDDA is notified of the failure to meet the admission criteria; and[.]

(2) provide referrals and referral follow-up for ongoing services as clinically indicated to address the individual's mental health needs and SUD needs.

(c) Examination.

(1) A physician must conduct an examination on each individual requesting voluntary admission in accordance with this subsection.

(2) In accordance with Texas Health and Safety Code §572.0025(f)(1)(A), a physician must conduct [conducts ] a physical and psychiatric examination, either in person or through [the use of] audiovisual or other telecommunications technology within 72 hours before voluntary admission or 24 hours after voluntary admission, that includes [for the following]:

(A) an assessment for medical stability; [and]

(B) a psychiatric examination; [,] and [,]

(C) if indicated, an assessment for a SUD [a substance use assessment].

(3) In accordance with Texas Health and Safety Code §572.0025(f)(1); the physician may not delegate the examination to a non-physician.

(d) Meets admission criteria. If, after examination, a [the] physician determines that an [the ] individual meets the admission criteria of a state hospital [the SMHF] or [facility with a] CPB, the state hospital [SMHF] or [facility with a] CPB must admit [admits] the individual.

(e) To meet the needs of an individual who does not meet admission criteria to a state hospital or CPB, an LMHA or LBHA, as applicable, must:

(1) provide community mental health services and supportive services to the individual; or

(2) refer the individual, or the individual's LAR if applicable, to community mental health services and supportive services.

[(e) Does not meet admission criteria. If, after the examination, the physician determines that the individual does not meet the admission criteria of the SMHF or facility with a CPB, the SMHF or the facility with a CPB contacts the designated LMHA or LBHA to coordinate alternate outpatient community services as clinically indicated].

(f) Capacity to consent.

(1) If a physician determines that an individual whose consent is necessary for a voluntary admission does not have the capacity to consent to diagnosis, observation, care, and treatment, the state hospital [SMHF] or [the facility with a] CPB may not voluntarily admit the individual.

(2) When appropriate, the state hospital [the SMHF] or [the facility with a] CPB may initiate [initiates] an emergency detention proceeding in accordance with Texas Health and Safety Code[,] Chapter 573[,] or file [files] an application for court-ordered inpatient mental health services in accordance with Texas Health and Safety Code Chapter 574.

(g) Intake assessment. Before voluntary admission of an individual, in [In] accordance with Texas Health and Safety Code §572.0025(b), an assessment professional for a state hospital [an SMHF] or [facility with a] CPB, must conduct [before voluntary admission of an individual, conducts] an intake assessment with the individual, and the individual's LAR if applicable, to [for]:

(1) obtain [obtaining] relevant information about the individual, including:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives;

(2) explain [explaining], orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E;

(3) explain [explaining], orally and in writing, the state hospital's [SMHF's] or [facility with a] CPB's services and treatment as the services and treatment [they] relate to the individual;

(4) explain [explaining], orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(5) explain [explaining], orally and in writing, the individual trust fund account, charges for services, and the financial responsibility form.

(h) Requirements for voluntary admission. [An SMHF or facility with a CPB may voluntarily admit an individual only if:]

(1) An individual, or the individual's LAR if applicable, must make a request for admission [is made] in accordance with subsection (a) of this section;

(2) a physician must [has]:

(A) in accordance with Texas Health and Safety Code §572.0025(f)(1):

(i) conduct [conducted] an examination in accordance with subsection (c) of this section within 72 hours before the admission or 24 hours after the admission; or

(ii) consult [has consulted] with a physician who has conducted an examination in accordance with subsection (c) of this section within 72 hours before the admission or 24 hours after the admission;

(B) determine [determined] that the individual meets the admission criteria of the state hospital [SMHF] or [facility with a] CPB and that admission is clinically justified; and

(C) issue [issued] an order admitting the individual; [and]

(3) in accordance with Texas Health and Safety Code §572.0025(f)(2), the administrator or designee of the state hospital [SMHF] or [facility with a] CPB must sign [has signed] a written statement agreeing to admit the individual; and[.]

(4) in accordance with Texas Health and Safety Code §572.0026, the state hospital or CPB must have available space for the individual.

(i) Documentation of admission order. In accordance with Texas Health and Safety Code §572.0025(f)(1), the order described in subsection (h)(2)(C) of this section is issued:

(1) in writing and signed by the issuing physician; or

(2) orally or electronically if, within 24 hours after its issuance, the state hospital [SMHF] or [facility with a] CPB has a written order signed by the issuing physician.

(j) Periodic evaluation. To determine the need for continued inpatient treatment, a physician or physician's designee must evaluate and document justification for continued stay for an individual voluntarily receiving acute inpatient treatment as often as clinically indicated, but no less than once a week.

§306.176.Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility] for Emergency Detention.

(a) Acceptance for preliminary examination. In accordance with Texas Health and Safety Code §573.021 and §573.022, a state hospital [an SMHF] or [facility with a] CPB must accept [accepts] for a preliminary examination:

(1) an individual, of any age, who has been apprehended and transported to the state hospital [SMHF] or [facility with a] CPB by a peace officer or emergency medical services personnel in accordance with Texas Health and Safety Code §573.001 or §573.012; or

(2) an adult who has been transported to the state hospital [the SMHF] or [facility with a] CPB by the adult's guardian in accordance with Texas Health and Safety Code §573.003.

(b) Preliminary examination.

(1) A physician must conduct [conducts] a preliminary examination of an individual as soon as possible but not more than 12 hours after the individual is transported to the state hospital [SMHF] or [facility with a] CPB for emergency detention.

(2) The preliminary examination must consist [consists] of:

(A) an assessment for medical stability; and

(B) a psychiatric examination, including a substance use assessment if indicated, to determine if the individual meets the criteria described in subsection (c)(1) of this section.

(c) Requirements for emergency detention. The state hospital [The SMHF] or [facility with a] CPB may admit [admits] an individual for emergency detention if:

(1) in accordance with Texas Health and Safety Code §573.022(a)(2), a physician determines from the preliminary examination that:

(A) the individual has a mental illness;

(B) the individual evidences a substantial risk of serious harm to himself or others;

(C) the described risk of harm is imminent unless the individual is immediately detained; and

(D) emergency detention is the least restrictive means by which the necessary detention may be accomplished;

(2) in accordance with Texas Health and Safety Code §573.022(a)(3), a physician must make [makes] a written statement documenting the determination described in paragraph (1) of this subsection and describing:

(A) the nature of the individual's mental illness;

(B) the risk of harm the individual evidences, demonstrated either by the individual's behavior or by evidence of severe emotional distress and deterioration in the individual's mental condition to the extent that the individual cannot remain at liberty; and

(C) the detailed information on which the physician based the determination;

(3) the physician issues and signs a written order admitting the individual for emergency detention; and

(4) the individual meets the admission criteria of the state hospital [SMHF] or [facility with a] CPB.

(d) Release.

(1) The state hospital [SMHF] or [facility with a] CPB must release [releases ] the individual accepted for a preliminary examination if:

(A) a preliminary examination of the individual has not been conducted within 12 hours after the individual is apprehended and transported to the facility by the peace officer or transported for emergency detention; or

(B) in accordance with Texas Health and Safety Code §573.023(a), the individual is not admitted for emergency detention on completion of the preliminary examination.

(2) If the state hospital [SMHF] or [facility with a] CPB does not admit the individual on an emergency detention in accordance with Texas Health and Safety Code Chapter 573, the facility must contact [contacts] the designated LMHA or LBHA to provide referrals and referral follow-up for ongoing services as clinically indicated to address the individual's mental health needs. [coordinate alternate outpatient community services. The designated LMHA or LBHA must contact the individual within 24 hours of being notified that the individual does not meet inpatient admission criteria to coordinate alternate outpatient community services.]

(A) The LMHA or LBHA in the individual's county of residence must contact the individual within 24 hours of being notified that the individual does not meet emergency detention criteria.

(B) The LMHA or LBHA must provide referrals and referral follow-up for ongoing services as clinically indicated to address the individual's mental health needs, as applicable, when the individual does not meet admission criteria to a state hospital or CPB.

(3) In accordance with Texas Health and Safety Code §576.007(a), if an individual who is an adult is not admitted on emergency detention, the state hospital [SMHF] or [facility with a] CPB must make [makes] a reasonable effort to notify the individual's family, or any other person providing support as authorized by the individual, and the individual's LAR [,] if applicable[any], before the individual [he or she] is released.

(e) Intake assessment. An assessment professional for a state hospital [an SMHF] or [facility with a] CPB must conduct [conducts] an intake assessment as soon as possible, but not later than 24 hours after an individual is admitted for emergency detention. All documents related to the intake assessment must be provided to the individual, or the individual's LAR if applicable, and include[The intake assessment includes]:

(1) a request for [obtaining] relevant information about the individual, such as[including]:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives;

(2) a written and oral explanation of [explaining, orally and in writing,] the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(3) a written and oral explanation of [explaining, orally and in writing,] the state hospital's [SMHF's ] or [facility with a] CPB's services and treatment as the services and treatment [they] relate to the individual;

(4) a written and oral explanation of [explaining, orally and in writing,] the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(5) a written and oral explanation of the individual's [explaining, orally and in writing, the individual] trust fund account, charges for services, and the financial responsibility form.

§306.177.Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services.

(a) A state hospital [An SMHF] or [facility with a] CPB may admit [admits] an individual after receiving:

(1) an order of [under a] protective custody [order] only if a court has issued a protective custody order in accordance with Texas Health and Safety Code §574.022 and the facility has received it; or

(2) for court-ordered inpatient mental health services only if a court has issued:

(A) an order for temporary inpatient mental health services issued in accordance with Texas Health and Safety Code §574.034, or Texas Family Code Chapter 55;

(B) an order for extended inpatient mental health services issued in accordance with Texas Health and Safety Code §574.035, or Texas Family Code Chapter 55;

(C) an order for commitment issued in accordance with the Texas Code of Criminal Procedure [,] Chapter 46B; or

(D) an order for commitment issued in accordance with the Texas Code of Criminal Procedure [,] Chapter 46C.

(b) If a state hospital [an SMHF] or [facility with a] CPB admits an individual in accordance with subsection (a) of this section, a physician, PA, or APRN must issue and sign [issues and signs] a written order admitting the individual. [Admission of an individual in accordance with subsection (a) of this section is not a medical act and does not require the use of independent medical judgment or treatment by the physician, PA, or APRN issuing and signing the written order.]

(c) A state hospital [An SMHF] or [a facility with a] CPB must conduct [conducts ] an intake assessment with the individual, and the individual's LAR if applicable, as soon as possible, but not later than 24 hours after the individual is admitted under a protective custody order or court-ordered inpatient mental health services that [. The intake assessment] includes:

(1) a request for [obtaining] relevant information about the individual, including:

(A) psychiatric and medical history;

(B) social history;

(C) symptomology;

(D) support systems;

(E) finances;

(F) third-party coverage or insurance benefits; and

(G) advance directives; [and]

(2) a written and oral explanation of [explaining, orally and in writing,] the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(3) a written and oral explanation of [explaining, orally and in writing,] the state hospital's [SMHF's ] or [facility with a] CPB's services and treatment as the services and treatment [they] relate to the individual; and

(4) a written and oral explanation of [explaining, orally and in writing,] the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008.

§306.178.Voluntary Treatment Following Involuntary Admission.

A state hospital [An SMHF] or [a facility with a] CPB must continue [continues] to provide inpatient services to an individual involuntarily receiving treatment after the individual is eligible for discharge as described in §306.204 of this subchapter (relating to Discharge of an Individual Involuntarily Receiving Treatment), if, after consultation with the designated LMHA or LBHA:

(1) the state hospital [SMHF] or [facility with a] CPB obtains written consent for voluntary inpatient services that meets the requirements of a request for voluntary admission, as described in §306.175(a) of this subchapter (relating to Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility]); and

(2) the individual's treating physician:

(A) examines the individual; and

(B) based on the examination in subparagraph (A) of this paragraph, issues an order for voluntary inpatient services that meets the requirements of §306.175(i) 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 August 28, 2024.

TRD-202404030

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §§306.191 - 306.195

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 §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendments affect Texas Government Code §531.0055.

§306.191.Transfers Between State Hospitals[State Mental Health Facilities.]

(a) The individual, the individual's LAR if applicable , any other person authorized by the individual, state hospital [SMHF] staff, or the designated LMHA or LBHA, [or another interested person] may initiate a request to transfer an individual from one state hospital [SMHF] to another state hospital [SMHF].

(b) A transfer between state hospitals [SMHFs ] may occur when deemed advisable by the administrator of the transferring state hospital [SMHF] with the agreement of the administrator of the receiving state hospital [SMHF] based on:

(1) the condition and desires of the individual;

(2) geographic residence of the individual;

(3) program and bed availability; and

(4) geographical proximity to the individual's family and any other person authorized by the individual, and the individual's LAR[,] if applicable [any].

(c) An individual voluntarily receiving treatment may not be transferred without the consent of the individual, or the individual's LAR if applicable, who made the request for voluntary admission in accordance with §306.175(a)(1) of this subchapter (relating to Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed[Authorized by an LMHA or LBHA or for a State Mental Health Facility)].

(d) In accordance with Texas Health and Safety Code §575.011 and §575.017, if a state hospital [If an SMHF] transfers an individual receiving court-ordered inpatient mental health services from one state hospital [SMHF] to another state hospital [SMHF], the transferring state hospital must notify [SMHF notifies] the committing court and the designated LMHA, LBHA, or LIDDA of the transfer.

(e) If a prosecuting attorney has notified the state hospital [SMHF] administrator that an individual has criminal charges pending, the administrator must notify [notifies] the judge of the court before which charges are pending if the individual transfers to another state hospital [SMHF].

(f) For [25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness) or HHSC state hospital policies govern transfer of] an individual transferring between a state hospital [an SMHF] and a maximum-security unit or adolescent forensic unit, 25 TAC Chapter 415, Subchapter G (relating to Determination of Manifest Dangerousness) governs the transfer.

§306.192.Transfers Between a State Hospital [Mental Health Facility] and a State Supported Living Center.

(a) For an individual transferring from a state hospital [mental health facility (SMHF)] to an SSLC [a state supported living center (SSLC)]:

(1) the state hospital and designated LIDDA must comply with [following rules and statutes govern the transfer]:

(A) Chapter 904, Subchapter C, of this title [40 TAC Chapter 2, Subchapter F, Division 3](relating to Transfers); and

(B) Texas Health and Safety Code §575.013 and §575.017; and

(2) the state hospital [SMHF] must not transfer the individual before the judge of the committing court enters an order approving the transfer.

(b) For an individual transferring from an SSLC to a state hospital [an SMHF]:

(1) the following rules and statutes govern the transfer:

(A) Section 902.1 of this title (relating to Transfer of an Individual from a State Supported Living Center to a State Hospital); [and]

(B) Texas Health and Safety Code §594.034; and

(C) Texas Health and Safety Code §575.012 [govern the transfer]; and

(2) the receiving state hospital and the initiating SSLC must notify [SMHF notifies] the designated LMHA, LBHA, [local mental health authority or local behavioral health authority] or LIDDA [the designated local intellectual and developmental disability authority] of the transfer.

§306.193.Transfers Between a State Hospital [Mental Health Facility] and an Out-of-State Facility [Institution].

A transfer between a state hospital [an SMHF] and an out-of-state facility is governed by Chapter 903 of this title [1 TAC Chapter 383] (relating to Interstate Compact on Mental Health and Intellectual and Developmental Disabilities [Mental Retardation]).

§306.194.Transfers Between a State Hospital [Mental Health Facility] and Another Facility in Texas.

(a) In accordance with Texas Health and Safety Code §575.011, §575.014, and §575.017 [govern transfer of] an individual may transfer between a state hospital [an SMHF] and a psychiatric hospital not operated by HHSC. The state hospital must notify the designated LMHA or LBHA of the transfer. A state hospital [An SMHF] must not transfer an individual voluntarily receiving treatment without the consent of the individual, or the individual's LAR if applicable, who made the request for voluntary admission in accordance with §306.175(a)(1) of this subchapter (relating to Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility]).

(b) In accordance with Texas Health and Safety Code §575.015, [and §575.017 govern transfer of] an individual may transfer from a state hospital [an SMHF] to a federal agency [correctional facility]. The transferring state hospital must notify [SMHF notifies] the designated LMHA or LBHA of the transfer.

(c) In accordance with Texas Health and Safety Code §575.016 and §575.017, [govern transfer of] an individual may transfer from a facility of the institutional division of the Texas Department of Criminal Justice to a state hospital [an SMHF].

§306.195.Changing Local Mental Health Authorities or Local Behavioral Health Authorities.

(a) If [Requirements related to] an individual currently receiving LMHA or LBHA services [who] intends to move the individual's [his or her] permanent residence to a county within the local service area of another LMHA or LBHA and seek services from the new LMHA or LBHA the following requirements apply.

(1) The originating LMHA or LBHA must:

(A) ensure the CoC liaison submits requested information to the new LMHA or LBHA, including treatment information pertinent to the individual's continuity of care within seven days after the request, and coordinate an intake appointment at the receiving LMHA or LBHA [initiate transition planning with the receiving LMHA or LBHA];

(B) ensure the CoC liaison initiates transition planning with the receiving LMHA or LBHA in accordance with §306.155(19) of this subchapter (relating to Local Mental Health Authority, Local Behavioral Health Authority, and Continuity of Care Liaison Responsibilities);

(C) [(B)] educate the individual, or the individual's LAR if applicable, on the provisions of this subchapter regarding the individual's transfer, consisting of:

(i) information regarding walk-in intake services, if applicable, where no appointment is scheduled for the individual's initial intake to determine eligibility;

(ii) the rights of an individual [individual's rights as] eligible for services; [and]

(iii) notification for the receiving LMHA or LBHA [is notified] of the individual's intent to move the individual's permanent residence;

(iv) the point of contact at the receiving LMHA or LBHA;

(v) the 988 Suicide and Crisis Lifeline; and

(vi) the receiving LMHA's or LBHA's crisis hotline;

(D) [(C)] assist in facilitating and scheduling the intake appointment at the new LMHA or LBHA once the relocation has been confirmed;

[(D) submit to the receiving LMHA or LBHA treatment information pertinent to the individual's continuity of care with submission after the individual's transfer request;]

(E) ensure the individual has sufficient medication for up to 90 days or to last until the medication management appointment date at the receiving LMHA or LBHA; and

(F) maintain the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual has been admitted to services at the receiving LMHA or LBHA, whichever occurs first.[;]

[(G) conduct an intake assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and determine whether the LMHA or LBHA has the capacity to serve the individual immediately or place the individual on a waiting list for services; and]

[(H) authorize an initial 180 days of services for an adult and 90 days for a child or an adolescent for transitioning and ongoing care, including the provision of medications, if the individual is eligible and not on the waiting list.]

(2) The receiving LMHA or LBHA must:

(A) initiate transition planning with the originating LMHA or LBHA;

(B) promptly request records pertinent to the individual's treatment, with the individual's consent, or the consent of the individual's LAR if applicable;

(C) conduct an intake assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and determine whether the individual should receive services immediately or be placed on a waiting list for services;

(D) if the individual is eligible and is not on the waitlist, authorize an initial 180 days of services for an adult and 90 days for a child or an adolescent for transitioning and ongoing care, including the provision of medications;

(E) authorize the individual in the same level of care at the initial assessment in accordance with §301.327 of this title (relating to Access to Mental Health Community Services) and pursuant to Medicaid regulations and policies;

(F) provide the appropriate services based on the clinical needs of the individual;

(G) if there are resource limitations for the receiving LMHA or LBHA, follow the process outlined in §301.327 of this title; and

(H) initiate contact with individual within 14 days.

(3) [(2)] If the individual, or the individual's LAR if applicable, seeks services from the new LMHA or LBHA without prior knowledge of the originating LMHA or LBHA:

(A) the receiving LMHA or LBHA must:

(i) initiate transition planning with the originating LMHA or LBHA;

(ii) promptly request records pertinent to the individual's treatment, with the individual's consent, if applicable;

(iii) conduct an intake assessment in accordance with §301.353(a) of this title and determine whether the individual should receive services immediately or be placed on a waiting list for services; and

(iv) if the individual is eligible and [the individual ] is not on the waitlist, authorize an initial 180 days of services for an adult and 90 days for a child or an adolescent for transitioning and ongoing care, including the provision of medications; and

(B) the originating LMHA or LBHA must:

(i) submit requested information to the new LMHA or LBHA within seven days after the request; and

(ii) maintain the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual has been admitted to services at the new LMHA or LBHA, whichever occurs first.

(4) [(3)] If the new LMHA or LBHA denies services to the individual during the transition period, or reduces or terminates services at the conclusion of the authorized period, the new LMHA or LBHA must notify the individual, or the individual's LAR if applicable, in writing within ten business days of the proposed action and the right to appeal the proposed action in accordance with §306.154 of this subchapter (relating to Notification and Appeals Process for Local Mental Health Authority or Local Behavioral Health Authority Services).

(b) Requirements related to an individual receiving inpatient services at a state hospital [an SMHF] or [facility with a] CPB. If an individual at a state hospital [an SMHF] or [facility with a] CPB, or the individual's LAR if applicable, informs the state hospital [SMHF] or [facility with a] CPB that the individual intends to move the individual's permanent residence to a county within the local service area of another LMHA or LBHA and seek services from the new LMHA or LBHA:

(1) the state hospital [SMHF] or [facility with a] CPB must notify [notifies ] the following of the individual's intent to move the individual's permanent residence upon discharge:

(A) the originating LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the state hospital [SMHF] or [facility with a] CPB; and

(B) the new LMHA or LBHA;

(2) the following must participate in the individual's discharge planning in accordance with §306.201 of this subchapter (relating to Discharge Planning):

(A) the state hospital [SMHF] or [facility with a] CPB;

(B) the new LMHA or LBHA; and

(C) the originating LMHA or LBHA, if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the state hospital [SMHF] or [facility with a] CPB; and

(3) if the individual was receiving LMHA or LBHA services from the originating LMHA or LBHA before admission to the state hospital [SMHF] or [facility with a] CPB, the originating LMHA or LBHA must maintain [maintains] the individual's case in open status in the applicable HHSC automation system for 90 days or until notified that the individual is admitted to services at the new LMHA or LBHA, whichever occurs first.

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 August 28, 2024.

TRD-202404031

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §§306.201 - 306.205, 306.207

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 §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendments affect Texas Government Code §531.0055.

§306.201.Discharge Planning.

(a) At the time of an individual's admission to a state hospital [an SMHF] or [facility with a] CPB, the designated LMHA or LBHA, if applicable [any], and the state hospital [SMHF] or [facility with a] CPB must begin [begins] discharge planning for the individual. The state hospital or CPB must send an electronic admission initial notification within three business days to the appropriate LMHA, LBHA, and LIDDA to initiate discharge planning.

(b) The designated LMHA or LBHA CoC liaison [continuity of care worker] or other designated staff; the designated LIDDA continuity of care worker, if applicable; the individual; the individual's LAR[,] if applicable [any]; and any other person authorized by the individual, such as guardian ad litem or attorney ad litem, must participate in [coordinates ] discharge planning with the state hospital [SMHF] or [facility with a] CPB. The state hospital or CPB must initiate coordination of discharge planning.

(1) Except for the state hospital [SMHF] or [facility with a] CPB treatment team and the individual, involvement in discharge planning may be through teleconference or video-conference calls.

(2) The state hospital [SMHF] or [the facility with a] CPB must invite the LMHA, LBHA, or LIDDA, as applicable, to routine recovery or treatment plan meetings as well as any additional meetings that arise specific to discharge planning. The state hospital or CPB must notify meeting participants [provide] a minimum of 24 hours [24-hour notification] before each scheduled meeting regarding recovery or treatment planning and any additional meetings specific to discharge [staffings and reviews to persons involved in discharge] planning.

(3) The state hospital [LMHA, LBHA, or LIDDA, if applicable, and the SMHF] or [facility with a] CPB must [involved in discharge planning must coordinate all discharge planning activities and] ensure the development and completion of the discharge plan as listed in subsection (c) of this section and coordinate with the LMHA, LBHA, or LIDDA, if applicable, before the individual's discharge.

(4) The LMHA or LBHA must facilitate the transition of individuals who are determined by the state hospital or CPB to be medically appropriate for discharge in accordance with Texas Health and Safety Code §534.0535 from a facility to a community setting by connecting the individuals to resources available in the individuals' county of residence or choice.

(c) Discharge planning must consist of the following activities:

(1) Considering all pertinent information about the individual's clinical needs, the state hospital [SMHF] or [facility with a] CPB must identify and recommend specific clinical services and supports needed by the individual after discharge or while on pass or furlough [ATP].

(2) The state hospital or CPB, and the LMHA, LBHA, or LIDDA, if applicable, must jointly identify, [and] recommend, and help coordinate access to services for the individual, and the individual's LAR if applicable, regarding specific non-clinical services and supports needed by the individual after discharge, including the individual's need for housing, supported employment, education resources, and[,] food assistance, [and] clothing resources, and other supplemental supports or governmental benefits as applicable.

(3) If an individual needs a living arrangement, the LMHA or LBHA CoC liaison, or LIDDA continuity of care worker must:

(A) identify a living arrangement [setting] consistent with the individual's clinical needs and preference that is available and has accessible services and supports as agreed upon by the individual, or the individual's LAR if applicable; or

(B) ensure the individual, or the individual's LAR if applicable, is referred to housing services and support the individual through the process of obtaining and applying for housing services during the discharge planning process if a living arrangement is unavailable.

(4) The LMHA or [,] LBHA CoC liaison, or LIDDA continuity of care worker in collaboration with the individual, and the individual's LAR if applicable, must identify potential providers and resources for the services and supports recommended and arrange for provision of services upon discharge in accordance with Texas Health and Safety Code §534.0535.

(5) The state hospital [SMHF] or [facility with a] CPB must attempt to educate [counsel] the individual, and the individual's LAR[, ] if applicable [any], to prepare the individual [them] for care after discharge or while on pass or furlough [ATP].

(6) The state hospital [SMHF] or [facility with a] CPB must provide the individual, and the individual's LAR [,] if applicable [any], with written notification of the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008.

(7) The LMHA, [or] LBHA, or LIDDA must comply with the PASRR [Preadmission Screening and Resident Review] processes as described in Chapter 303 of this title (relating to Preadmission Screening and Resident Review (PASRR)) for an individual referred [recommended to move] to a nursing facility.

(d) Before an individual's discharge or approval for a pass or furlough:

(1) The individual's treatment team must ensure the development of [must develop] a [discharge] plan to include the individual's stated [wishes] goals. The [discharge] plan must consist of:

(A) a description of the individual's living arrangement after discharge, or while on pass or furlough [ATP], that reflects the individual's preferences, choices, and available community resources;

(B) arrangements and referrals for the available and accessible services and supports agreed upon by the individual, or the individual's LAR if applicable, recommended in the individual's discharge plan;

(C) a written description of recommended clinical and non-clinical services and supports the individual receives [may receive] after discharge, or while on pass or furlough; [ATP. The SMHF or facility with a CPB documents]

(D) documentation of arrangements and referrals for the services and supports recommended upon discharge or while on pass or furlough [ATP in the discharge plan];

(E) [(D)] a description of behavioral health symptoms [problems] identified at discharge or before a pass or furlough [or ATP], including any symptoms [issues] that may disrupt the individual's stability in the community;

(F) [(E)] the individual's goals, strengths, interventions, and objectives as stated in the individual's discharge plan in the state hospital [SMHF] or [facility with a] CPB;

(G) [(F)] comments or additional information;

(H) [(G)] a final diagnosis based on the version of the DSM currently recognized by HHSC [current edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association];

(I) [(H)] the names, contact information, and addresses of providers to whom the individual will be referred for any services or supports after discharge or while on pass or furlough[ATP]; and

(J) [(I)] [in accordance with Texas Health and Safety Code §574.081(c),] a description of:

(i) the types and amount of medication the individual needs after discharge or while on pass or furlough [ATP] until the individual is evaluated by a physician; or [and]

(ii) for 90 days after discharge, the person or entity responsible for providing and paying for the medication.

(2) The state hospital [SMHF]or [facility with a] CPB must request that the individual, or the individual's LAR if applicable[, as appropriate ], sign the discharge plan, and document in the discharge plan whether the individual, or the individual's LAR if applicable, agree or disagree with the plan.

(3) If the individual, or the individual's LAR if applicable, refuses to sign the discharge plan described in paragraph (2) of this subsection, the state hospital [SMHF] or [facility with a] CPB must document [documents] in the individual's record whether [if] the individual, or the individual's LAR if applicable, agrees to the plan or not, reasons stated, and any other circumstances of the refusal.

(4) If applicable, the individual's treating physician must document in the individual's record reasons why the individual does not require continuing care or a discharge plan [in accordance with Texas Health and Safety Code §574.081(g)].

(5) If the LMHA or LBHA disagrees with the state hospital [SMHF] or [facility with a] CPB treatment team's decision concerning discharge:

(A) the treating physician of the state hospital [SMHF] or [facility with a] CPB must consult [consults] with the LMHA or LBHA physician or designee to resolve the disagreement within 24 hours; and

(B) [and] if the disagreement continues unresolved, the medical director or designee of the state hospital or CPB must refer the issue to the Texas State Hospitals Chief Medical Officer to render a final determination. [:]

[(i) the medical director or designee of the SMHF or facility with a CPB consults with the LMHA or LBHA medical director; and]

[(ii) if the disagreement continues unresolved after consulting with the LMHA or LBHA medical director:]

[(I) the medical director or designee of the SMHF or facility with a CPB refers the issue to the State Hospital System Chief Medical Officer; and]

[(II) the State Hospital System Chief Medical Officer collaborates with the Medical Director of the Behavioral Health Section to render a final decision within 24 hours of notification.]

(e) Discharge notice to family or the individual's LAR if applicable.

(1) In accordance with Texas Health and Safety Code §576.007, before discharging an [individual who is an] adult, the state hospital [SMHF] or [facility with a] CPB must make [makes] a reasonable effort to notify the individual's family or any identified [other] person providing support to the individual. Discharge notification requires authorization by the individual, or the individual's LAR if applicable [as authorized by the individual or LAR, if any, of the discharge if the adult grants permission for the notification].

(2) Before discharging an individual who is at least 16 years of age, but [or] younger than 18 years of age, who voluntarily consented for the individual's own admission, the state hospital [SMHF] or [facility with a] CPB must make [makes] a reasonable effort to notify the individual's [family as authorized by the individual or] LAR, if applicable [any], of the discharge within 72 hours before the date of discharge [if the individual grants permission for the notification].

(3) Before discharging a minor for whom a parent, managing conservator, or guardian provided consent for admission [an individual younger than 16 years of age], the state hospital [SMHF] or [facility with a] CPB must notify [notifies] the minor's [individual's ] LAR of the discharge.

(f) Release of minors. Upon discharge, the state hospital [SMHF] or [facility with a] CPB may release a minor [younger than 16 years of age] only to the minor's LAR or the LAR's designee.

(1) If the LAR or the LAR's designee is unwilling to retrieve the minor from the state hospital [SMHF] or [facility with a] CPB and the LAR is not a state agency:

(A) the state hospital [SMHF] or [facility with a] CPB must:

(i) notify DFPS [notifies the Department of Family and Protective Services (DFPS)], so DFPS can take custody of the minor from the state hospital [SMHF] or [facility with a] CPB;

(ii) refer [refers] the matter to the LMHA or LBHA [local CRCG] to schedule a meeting with representatives from the required agencies described in subsection (f)(2)(A) of this section, the LAR, and minor to explore resources and make recommendations; [and]

(iii) document [documents] the LMHA or LBHA [CRCG] referral in the discharge plan; [and]

(iv) refer the matter to the local CRCG to schedule a meeting with representation from the required agencies described in subsection (f)(2)(A) of this section, the LAR, and the minor to explore resources and make recommendations; and

(v) document the CRCG referral in the discharge plan; and

(B) the medical directors or the medical directors' [their] designees of the state hospital [SMHF] or [facility with a] CPB; designated LMHA, LBHA, or LIDDA; and DFPS must meet to develop and finalize [solidify ] the discharge recommendations.

(2) If the LAR is a state agency unwilling to assume physical custody of the minor from the state hospital [SMHF ] or [facility with a] CPB, the state hospital [SMHF] or [the facility with a] CPB must:

(A) refer [refers] the matter to the local CRCG office, or state CRCG office if applicable, to schedule a meeting with representatives from the member agencies, in accordance with 40 TAC, Part 19, Chapter 702, Subchapter E (relating to Memorandum of Understanding with Other State Agencies), the LAR, and minor to explore resources and make recommendations; and

(B) document [documents] the CRCG referral in the discharge plan.

(g) Notice to the designated LMHA, LBHA, or LIDDA. At least 24 hours before an individual's planned discharge, pass, or furlough[or ATP], and no later than 24 hours after an unexpected discharge, a state hospital [an SMHF] or [facility with a] CPB must notify [notifies ] the designated LMHA, LBHA, or LIDDA of the anticipated or unexpected discharge and convey [conveys] the following information about the individual:

(1) identifying information, including address and contact information of the individual, or the individual's LAR if applicable;

(2) legal status, for example [(e.g.], regarding guardianship, charges pending, or custody if the individual is a minor[)];

(3) the day and time the individual will be discharged or participating in a pass or furlough [on an ATP];

(4) the individual's destination address after discharge, or while on pass or furlough [ATP];

(5) [pertinent] medical information;

(6) current medications;

(7) clinical documentation [behavioral data], including information regarding a COPSD, an ID, or a DD; and

(8) other pertinent treatment information, including the discharge plan.

(h) Discharge packet.

(1) At a minimum, a discharge packet must include:

(A) the discharge plan;

(B) referral instructions, including:

(i) state hospital [SMHF] or [facility with a] CPB contact person;

(ii) name of the designated LMHA or[,] LBHA CoC liaison[,] or LIDDA continuity of care worker;

(iii) names of community resources and providers to whom the individual is referred, including contacts, appointment dates and times, addresses, and phone numbers;

(iv) a description of to whom or where the individual is released upon discharge, including the individual's intended residence, address, and phone number [(address and phone number)];

(v) instructions for the individual, or the individual's LAR if applicable[, and primary care giver as applicable];

(vi) medication regimen and prescriptions, as applicable; and

(vii) dated signature of the individual, or the individual's LAR if applicable, and a member of the state hospital [SMHF] or [facility with a] CPB treatment team;

(C) copies of all available, pertinent, current summaries, and assessments; and

(D) the treating physician's orders.

(2) At discharge, or while on pass or furlough [ATP], the state hospital [SMHF ] or [facility with a] CPB provides a copy of the discharge packet or pass or furlough plan to the individual, and the individual's LAR if applicable. An individual [Individuals] may request additional records. [If the requested records are reasonably likely to endanger the individual's life or physical safety, these records can be withheld. Documentation of the determination to withhold records is required in the individual's medical record.]

(3) Within 24 hours after discharge [or ATP], or while on pass or furlough, the state hospital [SMHF ] or [facility with a] CPB must send [sends ] a copy of the discharge packet or pass or furlough plan to:

(A) the designated LMHA, LBHA, or LIDDA; and

(B) the providers to whom the individual is referred, including:

(i) an LMHA or LBHA network provider, if the LMHA or LBHA is responsible for ensuring the individual's services after discharge or while on pass or furlough [an ATP];

(ii) an alternate provider, if the individual requested referral to an alternate provider; and

(iii) a county jail, if the individual will be transported [taken] to the county jail upon discharge.

(i) Unexpected Discharge.

(1) The state hospital [SMHF] or [facility with a] CPB and the designated LMHA, LBHA, or LIDDA must make reasonable efforts to provide discharge planning for an individual discharged unexpectedly.

(2) If there is an unexpected discharge, the state hospital or CPB [facility] social worker or a designee [staff with an equivalent credential to a social worker] must document the reason for not completing discharge planning activities in the individual's record.

(j) Transportation. A state hospital [An SMHF] or [facility with a] CPB must:

(1) initiate and secure transportation in collaboration with an LMHA, an [or] LBHA, or a LIDDA pursuant to [a planned location after] an individual's discharge or pass or furlough plan; and

(2) inform a designated LMHA, LBHA, or LIDDA of an individual's transportation needs after discharge or while on pass or furlough[an ATP].

(k) Discharge summary.

(1) Within ten days after an individual's discharge, the individual's physician of the state hospital [SMHF] or [facility with a] CPB must complete [completes ] a written discharge summary for the individual.

(2) Within 21 days after an individual's discharge from an [a] LMHA or LBHA, the LMHA or LBHA must complete a written discharge summary for the individual.

(3) The written [Written] discharge summary must include [includes]:

(A) a description of the individual's treatment and the individual's [their] response to that treatment;

(B) a description of the level of care for services received;

(C) a description of the individual's level of functioning at discharge;

(D) a description of the individual's living arrangement after discharge;

(E) a description of the community services and supports the individual will receive after discharge;

(F) a final diagnosis based on the version [current edition] of the DSM currently recognized by HHSC; and

(G) a description of the amount of medication available to the individual, if applicable.

(4) The discharge summary must be sent to the individual's:

(A) designated LMHA, LBHA, or LIDDA, as applicable; and

(B) providers to whom the individual was referred.

(5) Documentation of refusal. If the individual, or the individual's LAR if applicable, [or the individual's caregivers] refuse to participate in the discharge planning, the circumstances of the refusal must be documented in the individual's record.

(l) An LMHA or LBHA must provide continuity of care services designed to support joint discharge planning efforts in accordance with Texas Health and Safety Code §534.0535.

[(l) Care after discharge. An individual discharged from an SMHF or facility with a CPB is eligible for:]

[(1) community transitional services for 90 days if referred to an LMHA or LBHA; or]

[(2) ongoing services.]

§306.202.Special Considerations for Discharge Planning.

(a) Three Admissions Within 180 Days. An individual admitted to a state hospital [an SMHF] or [a facility with a] CPB three times within 180 days is considered at risk for future admission to inpatient services. To prevent the potentially unnecessary admissions to an inpatient facility, the designated LMHA or LBHA must:

(1) during discharge planning, review the individual's previous recovery or treatment plans to determine the effectiveness of the clinical services received;

(2) include in the recovery or treatment plan:

(A) non-clinical supports, such as those provided by a mental health peer specialist or recovery support peer specialist [coach], identified to support the individual's ongoing recovery; and

(B) recommendations for services and interventions from the individual's current or previous care plan [plan(s) ] that support the individual's strengths and goals and prevent unnecessary admission to a state hospital [an SMHF] or [facility with a] CPB;

(3) determine the availability and level of care, including type, ["type,] amount, scope, and duration [duration"] of clinical and non-clinical supports, such as those provided by a mental health peer specialist or recovery support peer specialist [coach], that promote ongoing recovery and prevent unnecessary admission to a state hospital [an SMHF] or [facility with a] CPB; and

(4) consider appropriateness of the individual's continued stay in the state hospital [SMHF] or [facility with a] CPB.

(b) Discharge Planning Specialists. Pursuant to Texas Health and Safety Code §534.053, each state hospital must designate at least one employee to deliver continuity of care services for individuals who are determined medically appropriate for discharge from the facility. The state hospital must concentrate the provision of continuity of care services for individuals who have been:

(1) admitted to and discharged from a state hospital three or more times during a 30-day period; or

(2) in the state hospital for longer than 365 consecutive days.

(c) [(b)] Nursing Facility Referral or Admission.

(1) In accordance with 42 CFR Part 483, Subpart C, and as described in Chapter 554, Subchapter BB of this title [40 TAC Chapter 19, Subchapter BB] (relating to Nursing Facility Responsibilities Related to Preadmission Screening and Resident Review (PASRR)), a nursing facility must coordinate with the referring entity to ensure the referring entity screens the individual for admission to the nursing facility before the nursing facility admits the individual.

(2) As the referring entity, the state hospital [SMHF] or [facility with a] CPB must complete a PL1 Screening [PASRR Level I Screening] and forward the completed form in accordance with §303.301 of this title (relating to Referring Entity Responsibilities Related to the PASRR Process).

(3) The LMHA, [or] LBHA, or LIDDA must conduct a PE [PASRR Level II Evaluation ] in accordance with Chapter 303 of this title (relating to Preadmission Screening and Resident Review (PASRR)).

(4) If a nursing facility admits an individual while on pass or furlough [an ATP], the designated LMHA or LBHA must conduct and document, including justification for its recommendations, the activities described in paragraphs (5) and (6) of this subsection.

(5) The designated LMHA or LBHA must make at least one in-person [face-to-face] contact with the individual at the nursing facility while on pass or furlough [an ATP]. The contact must consist of:

(A) a review of the individual's record at the nursing facility; and

(B) discussions with the individual, the individual's [and] LAR[,] if applicable [any], the nursing facility staff, and other staff who provide care to the individual regarding:

(i) the individual's needs and the care the individual is receiving;

(ii) the ability of the nursing facility to provide the appropriate care;

(iii) the provision of mental health services, if needed by the individual; and

(iv) the individual's adjustment to the nursing facility.

(6) Before the end of the initial pass or furlough [ATP] period described in §306.205(a) [§306.206(b)(2) ] of this subchapter (relating to Pass or Furlough from a State Hospital or Facility with a Contracted Psychiatric Bed [Absence for Trial Placement]), the designated LMHA or LBHA must recommend to the state hospital [SMHF] or [facility with a] CPB one of the following:

(A) discharging the individual if the LMHA or LBHA determines that:

(i) the nursing facility is capable and willing to provide appropriate care to the individual after discharge;

(ii) any mental health services needed by the individual are being provided to the individual while residing in the nursing facility; and

(iii) the individual, and the individual's LAR[,] if applicable [any], agrees to the nursing facility admission;

(B) extending the individual's pass or furlough [ATP] period in accordance with §306.205(a)(2) [§306.206(b)(3)] of this subchapter;

(C) returning the individual to the state hospital [SMHF] or [facility with a] CPB in accordance with §306.205 of this subchapter (relating to Pass or Furlough from a State Hospital [Mental Health Facility] or a Facility with a Contracted Psychiatric Bed); or

(D) initiating involuntary admission to the state hospital [SMHF] or [facility with a] CPB in accordance with §306.176 (relating to Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility] for Emergency Detention) and §306.177 (relating to Admission Criteria Under Order of Protective Custody or Court-ordered Inpatient Mental Health Services) of this subchapter.

(d) [(c)] Assisted Living.

(1) A state hospital [An SMHF], [facility with] a CPB, an LMHA, or an LBHA may only [not] refer an individual to an assisted living facility that is [not] licensed under [the] Texas Health and Safety Code[,] Chapter 247.

(2) As required by Texas Health and Safety Code §247.063(b), if a state hospital, [an SMHF, facility with] a CPB, an LMHA, or an LBHA gains knowledge of an assisted living facility not operated or licensed by the state, the state hospital [SMHF], [facility with a] CPB, LMHA, or LBHA must report [reports] the name, address, and telephone number of the facility to HHSC Complaint and Incident Intake at 1-800-458-9858.

(e) [(d)] Minors.

(1) To the extent permitted by medical privacy laws, the state hospital [SMHF] or [facility with a] CPB and designated LMHA or LBHA must make a reasonable effort to involve a minor's LAR or the LAR's designee in the treatment and discharge planning process.

(2) A minor committed to or placed in a state hospital [an SMHF] or [facility with a] CPB under Texas Family Code[,] Chapter 55, Subchapter C or D, shall be discharged in accordance with the Texas Family Code[, ] Chapter 55, Subchapter C or D as applicable.

(f) [(e)] An individual suspected of having an ID. If a state hospital [an SMHF] or [facility with a] CPB suspects an individual has an ID, the state hospital [the SMHF] or [facility with a] CPB must notify the designated LMHA or LBHA CoC liaison [continuity of care worker] and the designated LIDDA to:

(1) assign a LIDDA continuity of care worker to the individual; and

(2) conduct an assessment in accordance with Chapter 304 of this title [40 TAC Chapter 5, Subchapter D](relating to Diagnostic Assessment).

(g) [(f)] Criminal Code.

(1) Texas Code of Criminal Procedure[,] Chapter 46B[: Incompetency to stand trial].

(A) An individual committed to a state hospital [The SMHF] or [facility with a] CPB [must discharge an individual committed] under Texas Code of Criminal Procedure[,] Article 46B.102 may only be discharged by order of the committing court under [(relating to Civil Commitment Hearing: Mental Illness), in accordance with] Texas Code of Criminal Procedure, Article 46B.107 [(relating to Release of Defendant after Civil Commitment)].

(B) An individual committed to a state hospital [The SMHF] or [facility with a] CPB [must discharge an individual committed] under Texas Code of Criminal Procedure [,] Article 46B.073 must be discharged and transferred [(relating to Commitment for Restoration to Competency)], in accordance with Texas Code of Criminal Procedure Article 46B.081 through[,] Article 46B.083 [(relating to Supporting Commitment Information Provided by Facility or Program)].

(C) For an individual committed under Texas Code of Criminal Procedure[,] Chapter 46B, discharged and returned to the committing court, the state hospital [SMHF] or [facility with a] CPB, within 24 hours after discharge, must notify the following of the discharge:

(i) the individual's designated LMHA or LBHA; and

(ii) the TCOOMMI.

(2) Texas Code of Criminal Procedure[,] Chapter 46C: Insanity defense. An individual committed to a state hospital [An SMHF] or [facility with a] CPB under Texas Code of Criminal Procedure Chapter 46C may only be discharged by [must discharge an individual acquitted by reason of insanity and committed to an SMHF or facility with a CPB under Texas Code of Criminal Procedure, Chapter 46C, only upon] order of the committing court in accordance with Texas Code of Criminal Procedure[,] Article 46C.253 or Article 46C.268.

(h) [(g)] Offenders with special needs following discharge from a state hospital [an SMHF] or [facility with a] CPB. The LMHA or LBHA must comply with the requirements as defined by the LMHA's and LBHA's TCOOMMI contract for offenders with special needs.

(1) An LMHA or LBHA that receives a referral for an offender with special needs in the MH priority population from a county or city jail at least 24 hours before the individual's release must complete one of the following actions:

(A) if the offender with special needs is currently receiving LMHA or LBHA services, the LMHA or LBHA must [LMHA]:

(i) notify [notifies] the offender with special needs of the referral from a county or city jail [jail's referral];

(ii) arrange an in-person [arranges a face-to-face] contact between the offender with special needs and a QMHP-CS to occur within 15 days after the individual's release; and

(iii) ensure [ensures] that the QMHP-CS, at the in-person [face-to-face] contact, reassesses [re-assesses] the individual and arranges for appropriate services, including transportation needs at the time of release;[.]

(B) if the individual is not currently receiving LMHA or LBHA services from the LMHA or LBHA that is notified of the referral, the LMHA or LBHA must [LMHA]:

(i) ensure [ensures] that at the in-person [face-to-face] contact required in subparagraph (A) of this paragraph, the QMHP-CS conducts a pre-admission assessment in accordance with §301.353(a) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization); and

(ii) comply [complies] with §306.161(b) of this subchapter (relating to Screening and Assessment), as applicable [appropriate]; or

(C) if the LMHA or LBHA is unable to [does not] conduct an in-person [a face-to-face] contact with the individual required in paragraph (1)(A) of this subsection, the LMHA or LMHA must document the reasons for not doing so in the individual's record.

(2) If an LMHA or LBHA is notified of the anticipated release from prison or a state jail of an offender with special needs in the MH priority population who is currently taking psychoactive medications [medication(s)] for a mental illness and who will be released with a 30-day supply of the psychoactive medications [medication(s)], the LMHA or LBHA must arrange an in-person [a face-to-face] contact required in paragraph (1)(A) of this subsection between the individual and QMHP-CS within 15 days after the individual's release.

(A) If the offender with special needs is released from state prison or state jail after hours or the LMHA or LBHA is otherwise unable to schedule the in-person [face-to-face] contact required in paragraph (2) of this subsection before the individual's release, the LMHA or LBHA must make [makes ] a good faith effort to locate and contact the individual. If the designated LMHA or LBHA is unable to [does not] have an in-person [a face-to-face] contact with the individual within 15 days after being released, the LMHA or LBHA must document the reasons for not doing so in the individual's record.

(B) At the in-person [face-to-face] contact required in paragraph (2) of this subsection:

(i) the QMHP-CS with appropriate supervision and training must perform an assessment in accordance with §301.353(a) of this title and comply with §306.161(b) and (c) of this subchapter, as applicable [appropriate]; and

(ii) if the LMHA or LBHA determines that the offender with special needs should receive services immediately, the LMHA or LBHA must arrange for the individual to meet with a physician or designee authorized by state law to prescribe medication before the individual requires a refill of the prescription.

(C) If the LMHA or LBHA is unable to [does not] conduct an in-person [a face-to-face] contact with the offender with special needs required in paragraph (2) of this subsection, the LMHA or LBHA must document the reasons for being unable to do [for not doing] so in the individual's record.

(3) If the offender with special needs is on parole or probation, the state hospital [SMHF] or [facility with a] CPB must notify a representative of TCOOMMI before the discharge of the individual known to be on parole or probation.

§306.203.Discharge of an Individual Voluntarily Receiving Inpatient Treatment.

(a) A state hospital [An SMHF] or [facility with a] CPB must discharge an individual voluntarily receiving treatment if the administrator or designee of the state hospital [SMHF] or [facility with a] CPB concludes that the individual can no longer benefit from inpatient services based on the physician's determination, as delineated in Division 5 of this subchapter (relating to Discharge and Absences from a State Hospital [Mental Health Facility] or a Facility with a Contracted Psychiatric Bed).

(b) If a written request for discharge is made by an individual voluntarily receiving treatment, or the individual's LAR if applicable:

(1) the state hospital [SMHF] or [facility with a] CPB must discharge the individual in accordance with Texas Health and Safety Code §572.004; and

(2) the individual, or the individual's LAR if applicable, must sign, date, and document [signs, dates, and documents] the time on the discharge request.

(c) In accordance with Texas Health and Safety Code §572.004, if an individual informs a staff member of a state hospital [an SMHF] or [facility with a] CPB of the individual's desire to leave the state hospital [SMHF] or [facility with a] CPB, the state hospital [SMHF] or [facility with a] CPB must:

(1) as soon as possible, assist the individual in documenting [creating] the written request and obtaining the necessary signature; and

(2) within four hours after a written request is made known to the state hospital [SMHF] or [facility with a] CPB, notify:

(A) the treating physician; or

(B) another physician who is a state hospital [an SMHF] or [facility with a] CPB staff member, if the treating physician is not available during that time period.

(d) Results of physician notification required by subsection (c)(2) [(c)(3)] of this section.

(1) In accordance with Texas Health and Safety Code §572.004(c) and (d):

(A) a state hospital [an SMHF] or [facility with a] CPB, based on a physician's determination, must discharge an individual within the four-hour time period described in subsection (c)(2) of this section; or

(B) if the physician who is notified in accordance with subsection (c)(2) of this section has reasonable cause to believe that the individual may meet the criteria for court-ordered inpatient mental health services or emergency detention, the physician must examine the individual as soon as possible, but no later than 24 hours, after the request for discharge is made known to the state hospital [SMHF] or [facility with a] CPB.

(2) Reasonable cause to believe that the individual may meet the criteria for court-ordered inpatient mental health services or emergency detention.

(A) If a physician does not examine an individual who may meet the criteria for court-ordered inpatient mental health services or emergency detention within 24 hours after the request for discharge is made known to the state hospital [SMHF] or [the facility with a] CPB, the facility must discharge the individual.

(B) If a physician, in accordance with Texas Health and Safety Code §572.004(d), examines the individual as described in paragraph (1)(B) of this subsection and determines that the individual does not meet the criteria for court-ordered inpatient mental health services or emergency detention, the state hospital [the SMHF] or [the facility with a] CPB must discharge [discharges] the individual upon completion of the examination.

(C) If a physician, in accordance with Texas Health and Safety Code §572.004(d), examines the individual as described in paragraph (1)(B) of this subsection and determines that the individual meets the criteria for court-ordered inpatient mental health services or emergency detention, the state hospital [SMHF] or [the facility with a] CPB, by 4:00 p.m. on the next business day, must:

(i) if the state hospital or [SMHF or facility with a] CPB intends to detain the individual, require the physician or designee, [to file an application and obtain a court order for further detention of the individual] in accordance with Texas Health and Safety Code §572.004(d), to[, the physician]:

(I) file [files] an application for court-ordered inpatient mental health services or emergency detention and obtains a court order for further detention of the individual;

(II) notify [notifies] the individual, and the individual's LAR if applicable, of such intention; and

(III) document [documents] in the individual's record the reasons for the decision to detain the individual; or

(ii) discharge [discharges] the individual.

(e) In accordance with Texas Health and Safety Code §572.004(i), after a written request from a minor individual admitted under §306.175(a)(1)(B) of this subchapter (relating to Voluntary Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility]), the state hospital [SMHF] or [facility with a] CPB must:

(1) notify the minor's parent, managing conservator, or guardian of the request and:

(A) if the minor's parent, managing conservator, or guardian objects to the discharge, the minor continues [treatment as a patient] receiving voluntary treatment; or

(B) if the minor's parent, managing conservator, or guardian does not object to the discharge, the minor individual is discharged and released to the minor's LAR; and

(2) document the request in the minor's record.

(f) In accordance with Texas Health and Safety Code §572.004(f)(1), a state hospital [an SMHF] or [facility with a] CPB is not required to complete the requirements described in this section if the individual documents and signs [makes] a written statement withdrawing the request for discharge.

§306.204.Discharge of an Individual Involuntarily Receiving Treatment.

(a) Discharge from emergency detention.

(1) Except as provided by §306.178 of this subchapter (relating to Voluntary Treatment Following Involuntary Admission) and in accordance with Texas Health and Safety Code §573.021(b) and §573.023(b), a state hospital [an SMHF] or [facility with a] CPB must immediately discharge [discharges] an individual under emergency detention if:

(A) the state hospital [SMHF] administrator, administrator of the [facility with a] CPB, or designee concludes, based on a physician's determination, the individual no longer meets the criteria in §306.176(c)(1) of this subchapter (relating to Admission Criteria for a State Hospital or a Facility with a Contracted Psychiatric Bed [Authorized by an LMHA or LBHA or for a State Mental Health Facility] for Emergency Detention); or

(B) except as provided in paragraph (2) of this subsection:

(i) 48 hours has elapsed from the time the individual was presented to the state hospital [the SMHF] or [facility with a] CPB; and

(ii) the state hospital [SMHF] or [facility with a] CPB has not obtained a court order for further detention of the individual.

(2) In accordance with Texas Health and Safety Code §573.021(b), if the 48-hour period described in paragraph (1)(B)(i) of this subsection ends on a Saturday, Sunday, or legal holiday, or before 4:00 p.m. on the next business day after the individual was presented to the state hospital [SMHF] or [facility with a] CPB, the state hospital [SMHF] or [facility with a] CPB may detain [detains] the individual until 4:00 p.m. on such business day.

(b) Discharge under order of protective custody. Except as provided by §306.178 of this subchapter and in accordance with Texas Health and Safety Code §574.028, a state hospital [an SMHF] or [facility with a] CPB must immediately discharge [discharges] an individual under an order of protective custody if:

(1) the state hospital [SMHF] administrator, administrator of the [facility with a] CPB [administrator], or designee determines that, based on a physician's determination, the individual no longer meets the criteria described in Texas Health and Safety Code §574.022(a);

(2) the state hospital [SMHF] administrator, administrator of the [facility with a] CPB [administrator], or designee does not receive notice that the individual's continued detention is authorized after a probable cause hearing held within the time period prescribed by Texas Health and Safety Code §574.025(b);

(3) a final order for court-ordered inpatient mental health services has not been entered within the time period prescribed by Texas Health and Safety Code §574.005; or

(4) an order to release the individual is issued in accordance with Texas Health and Safety Code §574.028(a).

(c) Discharge under court-ordered inpatient mental health services.

(1) Except as provided by §306.178 of this subchapter and in accordance with Texas Health and Safety Code §574.085 and §574.086(a), a state hospital [an SMHF] or [facility with a] CPB must immediately discharge [discharges] an individual under a temporary or extended order for inpatient mental health services if:

(A) the order for inpatient mental health services expires; or

(B) the state hospital [SMHF] administrator, administrator of the [facility with a] CPB, or designee concludes that, based on a physician's determination, the individual no longer meets the criteria for court-ordered inpatient mental health services.

(2) In accordance with Texas Health and Safety Code §574.086(b), before discharging an individual in accordance with paragraph (1) of this subsection, the state hospital [SMHF ] administrator, administrator of the [facility with a] CPB, or designee must consider [considers] whether the individual should receive court-ordered outpatient mental health services in accordance with a modified order described in Texas Health and Safety Code §574.061.

(3) In accordance with Texas Health and Safety Code §574.081, at the time an individual receiving court-ordered inpatient mental health services is furloughed or discharged from a state hospital or [facility with a] CPB, the state hospital or [a facility with a] CPB must provide and pay [is responsible for providing or paying] for psychoactive medication and any other medication prescribed to counteract adverse side effects of psychoactive medication. This requirement also applies for a patient on a pass.

(A) A state hospital or [facility with a] CPB is only required to provide or pay for these medications if funding to cover the cost of the medications is available to be paid to the facility for this purpose from HHSC.

(B) The state hospital or [facility with a] CPB must provide or pay for the medications in an amount sufficient to last until the individual can see a physician, or provider with prescriptive authority, but the state hospital or [facility with a] CPB is not required to provide or pay for more than a seven-day supply.

(C) The state hospital or [facility with a] CPB must inform an individual if funding is not available to provide or pay for the medications upon pass, furlough, or discharge, and if[. If] funding is not available, the individual's designated LMHA or LBHA is responsible for providing psychoactive medications as provided in §306.207(2)(A) of this division (relating to Post Discharge or Furlough [Absence for Trial Placement]: Contact and Implementation of the Recovery or Treatment Plan), if applicable.

(4) An individual [Individuals] committed under Texas Code of Criminal Procedure[,] Chapter 46B or 46C may only be discharged as provided by §306.202(f) of this division (relating to Special Considerations for Discharge Planning).

(d) Discharge packet. A state hospital [An SMHF] administrator, administrator of a [facility with a] CPB, or designee must forward [forwards] a discharge packet, as provided in §306.201(h) of this division (relating to Discharge Planning), of any individual committed under the Texas Code of Criminal Procedure to the jail and the LMHA or LBHA in accordance with state and federal privacy laws.

§306.205.Pass or Furlough from a State Hospital [Mental Health Facility] or a Facility with a Contracted Psychiatric Bed.

(a) An individual who is under consideration for discharge as described in §306.203 of this division (relating to Discharge of an Individual Voluntarily Receiving Treatment) or §306.204(c) of this division (relating to Discharge of an Individual Involuntarily Receiving Treatment) may leave the state hospital or CPB while on pass or furlough if the state hospital or CPB and the designated LMHA or LBHA agree that a pass or furlough will be beneficial in implementing the individual's recovery or treatment plan. The designated LMHA or LBHA is responsible for monitoring the individual while the individual is on pass or furlough. [In accordance with Texas Health and Safety Code §574.082, an SMHF administrator, administrator of a facility with a CPB, or designee may, in coordination with the designated LMHA or LBHA, authorize absences for an individual involuntarily admitted under court order for inpatient mental health services.]

(1) If an individual on an involuntary commitment under Texas Health and Safety Code Chapter 574 is [individual's ] authorized for a pass or furlough, the state hospital [absence is to exceed 72 hours, the SMHF] or [facility with a] CPB notifies the committing court of the individual's absence.

(2) The state hospital or CPB may extend an initial pass or furlough if:

(A) requested by the designated LMHA or LBHA; and

(B) the extension is clinically justified.

(3) A furlough that exceeds 60 days must be approved by:

(A) the state hospital administrator or designee, or the administrator of the CPB or designee; and

(B) the designated LMHA or LBHA executive director or designee

(4) [(2)] The state hospital [SMHF] or [facility with a] CPB must [may ] not authorize a pass or furlough [an absence] that exceeds the expiration date of the individual's order for inpatient mental health services.

(b) The administrator of a state hospital or CPB may contact a peace officer as described under Texas Health and Safety Code §574.083 if:

(1) an individual is absent without authority from a state hospital or CPB;

(2) the individual has violated the conditions of a pass or furlough; or

(3) the individual's condition has deteriorated to the extent that the individual's continued absence under pass or furlough is not appropriate.

[(b) In accordance with Texas Health and Safety Code §574.083, an SMHF or facility with a CPB detains or readmits an individual if the SMHF administrator, administrator of the facility with a CPB, or the administrator's designee issues a certificate or affidavit establishing that the individual is receiving court-ordered inpatient mental health services and:]

[(1) the individual is absent without authority from the SMHF or facility with a CPB;]

[(2) the individual has violated the conditions of the absence; or]

[(3) the individual's condition has deteriorated to the extent that the individual's continued absence from the SMHF or facility with a CPB is inappropriate and there is a question of competency or willingness to consent to return, then the designated LMHA or SMHF must initiate involuntary admission in accordance with Texas Health and Safety Code, Chapter 573 or 574.]

(c) If the individual is detained in a nonmedical facility by a peace officer, the LMHA or LBHA must ensure the individual receives proper care and medical attention in accordance with Texas Health and Safety Code §574.083.

(d) [(c)] In accordance with Texas Health and Safety Code §574.084, an individual's furlough [authorized absence that exceeds 72 hours] may be revoked only after an administrative hearing held in accordance with this subsection.

(1) The state hospital [SMHF] or [facility with a] CPB must conduct [conducts ] a hearing by a hearing officer who is a mental health professional not directly involved in treating the individual.

(2) The state hospital [SMHF] or [facility with a] CPB must:

(A) hold [holds] an informal hearing within 72 hours after the individual returns to the facility;

(B) provide [provides] the individual, or the individual's LAR if applicable, and facility staff members an opportunity to present information supporting the state hospital's or CPB's [their] position; and

(C) provide [provides] the individual, or the individual's LAR if applicable, the option to select another person or staff member to serve as the individual's advocate.

(3) Within 24 hours after the conclusion of the hearing, the hearing officer must determine if:

(A) revocation of the furlough is justified because:

(i) the individual was absent without authority from the facility;

(ii) the individual violated the conditions of the furlough; or

(iii) the individual's condition deteriorated to the extent the individual's continued furlough was inappropriate; or

[(A) determines if the individual violated the conditions of the authorized absence, the authorized absence was justified, or the individual's condition deteriorated to the extent the individual's continued absence was inappropriate; and]

(B) the furlough was justified.

(4) [(B)] The hearing office must render [renders] the final decision in writing, including the basis for the hearing officer's decision, and place the decision in the individual's file.

(5) [(4)] If the hearing officer's decision does not revoke the furlough [authorized absence], the individual may leave the state hospital [SMHF] or [facility with a] CPB pursuant to the conditions of the furlough [absence].

(6) [(5)] The state hospital [SMHF] or [facility with a] CPB must ensure [ensures] the individual's record includes a copy of the hearing officer's report.

(e) [(d)] Only [Except in medical emergencies, only] the committing criminal court may grant a pass or furlough from a state hospital [absences from a SMHF] or [facility with a] CPB for individuals committed under Texas Code of Criminal Procedure[,] Chapter 46B or 46C.

§306.207.Post Discharge or Furlough[Absence for Trial Placement]: Contact and Implementation of the Recovery or Treatment Plan.

(a) The designated LMHA or LBHA must:

(1) contact an [is responsible for contacting the] individual following discharge or furlough [ATP] from a state hospital [an SMHF] or [a facility with a] CPB; [and for implementing]

(2) implement the individual's recovery or treatment plan within seven days after discharge in accordance with this section; and

(3) ensure the successful transition of the individual determined by the state hospital or CPB to be medically appropriate for discharge in accordance with Texas Health and Safety Code §534.0535.

(b) [(1)] LMHA or LBHA contact after discharge or furlough [ATP].

(1) [(A)] The designated LMHA or LBHA must contact an individual in person or using audiovisual technology [makes face-to-face contact with an individual] within seven days after discharge or furlough [ATP] of an individual who is:

(A) [(i)] discharged or on furlough [ATP] from a state hospital [an SMHF] or [facility with a] CPB and referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(B) [(ii)] discharged from an LMHA or LBHA-network provider of inpatient services and referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(C) [(iii)] discharged from an alternate provider of inpatient services and receiving LMHA or LBHA services from the designated LMHA or LBHA at the time of admission and who, upon discharge, is referred to the LMHA or LBHA for services or supports as indicated in the recovery or treatment plan;

(D) [(iv)] discharged from the LMHA's or LBHA's crisis stabilization unit or any overnight crisis facility and referred to the LMHA or LBHA for services or supports as indicated in the discharge plan; or

(E) [(v)] an offender with special needs discharged from a state hospital [an SMHF] or [facility with a] CPB returning to jail.

(2) [(B)] During the contact required by paragraph (1)(A) [At the face-to-face contact after discharge required by subparagraph (A)] of this paragraph, the designated LMHA or LBHA must:

(A) [(i)] reassess [re-assesses] the individual;

(B) [(ii)] ensure [ensures ] the provision of the services and supports specified in the individual's recovery or treatment plan by making the services and supports available and accessible as determined by the individual's level of care; and

(C) [(iii)] assist [assists] the individual in accessing the services and supports specified in the individual's recovery or treatment plan.

(3) [(C)] The designated LMHA or LBHA must develop [develops] or review [reviews] an individual's recovery or treatment plan in accordance with §301.353(e) of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization) and consider [considers] treatment recommendations in the state hospital's [SMHF] or [facility with a] CPB's discharge plan within ten business days after the [face-to-face] contact required by paragraph (1)(A) [subparagraph (A)] of this paragraph.

(4) [(D)] The designated LMHA or LBHA must make [makes] a good faith effort to [locate and] contact an individual as required by paragraph (1)(A) [who fails to appear for a face-to-face contact required by subparagraph (A)] of this paragraph. If the designated LMHA or LBHA does not have the required [a face-to-face] contact with the individual, the LMHA or LBHA must document [documents] the attempts made and reasons the [face-to-face] contact did not occur in the individual's record.

(c) [(2)] For an individual whose recovery or treatment plan must identify [identifies] the designated LMHA or LBHA as responsible for providing or paying for the individual's psychoactive medications, the designated LMHA or LBHA must ensure [is responsible for ensuring]:

(1) [(A)] the provision of psychoactive medications for the individual; and

(2) [(B)] the individual has an appointment with a physician or designee authorized by state law to prescribe medication before the earlier of the following events:

(A) [(i)] the individual's supply of psychoactive medication from the state hospital [SMHF] or [facility with a] CPB has been depleted; or

(B) [(ii)] the 15th day after the individual is on furlough [ATP] or discharged from the state hospital [SMHF] or [facility with a] CPB.

(d) [(3)] The designated LMHA or LBHA must document [documents] in an individual's record the LMHA's or LBHA's activities described in this section, and the individual's responses to those activities.

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 August 28, 2024.

TRD-202404032

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

STATUTORY AUTHORITY

The repeal is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The repeal affects Texas Government Code §531.0055.

§306.206.Absence for Trial Placement.

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 August 28, 2024.

TRD-202404033

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §306.221

STATUTORY AUTHORITY

The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The amendment affects Texas Government Code §531.0055.

§306.221.Screening and Intake Assessment Training Requirements at a State Hospital [Mental Health Facility] and a Facility with a Contracted Psychiatric Bed.

(a) Screening training. As required by Texas Health and Safety Code §572.0025(e), a state hospital [an SMHF] or [facility with a] CPB staff member whose responsibilities include conducting a screening described in Division 3 of this subchapter (relating to Admission to a State Hospital [Mental Health Facility] or a Facility with a Contracted Psychiatric Bed--Provider Responsibilities) must receive at least eight hours of training in the state hospital's [SMHF's] or [facility with a] CPB's screening.

(1) The screening training must provide instruction regarding:

(A) obtaining relevant information about the individual, including information about finances, third-party coverage or insurance benefits, and advance directives;

(B) explaining, orally and in writing, the individual's rights described in 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services);

(C) explaining, orally and in writing, the state hospital's [SMHF's] or [facility with a] CPB's services and treatment as the services and treatment [they] relate to the individual;

(D) explaining, orally and in writing, the existence, purpose, telephone number, and address of the protection and advocacy system established in Texas, pursuant to Texas Health and Safety Code §576.008; and

(E) determining whether an individual comprehends the information provided in accordance with subparagraphs (B) - (D) of this paragraph.

(2) Up to six hours of the following training may count toward the screening training required by this subsection:

(A) 25 TAC §417.515 (relating to Staff Training in Identifying, Reporting, and Preventing Abuse, Neglect, and Exploitation); and

(B) 25 TAC §404.165 (relating to Staff Training in Rights of Persons Receiving Mental Health Services).

(b) Intake assessment training. As required by Texas Health and Safety Code §572.0025(e), if a state hospital's [an SMHF] or [facility with a] CPB's internal policy permits an assessment professional to determine whether a physician should conduct an examination on an individual requesting voluntary admission, the assessment professional must receive at least eight hours of training in conducting an intake assessment pursuant to this subchapter.

(1) The intake assessment training must provide instruction regarding assessing and diagnosing in accordance with §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization).

(2) An assessment professional must receive intake training:

(A) before conducting an intake assessment; and

(B) annually throughout the professional's employment or association with state hospital [the SMHF] or [facility with a] CPB.

(c) Documentation of training. A state hospital [An SMHF] or [facility with a] CPB must document that each staff member and each assessment professional whose responsibilities include conducting the screening or intake assessment have successfully completed the training described in subsections (a) and (b) of this section, including:

(1) the date of the training;

(2) the length of the training session; and

(3) the name of the instructor.

(d) Performance in accordance with training. Each staff member and each assessment professional whose responsibilities include conducting the screening or intake assessment must perform the assessments in accordance with the training required by this section.

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

Filed with the Office of the Secretary of State on August 28, 2024.

TRD-202404034

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

26 TAC §§306.361, 306.363, 306.365, 306.367, 306.369

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, and §531.008 which requires the Executive Commissioner of HHSC to establish a division for administering state facilities, including state hospitals and SSLCs; Health and Safety Code §533.014 which requires the Executive Commissioner of HHSC to adopt rules relating to LMHA treatment responsibilities, §533.0356 which allows the Executive Commissioner to adopt rules governing LBHAs, §533A.0355 which requires the Executive Commissioner of HHSC to adopt rules establishing the roles and responsibilities of LIDDAs, §534.052 which requires the Executive Commissioner of HHSC to adopt rules necessary and appropriate to ensure the adequate provision of community-based services through LMHAs, §534.0535 which requires the Executive Commissioner of HHSC to adopt rules that require continuity of services and planning for patient care between HHSC facilities and LMHAs, and §552.001 which provides HHSC with authority to operate the state hospitals.

The new sections affect Texas Government Code §531.0055.

§306.361.Purpose.

The purpose of this subchapter is to establish methods and parameters of service delivery for individuals receiving general revenue-funded behavioral health services that HHSC determines are clinically effective and cost effective in accordance with Texas Government Code §531.02161.

§306.363.Application.

This subchapter applies to:

(1) LMHAs;

(2) LBHAs;

(3) substance use intervention providers;

(4) substance use treatment providers; and

(5) subcontracted providers of LMHAs, LBHAs, substance use intervention providers, and substance use treatment providers.

§306.365.Definitions.

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

(1) Audio-only technology--A synchronous interactive, two-way audio communication that uses only sound and that conforms to privacy requirements of the Health Insurance Portability and Accountability Act. Audio-only includes the use of telephonic communication. Audio-only does not include audiovisual or in-person communication.

(2) Audiovisual technology--A synchronous interactive, two-way audio and video communication that conforms to privacy requirements under the Health Insurance Portability and Accountability Act. Audiovisual does not include audio-only or in-person communication.

(3) CFR--Code of Federal Regulations.

(4) HHSC--Texas Health and Human Services Commission or its designee.

(5) HIPAA--The Health Insurance Portability and Accountability Act, 42 U.S.C. §1320d et seq.

(6) Individual--A person seeking or receiving services under this subchapter.

(7) In person--Within the physical presence of another person. In person does not include interacting with an individual through audiovisual or audio-only communication.

(8) LAR--Legally authorized representative. A person authorized by state law to act on behalf of an individual.

(9) LBHA--Local behavioral health authority. An entity designated as the local behavioral health authority by HHSC in accordance with Texas Health and Safety Code §533.0356.

(10) LMHA--Local mental health authority. An entity designated as the local mental health authority by HHSC in accordance with Texas Health and Safety Code §533.035(a).

(11) Provider--A person or entity that contracts to deliver services under this subchapter with:

(A) HHSC;

(B) an LMHA;

(C) an LBHA; and

(D) a substance use treatment provider.

§306.367.General Provisions.

(a) A provider may deliver services as permitted under this subchapter, if such delivery is permitted under the provider's state license, permit, or other legal authorization.

(b) If a behavioral health service has a procedure code that is billable in Medicaid, but the service is funded through general revenue, providers must adhere to:

(1) the Texas Medicaid Provider Procedures Manual and the Behavioral Health and Case Management Services Handbook posted on the Texas Medicaid and Healthcare Partnership website;

(2) the Texas Medicaid Provider Procedures Manual and Telecommunications Services Handbook posted on the Texas Medicaid and Healthcare Partnership website; and

(3) other Medicaid guidance concerning delivery of behavioral health services by audiovisual technology and audio-only technology.

(c) A provider may deliver behavioral health services that do not have a procedure code billable in Medicaid either in person, by audiovisual technology, or by audio-only technology.

(d) A provider delivering behavioral health services by audiovisual technology or audio-only technology as permitted under this subchapter must:

(1) deliver behavioral health services in person or use audiovisual technology rather than audio-only technology, whenever possible;

(2) offer the option of in person service delivery and not require an individual to receive services through audiovisual technology or audio-only technology;

(3) defer to the needs of the individual receiving services, allowing the method of service delivery to be accessible, person-centered and family-centered, and driven primarily by the individual's choice rather than provider convenience;

(4) only deliver the service by audiovisual technology and audio-only technology if agreed to by the individual, or the individual's LAR if applicable;

(5) determine that providing the service by audiovisual technology or audio-only technology is clinically appropriate and safe;

(6) deliver services in compliance with state standards set forth in Texas Health and Safety Code §533.035(d) and §533.0356(h), Texas Health and Safety Code Chapter 464, and in accordance with applicable HHSC rules; and

(7) maintain the confidentiality of protected health information as required by 42 CFR Part 2, 45 CFR Parts 160 and 164, Texas Occupations Code Chapter 159, Texas Health and Safety Code Chapter 611, and other applicable federal and state law.

(e) A provider must ensure any software or technology used complies with all applicable state and federal requirements, including HIPAA confidentiality and data encryption requirements, and with the United States Department of Health and Human Services rules implementing HIPAA confidentiality and data encryption requirements.

§306.369.Documentation Requirements.

(a) A provider must accurately document the services rendered and identify the method of service delivery. Documentation requirements for behavioral health services delivered by audiovisual technology or audio-only technology are the same as for service delivery in person.

(b) Prior to delivering a behavioral health service by audio-only technology, a provider must:

(1) obtain informed consent from the individual, or the individual's LAR if applicable, except when doing so is not feasible or could result in death or injury to the individual;

(2) if applicable, document in the individual's medical record that informed consent was obtained verbally; and

(3) document the reason why the provider delivered services by audio-only technology.

(c) Providers must adhere to documentation requirements in accordance with publications and conditions described in §306.367(b) of this subchapter (relating to General Provisions) if the general revenue-funded behavioral health service has a procedure code that is billable in Medicaid.

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 August 28, 2024.

TRD-202404035

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (737) 704-9063

SUBCHAPTER C. JAIL-BASED COMPETENCY RESTORATION PROGRAM

26 TAC §§307.101, 307.103, 307.105, 307.107, 307.109, 307.111, 307.113, 307.115, 307.117, 307.119, 307.121, 307.123, 307.125, 307.127, 307.129, 307.131

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §307.101, concerning Purpose; §307.103, concerning Application; §307.105, concerning Definitions; §307.107, concerning Program Eligibility Requirements; §307.109, concerning Service Standards; §307.111, concerning Provider Staff Member Training; §307.113, concerning Policies and Procedures; §307.115, concerning Individual Eligibility; §307.117, concerning Admission; §307.119, concerning Rights of Individuals Receiving JBCR Services; §307.121, concerning Treatment Planning; §307.123, concerning Competency Restoration Education; §307.125, concerning Procedures for Determining Competency Status in a JBCR Program; §307.127, concerning Preparation for Discharge from a JBCR Program; §307.129, concerning Outcome Measures; and §307.131, concerning Compliance with Statutes, Rules, and Other Documents.

BACKGROUND AND PURPOSE

The purpose of the proposal is to implement Senate Bill 49, 87th Legislature, Regular Session, 2021, which amended Texas Code of Criminal Procedure (CCP) Chapter 46B concerning procedures regarding defendants who are or may be individuals with a mental illness or intellectual disability. The amended rules in this proposal align the existing rules with CCP Chapter 46B by removing references to the pilot program, defining when the initial competency restoration period and an extension begin, updating requirements for a jail-based competency restoration (JBCR) psychiatrist or psychologist, and allowing JBCR programs to continue competency restoration services after 60 days if the individual has not yet restored under certain circumstances. The amended rules require new JBCR policies and procedures to ensure consistency in staff training and program operations and expands upon the policies and procedures for development of a safety plan. The proposal also updates cross-references and terminology for clarity and makes minor grammatical and editorial changes for accuracy, understanding, and uniformity.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §307.101 removes information about pilot and county-based programs due to the expiration of CCP Article 46B.090. The terms "jail-based competency restoration," "intellectual disability," and "substance use disorder" are replaced with their respective acronyms as minor editorial changes.

The proposed amendment to §307.103 replaces "LMHA or LBHA subcontractor" with "or a subcontractor of an LMHA or LBHA" as an editorial change. The proposed amendment removes references to other entities delivering jail-based competency restoration services due to the expiration of CCP Article 46B.090, and adds language clarifying that the subchapter applies to all JBCR programs implemented by counties regardless of their funding source.

The proposed amendment to §307.105 adds a definition for Extension; amends the definitions for Competency restoration, IST--Incompetent to stand trial, JBCR--Jail-based competency restoration, and JBCR program; and deletes the Local unit of general purpose government definition to align with Texas Code of Criminal Procedure Chapter 46B. The proposed amendment deletes the following definitions as they are no longer used in the rule text: Provider, Specially trained jailer, and State mental health facility, and deleted the following definitions as they did not need to be defined: Subcontractor and Texas Commission on Jail Standards. The proposed amendment adds or amends the following definitions to clarify and align with other rules: Business day, CFR--Code of Federal Regulations, Competency restoration training module, Day, Good standing, ID--intellectual disability, In-patient mental health facility, Legally authorized representative, LIDDA--Local intellectual and developmental disability authority, LMHA--Local mental health authority, Mental illness, Non-clinical services, OCR--outpatient competency restoration, Program staff member, QMHP-CS--Qualified mental health professional-community services, Safety plan, SUD--Substance use disorder, TAC--Texas Administrative Code, and Treatment team. The proposed amendment renumbers the definitions to account for the new definitions and changes made to existing definitions.

The proposed amendment to §307.107 revises the title to "JBCR Program Eligibility Requirements," updates the cross-reference in subsection (a), removes reference to the pilot program, and removes paragraphs (1) and (2) related to the pilot program to reflect repeal of Texas Code of Criminal Procedure Article 46B.090, relating to the JBCR pilot program. The proposed amendment to subsection (b) removes the reference to "county-based" and Texas Code of Criminal Procedure Article 46B.091. Proposed new subsection (c) clarifies the requirement that the LMHA or LBHA must contract with a county or counties to provide JBCR services. Through the proposed amendment, previous subsection (c) becomes subsection (d), and the proposed amendment updates the cross-reference to 25 TAC Chapter 412.

The proposed amendment to §307.109 removes subsection (a) related to the JBCR pilot program, and subsection (b) becomes assumed subsection (a). The proposed amendment adds the language in former subparagraph (A) to paragraph (1). The proposed amendment removes reference to "county-based" and clarifies that services must be provided by "licensed professionals, QMHP-CSs, or QIDPs as permitted by their professional license or certification." The proposed amendment adds new paragraph (5) to align with Article 46B.091, requiring that the program's JBCR must operate in the jail in a designated space that is separate from the space used for the general population of the jail, and subsequent paragraphs are renumbered. The proposed amendment clarifies in paragraph (7) that treatment should be provided to individuals as clinically indicated; adds new paragraph (8) to align with Article 46B.091, requiring JBCR programs to supply clinically appropriate psychoactive medications in accordance with Texas Code of Criminal Procedure Article 46B.086 or Texas Health and Safety Code Chapter 574; and adds new paragraph (9) clarifying the requirement that JBCR programs assess individuals for suicidality and homicidality and develop a safety plan.

The proposed amendment to §307.111 revises the title to "JBCR Program Staff Member Training" and corrects cross-references in subsection (a)(1) - (3) and (b)(1). The proposed amendment to subsection (b)(3) replaces HHSC's Office of the Ombudsman with the Department of Family and Protective Services for reporting abuse, neglect, and exploitation.

The proposed amendment to §307.113 adds new paragraph (1) requiring policies and procedures for maintaining a list of each program staff member providing JBCR, including position and credentials, reporting structure, and responsibilities. The proposed amendment also adds new paragraph (2) regarding maintaining program staff member training records to ensure accurate and consistent program oversight. Previous paragraph (1) becomes paragraph (3). Proposed amendments to paragraph (3) clarify that program eligibility is determined by the JBCR program and updates the cross-reference. Proposed new paragraph (5) specifies what a safety plan must document to ensure accurate record keeping of prevention and management of crises. Proposed amendments to paragraph (6) replace "ability to monitor" with "process to assess, evaluate" to align with Chapter 46B requirements and add cross-references. Proposed amendments to paragraph (7) replace "ensures ongoing" with "coordinates with the jail provider to address continuity of" to clarify what is required of the provider and updates the cross reference. Proposed new paragraph (8) adds required policies and procedures for educating an individual about the individual's rights while participating in the JBCR program; proposed new paragraph (9) adds required policies and procedures for coordinating with the court concerning the JBCR program's ability to provide services to a new participant within 72 hours after admission; and proposed new paragraph (10) adds required policies and procedures for accommodating individual needs through adaptive materials and approaches, as needed.

The proposed amendment to §307.115 removes original subsection (a), as it related to the court determination of incompetency and proposes new subsection (a) to clarify the requirements relating to screening individuals for admission to the JBCR program if an OCR program is available. Proposed amendments to subsection (b) clarify requirements that JBCR screening must occur before the JBCR program makes a recommendation to the court regarding the individual's eligibility for the JBCR program if an OCR program is not available. Previous subsection (c) becomes subsection (b).

The proposed amendment to §307.117 adds new subsection (a) requiring a JBCR program to admit an individual to JBCR upon receipt of a court order requiring the individual to participate in JBCR under Texas Code of Criminal Procedure Chapter 46B, Subchapter D. The proposed amendment also implements S.B. 49 by adding new subsection (b) to specify when the initial competency restoration period begins. Previous subsection (a) becomes amended subsection (c) and clarifies that a participant must be served within 72 hours of admission to the JBCR program. Previous subsection (b) becomes subsection (d), and the proposed amendment for subsection (d) makes a minor grammatical edit and updates the statutory reference.

The proposed amendment to §307.119 revises the title to "Rights of Individuals Receiving JBCR" and updates the cross-reference in paragraph (1).

The proposed amendment to §307.121 clarifies language and adds a cross-reference to assumed subsection (a), makes a minor grammatical edit to paragraph (7), amends paragraph (8) to replace substance use disorder with the acronym "SUD," and proposes new paragraph (9) requiring the treatment plan to include specific non-clinical services and supports needed by the individual after discharge to capture all areas of individual needs to be assessed when developing the treatment plan.

The proposed amendment to §307.123 clarifies that required accommodations include "accommodations for language barriers and disabilities" in subsection (c) and removes the required review of progress in subsection (d) to implement S.B. 49 amendments to CCP Chapter 46B.

The proposed amendment to §307.125 updates the requirements of the JBCR psychiatrist or psychologist for re-evaluating an individual's competency to align with the S.B. 49 amendments to Article 46B.091. The proposed amendment to subsection (a) requires that the psychiatrist or psychologist must evaluate an individual's competency and report to the court as required by CCP Article 46B.079. Proposed amendments to subsection (b) address the requirements when the psychologist or psychiatrist believes the individual has restored to competency or is unlikely to restore to competency in the foreseeable future. Proposed new subsection (c) requires the JBCR program to continue to serve a participant if the participant has not restored to competency by the 60th calendar day unless notified that space is available at a facility or OCR program, as appropriate, and the required timeframes remain for the individual's commitment. Proposed new subsection (d) requires that the JBCR program coordinate with the court and county jail to ensure that the individual is transferred to the appropriate facility or program. Proposed new subsection (e) requires the JBCR program return the individual to court for further proceedings if the individual has not restored at the end of the period authorized under the Texas Code of Criminal Procedure.

The proposed amendment to §307.127 clarifies the responsibility of the treatment team to provide continuity of care and supports after an individual is either restored to competency, is determined unlikely to restore to competency in the foreseeable future, does not restore to competency after completion of the JBCR program, or is transferred to a facility or OCR program after 60 days in the JBCR program. Proposed amendments to subsections (a) and (b) include editorial changes to clarify the lists of discharge settings.

The proposed amendment to §307.129 adds new subsection (a) to clarify that "competency as determined by the JBCR psychiatrist or psychologist" refers to the clinical opinion of the psychiatrist or psychologist provided under CCP Articles 46B.079(b) and 46B.091. Previous assumed subsection (a) becomes subsection (b). The proposed amendment in subsection (b) revises language to clarify what data must be reported to HHSC. The proposed new subparagraphs (C), (D) and (E) require JBCR programs to report the date the individual was ordered to JBCR, the date the first JBCR service was provided, and whether the court granted an extension. The proposed amendment clarifies language in relabeled subparagraphs (F) - (H) that JBCR programs should report calendar days and report the competency as determined by the JBCR program's psychiatrist or psychologist. The proposed amendment adds new subparagraph (I) to report the number of individuals charged with a felony and not restored to competency, revises subparagraph (J) and adds new subparagraph (K) to report the number of individuals charged with a felony or a misdemeanor who are restored to competency, and revises language in relabeled subparagraphs (L) - (O) for clarification and consistency with terminology. The proposed amendments revise subparagraph (M) to include number of individuals for consistency with the other data points and add new subparagraph (P) to report the number of individuals whose charges were dismissed before completion of the JBCR program. The proposed amendment also revises subsection (b)(2) to clarify language, remove reference to "pilot program or county-based JBCR," update a cross-reference, and add a new cross-reference.

The proposed amendment to §307.131 moves the reference to Texas Human Resources Code Chapter 48 from subsection (b)(8) to subsection (a)(2) and renumbers the subsequent paragraphs. The proposed amendment updates the title to the cross-reference in paragraph (3)(A) and references to rules in Title 25 that have transferred to Title 26. Proposed amendment to subsection (b) updates the HIPAA cross-reference, removes paragraph (b)(4), and renumbers the subsequent paragraphs. Paragraphs (b)(5) and (b)(6) include proposed amendments to statutory references to more accurately reflect requirements for JBCR programs.

The proposed amendments to §§307.105, 307.111, and 307.113, §§307.117 - 307.125, §307.129, and §307.131 replace "provider" with "program" to maintain uniformity and improve clarity.

The proposed amendments to §§307.101 - 307.109, §307.113, and §307.119 replace "JBCR services" with "JBCR" to maintain consistency and improve clarity.

The proposed amendments to §§307.101, 307.121, and 307.129 replace "JBCR program" with "JBCR" to maintain consistency and improve clarity.

HHSC made minor grammatical and editorial changes throughout the subchapter for accuracy and understanding.

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 do not have foreseeable implications concerning costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create new regulations;

(6) the proposed rules will expand existing regulations;

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

(8) the proposed rules will positively 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 there is no requirement to alter current business practices.

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

Trina Ita, Interim Deputy Executive Commissioner for Behavioral Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be aligning rules with statute. There is no anticipated cost for compliance with the proposed amendments since there is no requirement to alter current business practices, and there are no new fees imposed.

Trey Wood, Chief Financial Officer, 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 rule because there is no requirement to alter current business practices and no new fees or costs will be imposed on those required to comply.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 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 23R078" in the subject line.

STATUTORY AUTHORITY

The proposed amendments are authorized by the Texas Code of Criminal Procedure Chapter 46B, relating to Incompetency to Stand Trial, Article 46B.091, requiring the Executive Commissioner of HHSC to adopt rules as necessary for a county to develop and implement a JBCR program, and 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 system.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.

§307.101.Purpose.

The purpose of this subchapter is to provide standards for JBCR [jail-based competency restoration services in pilot and county-based programs,] as required by the Texas Code of Criminal Procedure[,] Chapter 46B, relating to Incompetency to Stand Trial. JBCR includes [The programs include]:

(1) mental health services;

(2) ID [intellectual disability] services;

(3) co-occurring psychiatric and SUD [substance use disorder] treatment services;

(4) competency restoration education in the county jail for an individual found IST [incompetent to stand trial]; and

(5) discharge planning services.

§307.103.Application.

This subchapter applies to an LMHA, LBHA, or a subcontractor of an LMHA or LBHA [subcontractor, a private provider, and a local unit of general purpose government or city unit of government or a subcontractor of the unit of government] delivering JBCR [jail-based competency restoration services] authorized by the Texas Code of Criminal Procedure[,] Chapter 46B, regardless of the funding source for the JBCR.

§307.105.Definitions.

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

(1) Business day--Any day except a Saturday, Sunday, or legal holiday listed in Texas Government Code §662.021.

(2) CFR--Code of Federal Regulations.

(3) [(1)] Competency restoration--The treatment or [and] education process for restoring an individual's ability to consult with the individual's attorney with a reasonable degree of rational understanding, including [and] a rational and factual understanding of the court proceedings and charges against the individual as defined in the Texas Code of Criminal Procedure Article 46B.001.

(4) [(2)] Competency restoration training module[ (training module)]--An HHSC-reviewed training module used by program [provider] staff members to provide legal education to an individual receiving competency restoration services.

(5) [(3)] Court--A court of law presided over by a judge, judges, or a magistrate in civil and criminal cases.

(6) Day--A calendar day, unless otherwise specified.

(7) Extension--As described in Texas Code of Criminal Procedure Article 46B.080(d), an extension begins on the later of:

(A) the date the court enters the order under Article 46B.080(a); or

(B) the date competency restoration services begin pursuant to the order entered under Article 46B.080(a).

(8) Good standing--Entities eligible to contract with HHSC pursuant to HHSC procurement and contract rules and guidelines.

(9) [(4)] HHSC--Texas Health and Human Services Commission or its designee.

(10) [(5)] ID--Intellectual disability. Consistent with Texas Health and Safety Code[,] §591.003, significantly sub-average general intellectual functioning existing concurrently with deficits in adaptive behavior as defined in §304.102 of this title (relating to Definitions) and originating before age 18.

(11) [(6)] Individual--A person receiving services under this subchapter.

(12) [(7)] Inpatient mental health facility--The term has the meaning assigned in Texas Health and Safety Code §571.003. [A mental health facility providing 24-hour residential and psychiatric services and is:]

[(A) a facility operated by HHSC;]

[(B) a private mental hospital licensed by HHSC;]

[(C) a community center, facility operated by or under contract with a community center or other entity HHSC designates to provide mental health services;]

[(D) a local mental health authority or a facility operated by or under contract with a local mental health authority;]

[(E) an identifiable part of a general hospital in which diagnosis, treatment, and care for an individual with mental illness is provided and is licensed by HHSC; or]

[(F) a hospital operated by a federal agency.]

(13) [(8)] IST--Incompetent to stand trial. The term has the meaning described in Texas Code of Criminal Procedure Article 46B.003. [A situation when an individual does not have:]

[(A) sufficient present ability to consult with the individual's lawyer with a reasonable degree of rational understanding; or]

[(B) a rational as well as factual understanding of the proceedings against the individual.]

(14) [(9)] JBCR--Jail-based competency restoration. Competency restoration services [conducted] in a county jail setting provided in a designated space separate from the space used for the general population of the county jail.

(15) [(A)] JBCR program-- [County-based program--]A jail-based competency restoration program developed and implemented by a county or [joint] counties in accordance with the Texas Code of Criminal Procedure[,] Article 46B.091.

[(B) Pilot program--A jail-based competency restoration pilot program implemented in accordance with the Texas Code of Criminal Procedure, Article 46B.090.]

(16) [(10)] LBHA--Local behavioral health authority. An entity designated as the local behavioral health authority by HHSC in accordance with Texas Health and Safety Code §533.0356.

(17) Legally authorized representative--A person authorized by state law to act on behalf of an individual as an agent under a Medical Power of Attorney under Texas Health and Safety Code Chapter 166, or a Declaration for Mental Health Treatment under Texas Civil Practice and Remedies Code Chapter 137.

(18) [(11)] LIDDA--Local intellectual and developmental disability authority. An entity designated as the local intellectual and developmental disability authority by HHSC in accordance with Texas Health and Safety Code §533A.035(a) [, §533A.035].

(19) [(12)] LMHA--Local mental health authority. An entity designated as the local mental health authority by [the executive commissioner of] HHSC in accordance with Texas Health and Safety Code[,] §533.035(a).

[(13) Local unit of general purpose government--The government of a county, municipality, township, Indian tribe, or other unit of government (other than a state) which is a unit of general government as defined in 13 United States Code §184.]

(20) [(14)] LPHA--Licensed practitioner of the healing arts. A person who is:

(A) a physician;

(B) a physician assistant;

(C) an advanced practice registered nurse;

(D) a licensed psychologist;

(E) a licensed professional counselor;

(F) a licensed clinical social worker; or

(G) a licensed marriage and family therapist.

(21) [(15)] Mental illness--An illness, disease, or condition as defined by Texas Health and Safety Code §571.003. [(other than a sole diagnosis of epilepsy, dementia, substance use disorder, or ID) that:]

[(A) substantially impairs an individual's thought, perception of reality, emotional process, or judgment; or]

[(B) grossly impairs an individual's behavior as demonstrated by recent disturbed behavior.]

[(16) Provider--An entity that contracts with HHSC or a county to provide JBCR program services.]

(22) Non-clinical services--Services that support an individual's care but do not provide direct diagnosis, treatment, or care for the individual.

(23) OCR--Outpatient competency restoration. As defined in Chapter 307, Subchapter D of this title (relating to Outpatient Competency Restoration), a community-based program with the specific objective of attaining restoration to competency pursuant to Texas Code of Criminal Procedure Chapter 46B.

(24) [(17)] Program [ Provider] staff member--An employee or person with whom the program [provider] contracts or subcontracts for the provision of JBCR [program services]. A program [provider] staff member includes specially trained security officers, all licensed and credentialed staff, and other people [persons ] directly contracted or subcontracted to provide JBCR [services ] to an individual.

(25) [(18)] QIDP--Qualified intellectual disability professional as defined in 42 CFR §483.430(a).

(26) [(19)] QMHP-CS--Qualified mental health professional-community services. As defined in Chapter 301 [412], Subchapter G[,] of this title (relating to Mental Health Community Services Standards).

(27) [(20)] Residential care facility--A state supported living center or the Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF-IID) component of the Rio Grande State Center.

(28) Safety plan--An individualized written plan to prevent or manage crises.

(29) [(21)] Serious injury--An injury determined by a physician to require medical treatment by a licensed medical professional (e.g., physician, dentist, physician's assistant, or advance practice nurse) or requires medical treatment in an emergency department or licensed hospital.

(30) [(22)] Significantly sub-average general intellectual functioning--Consistent with Texas Health and Safety Code[,] §591.003, measured intelligence on standardized general intelligence tests of two or more standard deviations (not including standard error of measurement adjustments) below the age-group mean for the test used.

[(23) Specially trained jailer--A person appointed or employed as a county jailer assigned to work for the JBCR provider.]

[(24) State mental health facility--A state hospital or a state center with an inpatient psychiatric component.]

[(25) Subcontractor--A person or entity that contracts with the provider of JBCR program services.]

[(26) Texas Commission on Jail Standards--The regulatory agency for all county jails and privately operated municipal jails in the state, as established in the Texas Government Code, Chapter 511.]

(31) SUD--Substance use disorder. The use of one or more substances, including alcohol, which significantly and negatively impacts one or more major areas of life functioning, and which meets the criteria for substance use disorder as described in the HHSC-recognized edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

(32) TAC--Texas Administrative Code.

(33) Treatment team--A group of treatment providers, including a psychiatrist and LPHA; the individual; and the individual's legally authorized representative, if any, who work together in a coordinated manner to provide competency restoration services to the individual.

§307.107.JBCR Program Eligibility Requirements.

(a) A [The] JBCR [pilot] program must meet the standards set forth in the Texas Code of Criminal Procedure[,] Article 46B.091. [46B.090, and upon operation of program services, the provider of the JBCR pilot program must be:]

[(1) an LMHA:]

[(A) in good standing with HHSC; and]

[(B) that demonstrates a history of successful competency restoration outcomes; or]

[(2) a private provider or a local unit of general purpose government or city unit of government, or a subcontractor of the unit of government:]

[(A) certified by a nationwide nonprofit organization that accredits health care organizations and programs;]

[(B) that maintains the accreditation in subparagraph (A) of this paragraph while under contract with HHSC to provide competency restoration services under this subchapter;]

[(C) that demonstrates a history of successful JBCR program outcomes; and]

[(D) has previously provided JBCR services for one or more years.]

(b) A [The county-based] JBCR program must [meet the standards set forth in the Texas Code of Criminal Procedure, Article 46B.091 and upon operation of program services, the provider of the county-based JBCR program must be]:

(1) be an LMHA or LBHA in good standing with HHSC; or

(2) a subcontractor of an LMHA or LBHA in good standing with HHSC.

(c) An LMHA or LBHA must contract with the county to provide JBCR.

(d) [(c)] An LMHA or LBHA that provides JBCR [contracts with a county to provide jail-based competency restoration services] must comply with the rules found in 25 TAC Chapter 412, Subchapter B [of this title] (relating to Contracts Management for Local Authorities) and the contract management and oversight requirements of the Texas Comptroller of Public Accounts.

§307.109.Service Standards.

[(a) A JBCR pilot program must:]

[(1) use a multidisciplinary treatment team to provide clinical treatment:]

[(A) focused on the objective of restoring the individual to competency to stand trial; and]

[(B) similar to the clinical treatment provided as part of a competency restoration program at an inpatient mental health facility;]

[(2) employ or contract for the services of at least one psychiatrist;]

[(3) use QMHP-CSs or QIDPs to provide JBCR program services; and]

[(4) provide weekly competency restoration hours commensurate to the treatment hours provided as part of a competency restoration program at an inpatient mental health facility.]

[(b)] A [county-based] JBCR program must:

(1) use a multidisciplinary treatment team focused on the objective of restoring the individual to competency to stand trial; [:]

[(A) focused on the objective of restoring the individual to competency to stand trial; and]

[(B) similar to other competency restoration programs;]

(2) employ or contract for the services of at least one psychiatrist;

(3) [use QMHP-CSs or QIDPs to] provide JBCR through licensed professionals, QMHP-CSs, or QIDPs as permitted by their professional license or credentials [program services];

(4) provide weekly competency restoration hours commensurate to the treatment hours provided as part of a competency restoration program at an inpatient mental health facility;

(5) provide JBCR in a designated space in the jail, separate from the space used for the general population of the jail;

(6) [(5)] ensure coordination of general health care;

(7) [(6)] provide mental health treatment, SUD [ID services, and substance use disorder] treatment, and referral to ID services to individuals, as clinically indicated [necessary], for competency restoration; [and]

(8) [(7)] supply clinically appropriate psychoactive medications for purposes of administering court-ordered medication to individuals as applicable and in accordance with Texas Code of Criminal Procedure Article 46B.086 or Texas Health and Safety Code §574.106; and [through contract, obligate a subcontractor to comply with this subchapter.]

(9) assess individuals for suicidality and homicidality and develop a safety plan based on the needs of the individual.

§307.111.JBCR Program [Provider] Staff Member Training.

(a) A JBCR program [provider] must recruit, train, and maintain qualified program [provider ] staff members with documented competency in accordance with Chapter 301 [412], Subchapter G, Division 2 of this title (relating to Organizational Standards), specifically:

(1) §301.327(e) [§412.314(e)] of this title (relating to Access to Mental Health Community Services);

(2) §301.329 [§412.315] of this title (relating to Medical Records System); and

(3) §301.331 [§412.316] of this title (relating to Competency and Credentialing).

(b) Before providing services, a JBCR program [provider] must train each program [provider] staff member and ensure demonstrated competence in:

(1) 25 TAC Chapter 404, Subchapter E [Chapter 404, Subchapter E of this title] (relating to Rights of Persons Receiving Mental Health Services);

(2) 40 TAC Chapter 4, Subchapter C (relating to Rights of Individuals with an Intellectual Disability);

(3) identifying, preventing, and reporting abuse, neglect, and exploitation in accordance with the Texas Commission on Jail Standards or [the] HHSC [Office of the Ombudsman] as set forth in applicable state laws and rules; and

(4) using a protocol for preventing and managing aggressive behavior, including preventative de-escalation intervention strategies.

§307.113.Policies and Procedures.

A JBCR program [provider] must develop and implement written policies and procedures for:

(1) maintaining a list of each program staff member providing JBCR, including:

(A) position and credentials;

(B) reporting structure; and

(C) responsibilities;

(2) maintaining program staff member training records;

(3) [(1)] describing JBCR eligibility as determined by the JBCR program, intake and assessment, and treatment planning as described in §307.121 [§416.86 ] of this subchapter (relating to Treatment Planning), and transition and discharge processes to include coordination and continuity of care planning with an LMHA, LBHA, or LIDDA, or an LMHA, LBHA, or LIDDA subcontractor;

(4) [(2)] describing how an individual is assessed for:

(A) suicidality and homicidality;

(B) the degree of suicidality and homicidality; [and]

(C) the development of a safety [an individualized suicide and homicide prevention] plan;

(5) developing a safety plan that must document:

(A) warning signs, including thoughts, images, changes in mood and behavior, or situations that may prompt a crisis;

(B) internal coping strategies that distract from crisis thoughts and urges;

(C) a process for communicating safety concerns and recommended precautions to the jail relating to an individual participating in JBCR;

(D) the process for identifying and addressing suicidal and homicidal means;

(6) [(3)] outlining a JBCR program's process to assess, evaluate, [provider staff member's ability to monitor] and report to the court an individual's restoration to competency status and readiness for return to court as specified in the Texas Code of Criminal Procedure Articles 46B.077(b) and [, Article] 46B.079; [and]

(7) [(4)] addressing how a program [provider] staff member coordinates with the jail medical provider to address continuity of [ensures ongoing] care, treatment, and overall therapeutic environment during evenings and weekends, including responding to behavioral health crisis or physical health crisis consistent with §301.351(a) [§412.321(a)] and (e) of this title (relating to Crisis Services);[.]

(8) educating an individual about the individual's rights while participating in JBCR;

(9) coordinating with the court concerning the JBCR program's ability to provide services to a new participant within 72 hours after admission in accordance with §307.117 of this title and Texas Code of Criminal Procedure Article 46B.073(d); and

(10) accommodating individual needs through adaptive materials and approaches as needed, including accommodations for language barriers and disabilities.

§307.115.Individual Eligibility.

(a) If there is an OCR program available to serve the individual, a JBCR program must collaborate with the OCR program to screen the individual for OCR services. The individual must be deemed ineligible for OCR in accordance with Chapter 307, Subchapter D of this title (relating to Recommendation Regarding Outpatient Competency Restoration Program Admission) before a JBCR program makes a recommendation to the court regarding the individual's eligibility for JBCR.

(b) If there is not an OCR program available to serve the individual, a JBCR program must screen the individual to determine if JBCR is appropriate and make a recommendation to the court regarding the individual's eligibility for JBCR.

[(a) To be eligible to participate in a JBCR program, the court must determine the individual as IST pursuant to the Texas Code of Criminal Procedure, Chapter 46B.]

[(b) An LMHA, LBHA, or an LMHA or LBHA subcontractor must:]

[(1) screen an individual for outpatient competency restoration; and]

[(2) determine an individual ineligible for those services before the individual is admitted into the JBCR program.]

[(c) If an outpatient competency restoration provider is not within the LMHA's or LBHA's local service area or contracted to provide outpatient competency restoration services for the area to participate in screening an individual for outpatient competency restoration services, the JBCR provider must admit the individual to the JBCR program, if eligible.]

§307.117.Admission.

(a) A JBCR program must admit an individual to JBCR upon receipt of a court order requiring the individual to participate in JBCR under Texas Code of Criminal Procedure Chapter 46B, Subchapter D.

(b) In accordance with Texas Code of Criminal Procedure Article 46B.0735, the initial competency restoration period begins on the later of:

(1) the date the individual is:

(A) ordered to participate in OCR services; or

(B) committed to a mental health facility, residential care facility, or JBCR; or

(2) the date competency services begin.

(c) [(a)] When a JBCR program [provider] determines an individual is eligible for [a] JBCR, the program[: (1) the provider must ensure the individual will receive competency restoration services no later than 72 hours after admission to [arriving at] the JBCR program.[; or]

[(2) the provider must inform the court that the JBCR program is at capacity, and immediately report the individual's name to HHSC for placement on the Clearinghouse, which HHSC uses to track the list of pending admissions of criminal code commitments for non-violent offenses.]

(d) [(b)] A JBCR program [provider] must, when necessary, seek a court order for psychoactive medications in accordance with Texas Health and Safety Code[,] §574.106 or [and] the Texas Code of Criminal Procedure Article 46B.086 [, Chapter 46B].

§307.119.Rights of Individuals Receiving JBCR [Services].

A [provider of] JBCR program [services] must:

(1) inform the individual receiving JBCR [services] of the individual's rights in accordance with 25 TAC Chapter 404, Subchapter E [of this title] (relating to Rights of Persons Receiving Mental Health Services) or 40 TAC Chapter 4, Subchapter C (relating to Rights of Individuals with an Intellectual Disability), as applicable;

(2) provide the individual with a copy of the rights handbook published for an individual receiving mental health services or an individual with an ID; and

(3) explain to the individual receiving JBCR [services ] how to initiate a complaint and how to contact:

(A) the HHS Office of the Ombudsman for complaints against the JBCR program [provider];

(B) the Texas Commission on Jail Standards for complaints against the county jail; and

(C) the Texas protection and advocacy system.

§307.121.Treatment Planning.

Within five days after admission to [the] JBCR [program ], based on an individual's competency evaluation and JBCR program [provider] assessment, the JBCR program [provider] must develop the individual's treatment plan in accordance with 25 TAC Chapter 404, Subchapter E (relating to Rights of Persons Receiving Mental Health Services) and Chapter 301, Subchapter G of this title (relating to Mental Health Community Services Standards) to include the individual's:

(1) [the individual's] strengths, to assist the individual in:

(A) overcoming barriers to achieving a factual and rational understanding of legal proceedings; and

(B) consulting with the individual's lawyer with a reasonable degree of rational understanding;

(2) [the individual's] trauma history;

(3) physical health concerns or issues;

(4) medication and medication management;

(5) level of family and community support;

(6) mental health concerns or issues;

(7) ID concerns or issues; [and]

(8) SUD [substance use disorder] or co-occurring psychiatric and SUD [substance use disorder] concerns or issues; and[.]

(9) specific non-clinical services and supports needed by the individual after discharge, including:

(A) housing assistance;

(B) food assistance;

(C) governmental benefits;

(D) clothing resources; and

(E) other supplemental supports.

§307.123.Competency Restoration Education.

(a) A JBCR program [provider] must submit the competency restoration training module for HHSC review.

(b) A JBCR program [Each individual] must educate individuals using [be educated in] multiple learning formats, which may include:

(1) discussion;

(2) written text;

(3) video; and

(4) experiential methods, such as role-playing or mock trial.

(c) A JBCR program [provider] must ensure an individual with accommodation needs receives adapted materials and approaches as needed, including accommodations for language barriers and disabilities.

[(d) Not later than the 14th day after the date on which an individual's competency restoration services begin, the provider must review the individual's progress towards attaining competency in accordance with the Texas Code of Criminal Procedure, Chapter 46B.]

§307.125.Procedures for Determining Competency Status in a JBCR Program.

(a) A JBCR program [The] psychiatrist or psychologist who has the qualifications described by Texas Code of Criminal Procedure Article 46B.022 must evaluate the individual's competency and report to the court as required by Article 46B.079. [for a JBCR pilot program, or psychiatrist or psychologist for a county-based JBCR program, must conduct at least two full psychiatric or psychological evaluations for each individual. The psychiatrist or psychologist must:]

[(1) conduct the first evaluation no later than the 21st day after the date JBCR program services began;]

[(2) conduct the second evaluation no later than the 55th day after the date JBCR program services began; and]

[(3) subsequent to evaluations completed in paragraphs (1) and (2) of this subsection, promptly submit a separate report for each psychiatric or psychological evaluation to the court.]

(b) A JBCR program psychiatrist or psychologist must promptly send a report to the court, if at any time during an individual's commitment for JBCR, the JBCR psychiatrist or psychologist determines the individual is: [At any time during the commitment for JBCR services consistent with the Texas Code of Criminal Procedure, Article 46B.091(h), but no later than the 60th day after the date JBCR services begin, the psychiatrist for a JBCR pilot program, or psychiatrist or psychologist for a county-based JBCR program, must determine if the individual is restored to competency, is unlikely to be restored to competency in the foreseeable future, or has not been restored to competency but will likely be restored in the foreseeable future. If the psychiatrist or psychologist determines the individual:]

(1) [is] restored to competency; or [, the psychiatrist or psychologist must send a report to the court demonstrating this determination;]

(2) [is] unlikely to be restored to competency in the foreseeable future.[, the psychiatrist or psychologist must send a report to the court demonstrating this determination, and coordinate with provider staff members, the court, and the county jail to ensure the transfer or release of the individual pursuant to the court's action to:]

[(A) proceed under the Texas Code of Criminal Procedure, Chapter 46B, Subchapter E or Subchapter F; or]

[(B) release the defendant on bail under the Texas Code of Criminal Procedure, Chapter 17; or]

[(3) has not been restored to competency but will likely be restored in the foreseeable future, if the individual is charged with:]

[(A) a felony offense, the psychiatrist or psychologist must coordinate with provider staff members, the court, and the county jail to ensure the transfer of the individual to the first available mental health facility or residential care facility for the remainder of the commitment period; or]

[(B) a misdemeanor offense, the psychiatrist or psychologist must coordinate with provider staff members, the court, and the county jail to ensure the transfer or release of the individual pursuant to the court's action to:]

[(i) order a single extension under the Texas Code of Criminal Procedure, Article 46B.080 and transfer of the individual to the first available mental health facility or residential care facility;]

[(ii) proceed in accordance with the Texas Code of Criminal Procedure, Chapter 46B, Subchapter E or Subchapter F;]

[(iii) release the defendant on bail in accordance with the Texas Code of Criminal Procedure, Chapter 17; or]

[(iv) dismiss the charges in accordance with the Texas Code of Criminal Procedure, Article 46B.010.]

(c) If the JBCR program psychiatrist or psychologist determines that the individual has not restored to competency by the end of the 60th calendar day after the date the individual began receiving JBCR, the JBCR program must continue to provide competency restoration services to the individual for the period authorized under Texas Code of Criminal Procedure Chapter 46B, Subchapter D, including any extension ordered under Article 46B.080, unless the JBCR program is notified that space at a mental health facility or residential care facility or an OCR program appropriate for the individual is available and:

(1) for an individual charged with a felony, not less than 45 calendar days are remaining in the initial restoration period; or

(2) an individual charged with a felony or misdemeanor, an extension has been ordered under Article 46B.080 and not less than 45 calendar days are remaining under the extension order.

(d) After receipt of a notice under subsection (c) of this section, the JBCR program must coordinate with the court and the county jail to ensure the transfer of the individual without unnecessary delay to the appropriate mental health facility, residential care facility, or OCR program for the remainder of the period permitted by Texas Code of Criminal Procedure Article 46B.073(b), including any extension that may be ordered under Article 46B.080 if an extension has not previously been ordered under that article.

(e) If the individual is not transferred, as referenced in subsection (d) of this section, and if the JBCR program psychiatrist or psychologist determines that the individual has not been restored to competency by the end of the period authorized under Texas Code of Criminal Procedure Chapter 46B, Subchapter D, the individual must be returned to the court for further proceedings.

§307.127.Preparation for Discharge from a JBCR Program.

(a) At any time an individual is restored to competency, the treatment team [psychiatrist or psychologist] must [collaborate with provider staff members to] coordinate the individual's continuity of care [continued services] and supports after discharge from the JBCR program to their discharge setting, including:

(1) the county jail;

(2) the LMHA;

(3) the LBHA;

(4) the LIDDA; [or]

(5) other community [another] mental health provider; or[.]

(6) the care of a responsible person.

(b) If the individual is determined to be [charged with a misdemeanor or felony and the individual is] unlikely to restore [be restored] to competency in the foreseeable future or is not restored after completing the JBCR program, the treatment team [psychiatrist or psychologist] must [collaborate with provider staff members to] coordinate the individual's continuity of care [continued services] and supports after discharge from the JBCR program to their discharge setting, including:

(1) a mental health facility;

(2) a residential care facility;

(3) the LMHA;

(4) the LBHA;

(5) the LIDDA;

(6) other community [another] mental health provider; or

(7) the care of a responsible person.

(c) If an individual is not restored to competency by the 60th day and is being transferred to a facility or OCR program, the JBCR treatment team [psychiatrist or psychologist] must[, if the individual is charged with: (1) a felony,] coordinate with discharge setting [provider ] staff members to link the individual for continuity of care [continued services] and supports post discharge from the JBCR program to:

(1) [(A)] a mental health facility; [or]

(2) [(B)] a residential care facility; or

(3) an OCR program.

[(2) a misdemeanor, coordinate with provider staff members to link the individual for continued services and supports post discharge from the JBCR program to:]

[(A) the county jail,]

[(B) a mental health facility;]

[(C) a residential care facility;]

[(D) the LMHA;]

[(E) the LBHA;]

[(F) the LIDDA; or]

[(G) another mental health provider.]

§307.129.Outcome Measures.

(a) For the purposes of this section, "competency as determined by the JBCR psychiatrist or psychologist" refers to the clinical opinion of the psychiatrist or psychologist provided under Texas Code of Criminal Procedure Articles 46B.079(b) and 46B.091, as applicable.

(b) A JBCR program [provider] must collect and report the following data for an individual admitted to a JBCR program, using HHSC's designated automation system [to HHSC on]:

(1) individual outcomes:

(A) the number of individuals on felony charges;

(B) the number of individuals on misdemeanor charges;

(C) date individual was ordered to JBCR;

(D) date of first JBCR service provided;

(E) whether the court granted an extension;

(F) [(C)] the average number of calendar days for an individual charged with a felony to be restored to competency, as determined by the JBCR psychiatrist or psychologist;

(G) [(D)] the average number of calendar days for an individual charged with a misdemeanor to be restored to competency, as determined by the JBCR psychiatrist or psychologist;

(H) [(E)] the number of individuals charged with a misdemeanor and not restored to competency, as determined by the JBCR psychiatrist or psychologist[for whom an extension was sought];

(I) the number of individuals charged with a felony and not restored to competency, as determined by the JBCR psychiatrist or psychologist;

(J) [(F)] the number of individuals charged with a misdemeanor and restored to competency, as determined by the JBCR psychiatrist or psychologist;

(K) the number of individuals charged with a felony and restored to competency, as determined by the JBCR psychiatrist or psychologist;

(L) [(G)] the average length of time between determination of non-restorability by the JBCR psychiatrist or psychologist and transfer to an inpatient [a state] mental health facility, [or] residential care facility, or OCR program pursuant to Texas Code of Criminal Procedures Article 46B.091(j-1);

(M) [(H)] the number [percentage] of individuals restored to competency as determined by the JBCR psychiatrist or psychologist in 60 calendar days or less;

(N) [(I)] the number of individuals [jail inmates] found IST who were found ineligible [screened out of or deemed inappropriate] for JBCR based on the JBCR program screening and the reason why; [and]

(O) [(J)] the number of individuals not restored to competency and who were transferred to an inpatient [a state] mental health facility or residential care facility; and

(P) the number of individuals whose charges were dismissed before completion of JBCR; and

(2) administrative outcomes, in a format specified by HHSC, for the JBCR program, including:

(A) the costs associated with operating the JBCR [pilot program or county-based JBCR] program; and

(B) the number of:

(i) reported and confirmed cases of abuse, neglect, and exploitation;

(ii) reported and confirmed cases of rights violations;

(iii) restraints and seclusions used;

(iv) emergency medications used;

(v) serious injuries; and

(vi) deaths, in accordance with 25 TAC §415.272 [of this title] (relating to Documenting, Reporting, and Analyzing Restraint or Seclusion) or Chapter 405, Subchapter K (relating to Deaths of Individuals Served by Community Mental Health Centers), as applicable.

§307.131.Compliance with Statutes, Rules, and Other Documents.

(a) In addition to any applicable federal or state law or rule, a JBCR program [provider] must comply with:

(1) Texas Health and Safety Code[,] Chapter 574 (relating to Court-Ordered Mental Health Services);

(2) Texas Human Resources Code Chapter 48 (relating to Investigations and Protective Services for Elderly Persons and Persons with Disabilities);

(3) [(2)] 25 TAC:

(A) Chapter 405, Subchapter K (relating to Deaths of Individuals Served by Community Mental Health Centers) [(relating to Deaths of Persons Served by TXMHMR Facilities or Community Mental Health and Mental Retardation Centers)];

(B) Chapter 414 (relating to Rights and Protections of Persons Receiving Mental Health Services) [Chapter 411, Subchapter N (relating to Standards for Services to Individuals with Co-occurring Psychiatric and Substance Use Disorders (COPSD))];

[(C) Chapter 414, Subchapter I (relating to Consent to Treatment with Psychoactive Medication--Mental Health Services);]

[(D) Chapter 414, Subchapter K (relating to Criminal History and Registry Clearances);]

[(E) Chapter 414, Subchapter L (relating to Abuse, Neglect, and Exploitation in Local Authorities and Community Centers);]

(C) [(F)] Chapter 415, Subchapter A (relating to Prescribing of Psychoactive Medication); and

(D) [(G)] Chapter 415, Subchapter F (relating to Interventions in Mental Health Services); and

(4) [(3)] 26 TAC: [37 TAC Part 9 (relating to Texas Commission on Jail Standards).]

(A) Chapter 301, Subchapter G (relating to Mental Health Community Services Standards); and

(B) Chapter 306, Subchapter A (relating to Standards for Services to Individuals with Co-occurring Psychiatric and Substance Use Disorders (COPSD)).

(b) Concerning confidentiality, a JBCR program [provider] must comply with the Health Insurance Portability and Accountability Act, 42 U.S.C. §1320d et seq [of 1996 (HIPAA)] and other applicable federal and state laws, including:

(1) 42 CFR Part 2 and Part 51, Subpart D;

(2) 45 CFR Parts 160 and 164, and Part 1326, Subpart C [§1386.22];

(3) Texas Health and Safety Code[,] Chapter 81, Subchapter F;

[(4) Texas Health and Safety Code, Chapter 241, Subchapter G;]

(4) [(5)] Texas Health and Safety Code[,] Chapters 181, 595, and 611;

(5) [(6)] Texas Health and Safety Code[,] §§533.009, [533.035(a), 572.004,] 576.005, 576.007, and 614.017;

(6) [(7)] Texas Government Code[,] Chapters 552 and 559[, and §531.042];

[(8) Texas Human Resources Code, Chapter 48;]

(7) [(9)] Texas Occupations Code[,] Chapter 159; and

(8) [(10)] Texas Business and Commerce Code[,] §521.053.

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 August 28, 2024.

TRD-202404039

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 593-0168

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to the Texas Administrative Code (TAC), Title 26, Chapter 350, Subchapter A, concerning General Rules, §350.103, §350.107; Subchapter B, concerning Procedural Safeguards and Due Process Procedures, §350.209, §350.225; Subchapter C, concerning Staff Qualifications, §350.303, §350.309, §350.312, §350.313, §350.315; Subchapter D, concerning Case Management for Infants and Toddlers with Developmental Disabilities, §350.403, §350.404, §350.405, §350.406, §350.407, §350.411, §350.415; Subchapter E, concerning Specialized Rehabilitative Services, §350.501, §350.507; Subchapter F, concerning Public Outreach, §350.605, §350.607, §350.609, §350.611, §350.613, §350.615, §350.617; Subchapter G, concerning Referral, Pre-Enrollment, and Developmental Screening, §350.704, §350.706, §350.707, §350.708, §350.709; Subchapter H, concerning Eligibility, Evaluation, and Assessment, §350.805, §350.807, §350.809, §350.811, §350.813, §350.815, §350.817, §350.821, §350.823, §350.825, §350.829, §350.833, 350.835, §350.837; Subchapter J, concerning Individualized Family Service Plan (IFSP), §350.1003, §350.1004, §350.1007, §350.1009, §350.1015, 350.1017, §350.1019; Subchapter K, concerning Service Delivery, §350.1104, §350.1108, §350.1111; Subchapter L, concerning Transition, §350.1203, §350.1207, 350.1209, §350.1211, §350.1213, §350.1215, §350.1217, §350.1219, §350.1221; Subchapter M, concerning Child and Family Outcomes, §350.1307, §350.1309; and Subchapter N, concerning Family Cost Share System, §350.1405, §350.1411, §350.1413, §350.1431, and §350.1433.

The Executive Commissioner of HHSC also proposes the repeal of 26 TAC Subchapter A, concerning General Rules, §350.101; Subchapter B, concerning Procedural Safeguards and Due Process Procedures; §350.201; Subchapter C, concerning Staff Qualifications; §350.301; Subchapter F, concerning Public Outreach, §350.601; Subchapter G, concerning Referral, Pre-Enrollment, and Developmental Screening, §350.701; Subchapter H, concerning Eligibility, Evaluation, and Assessment, §350.801; Subchapter J, concerning Individualized Family Service Plan (IFSP); §350.1001, Subchapter K, concerning Service Delivery, §350.1101; Subchapter L, concerning Transition, §350.1201, Subchapter M, concerning Child and Family Outcomes, §350.1301; and Subchapter N, concerning Family Cost Share System, §350.1401.

BACKGROUND AND PURPOSE

The purpose of the proposal is to amend rules as they relate to Early Childhood Intervention (ECI) to increase administrative efficiencies and improve processes for ECI subrecipients. This proposal also aims to repeal rules that are no longer needed.

The proposed changes also contain non-substantive changes that will improve readability, consistency, and understanding, as well as align language with HHSC rulemaking standards.

The proposed amendments and repeals are the result of the HHSC ECI program conducting a review of current rules, as required by Texas Government Code Section 2001.039, relating to 4-year reviews, and seeking input from current ECI subrecipients and stakeholders to identify ways to improve the long-term sustainability of the program. These proposed rules will address a number of areas including minimum staff qualifications, programmatic requirements, and additional needs identified by current subrecipients. Additionally, this rule project has allowed the ECI program to amend language related to immunizations to align with House Bill 44, 88th Texas Legislature, Regular Session, 2023, which amends Texas Government Code Chapter 531 by adding §531.02119.

There is no anticipated fiscal impact to state government from implementation of the proposed rules. All changes are to provide clarity and align rules with contract and federal requirements, or to allow administrative efficiencies for ECI subrecipients.

SECTION-BY-SECTION SUMMARY

The proposed amendments to 26 TAC Chapter 350 replace "contractor" with "subrecipient" throughout the chapter to align with ECI contracts, "early childhood intervention" with "ECI," and the "Texas Health and Human Services Commission" with "HHSC."

The proposed repeal of §350.101, Purpose, deletes the rule because the language is provided in the Code of Federal Regulations (CFR) and is not necessary to restate in rule.

The proposed amendment to §350.103, Definitions, amends existing definitions to clarify grammar and align with HHSC rulemaking standards and adds definitions for commonly used phrases and acronyms used throughout ECI rules that were not previously defined. The paragraphs are renumbered to account for the amendment, addition, and deletion of terms. The terms "Assessment," "Child," "Child Find," Complaint," "Comprehensive Needs Assessment," "Co-visits," "Days," "Developmental Delay," "Developmental Screenings," "Early Childhood Intervention Program," "Early Childhood Intervention Services," "EIS," "Evaluation," "Group Services," "HHSC," "HHSC ECI," "IFSP," "IFSP Services," "IFSP Team," "Interdisciplinary Team," "LPHA," "Native Language," "Natural Environments," "Parent," "Personally Identifiable Information," "Pre-Enrollment," Primary Referral Sources," "Public Agency," "Qualifying Medical Diagnosis," "Referral Date," "Routine Caregiver," "Service Coordinator," "Surrogate Parent," and "Telehealth services" are amended.

The terms "CFR," "DFPS," "ECI," "ECSE," "Face-to-face," "IDEA Part C," "IFSP services pages," "MOU," "SEA," "SRS," "SST," "Subrecipient," "TAC," "TEA," and "USC" are added as new terms.

The term "TCM" was moved from §350.403, relating to Case Management, to this section.

The term "ECI Professional" is deleted from its current location and moved up to follow alphabetization. The term is also amended for clarity.

The terms "Condition with a High Probability of Resulting in Developmental Delay," and "Contractor" are deleted.

The proposed amendment to §350.107, Health Standards for Early Childhood Intervention Services, amends language related to immunizations to align with House Bill (H.B.) 44, 88th Texas Legislature, Regular Session, 2023. H.B. 44 prohibits providers who participate in Medicaid or the child health plan program from refusing to provide health care services based solely on the recipient's failure to obtain a vaccine or immunization.

The proposed repeal of §350.201, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.209, Parent Rights in the Individualized Family Service Plan (IFSP) Process, removes the acronym from the title to align with HHS rulemaking standards. The amendment to §350.209 also makes non-substantive language revisions to align with HHSC rulemaking standards.

The proposed amendment to §350.225, Amendment of Records at Parent's Request, makes non-substantive language revisions to align with HHSC rulemaking standards.

The proposed repeal of §350.301, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.303, Definitions, amends existing definitions to clarify grammar and align with HHSC rulemaking standards. The amendment also adds definitions for commonly used phrases and acronyms used throughout ECI rules that were not previously defined. The terms "Criminal Background Check," "Dual Relationships," "Early Intervention Specialist (EIS) Active Status," "Early Intervention Specialist (EIS) Inactive Status," "EIS Registry," "Individualized Professional development Plan (IPDP)," "Professional Boundaries," "Service Coordinator Active Status," and "Service Coordinator Inactive Status" are amended. The term "EIS past due status" is added as new and the paragraphs are renumbered to account for the addition and amendment of terms.

The proposed amendment to §350.309, Minimum Requirements for All Direct Service Staff, adds new subsection (a) for terms used in this section, which includes "Consultation," "Record Review," and "Observation." These definitions were relocated from new subsection (f)(1) through (3) to avoid repetition. Language was also added to new (c)(1) and new (e) to clarify who qualifies as staff employed by the Local Education Agency (LEA). The proposed amendment also makes non-substantive language, grammar edits, revises an incorrect citation, revises cross references to accurately reflect reference changes, and renumbers the section to account for the addition of the subsection.

The proposed amendment to §350.312, Licensed Practitioner of the Healing Arts (LPHA), removes the acronym from the title to align with HHSC rulemaking standards. The proposed amendment also makes non-substantive revisions to improve clarity.

The proposed amendment to §350.313, Early Intervention Specialist (EIS), removes the acronym from the title to align with HHSC rulemaking standards and makes non-substantive grammar and language revisions throughout the section to align with HHSC rulemaking standards. The amendment to subsection (a) reduces barriers related to hiring early intervention specialists (EISes) and allows for administrative efficiencies related to updating degree and curriculum information through ongoing collaboration with subrecipients and institutes of higher education. Requirements related to qualifying and related degrees, coursework, and previous experience are being removed from TAC and posted on the HHSC website to allow the program more flexibility in adding or removing certain degrees or courses when appropriate.

New subsection (b) adds clarification on the requirements for being credentialed as an EIS. New subsection (c) adds clarification on requirements for the re-certification of an EIS. New subsection (d) corrects TAC cross-references. New subsection (e) adds clarification on the requirements for an EIS on active status, past due status, and inactive status. This proposed amendment provides clarification on the activities requiring EIS active status. New subsection (f) clarifies how active status can be regained when an EIS goes on past due status or inactive status. New subsection (g) covers the requirement discussed in old subsection (e). New subsection (h) covers the requirement discussed in old subsection (f).

The proposed amendment to §350.315, Service Coordinator, makes non-substantive language and grammar revisions for clarification and to align with HHSC rulemaking standards. The amendment removes duplicative language in subsection (b) that is in §350.403 and adds a cross-reference. References are updated in new subsections (c) and (e). The proposed amendment to new subsection (f) provides clarification on the requirements for active status and inactive status for service coordinators.

The proposed amendment to §350.403, Definitions, revises existing definitions and grammar to enhance clarity and align with HHSC rulemaking standards. The amendment to §350.403 also adds definitions for commonly used phrases and acronyms used throughout ECI rule that were not previously defined. The terms "Case management," Monitoring and assessment," and "Texas Health Steps" are amended. The terms "Developmental disability," "Service coordinator," and "TCM" are deleted.

The proposed amendment to §350.404, Recipient Eligibility for Early Childhood Intervention (ECI) Case Management Services, removes the acronym from the title in alignment with HHSC rulemaking standards. The amendment also makes non-substantive revisions to clarify existing language and align rule with rulemaking standards and updates a title to a reference.

The proposed amendment to §350.405, Case Management Services, makes non-substantive revisions to clarify existing language and align with HHSC rulemaking standards. Subsection (a) is added to provide that case management services may be provided via telehealth with written consent of the parent, but case management services must still be provided even if the parent declines to consent to telehealth services. New subsection (b) removes the case management definition that is repetitive of §350.403. New subsection (c) clarifies that targeted case management (TCM) should be offered to all children and families regardless of Medicaid enrollment and makes non-substantive language revisions for clarification. New subsections (d) and (e) add clarification for targeted case management (TCM) requirements.

The proposed amendment to §350.406, Parent Refusal, makes non-substantive language and grammar revisions to add clarity and to align with HHSC rulemaking standards.

The proposed amendment to §350.407, Medicaid Service Limitations, makes non-substantive language and grammar revisions to add clarity and separates the first paragraph into a subsection (a) and (b).

The proposed amendment to §350.411, Assignment of Service Coordinator, makes non-substantive language and grammar revisions to add clarity and to align with HHSC rulemaking standards.

The proposed amendment to §350.415, Documentation, makes non-substantive language and grammar revisions to add clarity and to align with HHSC rulemaking standards.

The proposed amendment to §350.501, Specialized Rehabilitative Services, makes language and grammar revisions to support clarity and consistency relating to referencing various ECI therapies and professionals. The amendment simplifies language to remove duplication across subsections, renumbers as necessary, and corrects outdated citations in (a)(2)(C)(ii) and (a)(3)(C). The removal of old subsection (c) and (e) removes duplicative language.

The proposed amendment to §350.507, Due Process, makes non-substantive revisions to grammar and language to provide clarity and align with HHSC rulemaking standards.

The proposed repeal of §350.601, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.605, Definitions, removes the definition for "Central directory" because the term is no longer used in this section, renumbers the paragraphs, and makes minor edits to "Public awareness" and "Public outreach."

The proposed amendment to §350.607, Public Outreach, corrects a minor grammar error.

The proposed amendment to §350.609, Child Find, makes minor grammar revisions to add clarification and align with HHSC rulemaking standards. The amendment moves language in subsection (d) to (a) and re-numbers the section accordingly to improve clarity on the requirement to document how HHSC ECI policy changes are communicated to referral sources.

The proposed amendment to §350.611, Public Awareness, makes non-substantive grammar and language revisions to improve clarity. The amendment to subsection (d) removes an outdated resource reference to improve accuracy.

The proposed amendment to §350.613, Publications, removes a reference to the ECI Graphics Manual and replaces it with a requirement for subrecipients to comply with graphics standards required by HHSC ECI to improve clarity on the requirement.

The proposed amendment to §350.615, Interagency Coordination, makes non-substantive grammar revisions and replaces defined terms with their associated acronyms. The amendment to subsection (c) replaces "auditory and visual impairment services" with "services for children who are deaf or hard of hearing or blind or visually impaired" to align with the person-first respectful language initiative.

The proposed amendment to §350.617, Public Outreach Contact, Planning, and Evaluation, makes non-substantive grammar revisions and abbreviates terms to their defined acronyms. The amendment to subsection (b) fixes a cross-reference in alignment with a rule revision. Language from subsection (d)(4) is relocated to create new subsection (e) for clarity.

The proposed repeal of §350.701, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.704, Referral Requirements, makes non-substantive grammar changes to align with HHSC rulemaking standards. The amendment to subsection (c) removes unnecessary citations and corrects acronyms.

The proposed amendment to §350.706, Referrals Received While the Child is in the Hospital, makes non-substantive grammar changes to align with the HHSC rulemaking standards. The amendment to subsection (b) also makes non-substantive revisions and re-arranges language to provide clarity. These changes clarify requirements for the interdisciplinary team that determines eligibility and helps to clarify the difference between the eligibility evaluation team and the IFSP team.

The proposed amendment to §350.707, Child Referred with an Out-of-State IFSP, updates the title to "Child Referred with an Out-of-State Individualized Family Service Plan" and replaces defined terms with their associated acronym.

The proposed amendment to §350.708, Pre-Enrollment Activities, makes minor language changes to align with ECI contracts and to establish consistency with acronym use.

The proposed amendment to §350.709, Optional Developmental Screenings, makes non-substantive language and organization changes to improve clarity. New subsections (d) and (e) are amended to clarify requirements per the memorandum of understanding (MOU) between HHSC ECI and the Department of Family and Protective Services by matching the language in the MOU.

The proposed repeal of §350.801, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.805, Definitions, amends existing definitions to clarify grammar and align with HHSC Rulemaking standards. The term "Adjusted Age" is amended and adds a definition for the new term "Chronological age."

The proposed amendment to §350.807, Eligibility, makes non-substantive language and grammar edits to improve clarity. New subsection (a) is added to provide clarification on federal requirements. Subsection (f) is added to stress the requirement to provide prior written notice. Existing subsection (c) is removed to reduce repetition between rules and federal regulations.

The proposed amendment to §350.809, Initial Eligibility Criteria, clarifies terminology and makes non-substantive grammar revisions to align with HHSC rulemaking standards. Amendments also align language with the person first respectful language initiative. A reference is added to paragraph (3)(C) to provide detail about the qualitative determination.

The proposed amendment to §350.811, Eligibility Determination Based on Medically Diagnosed Condition That Has a High Probability of Resulting in Developmental Delay, changes the title of the rule to "Qualifying Medical Diagnosis" improve clarity and align with commonly used terminology. Subsection (a) is edited for clarity. Old subsection (b) is deleted to remove duplicative language.

The proposed amendment to §350.813, Determination of Hearing and Auditory Status, changes the title of the rule to "Deaf or Hard of Hearing." Non-substantive clarifying edits are made to improve clarity and align language with the person-first respectful language initiative. New subsection (a) provides the requirements for determination of a child's eligibility for ECI services based on a child who is deaf or hard of hearing. New subsection (c) is added to clarify when a hearing screening tool may be used for a child who is eligible based on a qualifying medical diagnosis or meeting the definition of blind or visually impaired. Language from old subsections (c)(1) and (c)(2) is relocated to new subsection (e). New subsections (f) and (g) provide information for referring a child to the LEA.

The proposed amendment to §350.815, Determination of Vision Status, changes the title to "Blindness or Visual Impairment." New subsection (a) provides the requirements for determination of a child's eligibility for ECI services based on blindness or visual impairment. Non-substantive grammar edits are made to subsections (b) and (d) to improve clarity. New subsection (c) describes when a vision screening tool may be used. The amendment to new subsection (e) aligns language with the person-first respectful language initiative and makes non-substantive grammar edits to improve clarity. Language is added to provide the actions a subrecipient should take when a child is eligible based on blindness or visual impairment. Language from deleted subsection (d) is added to subsection (e)(2).

The proposed amendment to §350.817, Eligibility Determination Based on Developmental Delay, changes the title to "Developmental Delay." The amendment removes paragraph (3) in subsection (a) to remove redundancy throughout the chapter. Additional edits are made to grammar and organization to improve clarity. New paragraph (4) is added to provide requirements for children with a chronological or adjusted age of zero months or younger.

The proposed amendment to §350.821, Qualitative Determination of Developmental Delay, make non-substantive revisions to language and grammar, as well as the organization of the rule, to improve clarity.

The proposed amendment to §350.823, Continuing Eligibility Criteria, make non-substantive revisions to language and grammar, as well as the organization of the rule, to improve clarity. References to §350.813 and §350.815 of this subchapter are added to provide clarification on the requirements for the appropriate certified teacher or teachers who should be on the interdisciplinary team.

The proposed amendment to §350.825, Eligibility Statement, re-organizes information and make non-substantive revisions to language and grammar to improve clarity. The subsections are renumbered to account for the reorganization.

The proposed amendment to §350.829, Review of Nutrition Status, adds clarifying language and makes minor grammar edits to align with HHSC rulemaking standards.

The proposed amendment to §350.833, Autism Screening, adds clarifying information related to referrals and screening for autism spectrum disorder and makes non-substantive language and grammar edits to improve clarity and align with rulemaking standards. New subsection (e) clarifies the need for written parental consent to refer a child to their health care provider to complete the Modified Checklist for Autism in Toddlers Revised (M-CHAT-R) and the follow-up interview. New subsection (f) clarifies the subrecipient's responsibility to obtain written parental consent to complete the M-CHAT-R and the follow-up interview if the child is not screened by their provider or is unable to receive the screening in a timely manner. The section is renumbered to account for the addition of new subsections (e) and (f).

The proposed amendment to §350.835, Contractor Oversight, changes the title to "Subrecipient Oversight." Non-substantive clarifying edits and minor grammar edits are made to align with HHSC rulemaking standards.

The proposed amendment to §350.837, Needs Assessment, makes non-substantive revisions to remove duplicative language and improve clarity and to align with HHSC rulemaking standards.

The proposed repeal of §350.1001, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.1003, Definitions, amends existing definitions to align with HHSC rulemaking standards. The terms "Functional Ability," "IFSP Goals," and "Periodic Review" are amended.

The proposed amendment to §350.1004, Individualized Family Service Plan (IFSP) Development, removes the acronym from the rule title to align with HHSC rulemaking standards. The amendment also makes non-substantive grammar and language revisions to improve clarity and align with HHSC rulemaking standards.

The proposed amendment to §350.1007, Interim Individualized Family Service Plan (IFSP), removes the acronym from the rule title to align with HHSC rulemaking standards. The amendment also makes non-substantive grammar and language revisions to improve clarity and align with HHSC rulemaking standards.

The proposed amendment to §350.1009, Participants in Initial and Annual Individualized Family Service Plan (IFSP) Meetings, removes the acronym from the rule title to align with HHSC rulemaking standards. The amendment makes non-substantive grammar, language, and organization revisions to improve clarity and align with HHSC rulemaking standards. The amendment to subsection (a) and deletion of subsection (b) is to remove duplicative language.

The proposed amendment to §350.1015, Content of the IFSP, removes the acronym from the rule title and spells out "IFSP" to align with HHSC rulemaking standards. The amendment clarifies existing language and makes grammar edits to align with HHSC rulemaking standards. Edits to subsections (b) and (d) revise an incorrect cross-reference.

The proposed amendment to §350.1017, Periodic Reviews, makes non-substantive clarifying grammar and language edits. The amendment to subsection (f) corrects a cross-reference.

The proposed amendment to §350.1019, Annual Meeting to Evaluate the IFSP, removes and spells out the acronym in the title to align with HHSC rulemaking standards. Edits to subsection (a) clarify requirements for the annual meeting to evaluate the IFSP after determination of continuing eligibility. Subsection (b)(1)(C) removes (i) through (iii) because they are listed in the referenced rule, §350.1307. The amendment to the section makes non-substantive language and grammar edits to enhance clarity and reduce duplication and updates references.

The proposed repeal of §350.1101, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.1104, Early Childhood Intervention Services Delivery, makes non-substantive language, grammar, and organization revisions to improve clarity.

The proposed amendment to §350.1108, State Funded Respite Services, makes a non-substantive grammar revision to the title of the rule to align with HHSC rulemaking standards. The amendment to the section makes non-substantive clarifying grammar revisions. Subsection (c)(3) removes specific language related to the hourly limit of respite services to reduce barriers. This information will be posted on the HHSC ECI website.

The proposed amendment to §350.1111, Service Delivery Documentation Requirements, makes non-substantive clarifying edits to language and grammar.

The proposed repeal of §350.1201, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.1203, Definitions, makes non-substantive language and grammar revisions to enhance clarity and align with HHSC rulemaking standards. The terms "Community Transition Meeting," "LEA Notification," "LEA Notification Opt Out," "LEA Transition Conference," "Limited Personally Identifiable Information," and " Transition Planning" are amended.

The proposed amendment to §350.1207, Transition Planning, makes non-substantive revisions to language and grammar to enhance clarity and align with HHSC rulemaking standards.

The proposed amendment to §350.1209, SEA Notification, removes the acronym in the title and spells out the term to align with HHSC rulemaking standards. The amendment makes non-substantive revisions to add acronyms for terms that are defined and separate existing language into subsections to enhance clarity.

The proposed amendment to §350.1211, Local Education Agency (LEA) Notification of Potential Eligibility for Special Education Services, removes and spells out the acronym in the title and revises the title to "Local Education Agency Notification of Potential Eligibility for Early Childhood Special Education Services" to align with HHSC rulemaking standards. The amendment to subsections (a) and (b) and subsequently, subsection (d), adds clarity.

The proposed amendment to §350.1213, LEA Notification Opt Out, changes the title to "The Family's Right to Opt Out of the Local Education Agency Notification." The amendment makes non-substantive clarifying edits and renumbers the subsections accordingly.

The proposed amendment to §350.1215, Reporting Late LEA Notifications, removes and spells out the acronym to align with HHSC rulemaking standards. The paragraph is split into new subsections (a) and (b) and edits are made for clarification.

The proposed amendment to §350.1217, LEA Transition Conference, removes and spells out the acronym to align with HHSC rulemaking standards. The amendment makes non-substantive clarifying edits. The deletion of subsection (a) removes duplicative language.

The proposed amendment to §350.1219, Transition to LEA Services, removes and spells out the acronym to align with HHSC rulemaking standards. The amendment makes non-substantive clarifying edits.

The proposed amendment to §350.1221, Transition Into the Community, updates the title to "Transition Into Community Supports and Services." The amendment makes non-substantive clarifying edits and aligns with the person-first respectful language initiative.

The proposed repeal of §350.1301, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.1307, Child Outcomes, makes non-substantive clarifying edits.

The proposed amendment to §350.1309, Family Outcomes, makes non-substantive clarifying edits.

The proposed repeal of §350.1401, Purpose, deletes the rule because the language is provided in CFR and is not necessary to restate in rule.

The proposed amendment to §350.1405, Definitions, makes non-substantive language and grammar edits to improve clarity. The terms "Ability to Pay," "Adjusted Income," "Allowable Deductions," "CHIP," "Dependent," "Family Cost Share System," "Federal Poverty Guidelines," "Gross Income," "Inability to Pay," "Maximum Charge," "Out-of-Pocket," "Sliding Fee Scale," and "Third-Party Payor" are amended.

The proposed amendment to §350.1411, Early Childhood Intervention Services Provided with No Out-of-Pocket Payment from the Parent, makes non-substantive clarifying edits and aligns with the person-first respectful language initiative.

The proposed amendment to §350.1413, Individualized Family Service Plan (IFSP) Services Subject to Out-of-Pocket Payment from the Family, removes the acronym in the title to align with HHSC rulemaking standards and changes the title to "Individualized Family Service Plan Services Subject to Out-of-Pocket Payment." The amendment makes non-substantive clarifying edits and updates a cross-reference.

The proposed amendment to §350.1431, Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI) Sliding Fee Scale, removes the acronyms in the title to align with HHSC rulemaking standards. The proposed amendment makes non-substantive grammar revisions. Existing subsection (c) is renumbered as new subsection (b) and amended to remove a sentence that no longer applies, as all children and families currently enrolled in ECI have enrolled after September 1, 2015, and updates the citation to the figure.

Figure 26 TAC §350.1431(c) is now located in new subsection (b). The table is amended for clarity and to update a formatting error.

The proposed amendment to §350.1433, Billing Families for IFSP Services, removes and spells out the acronym to align with HHSC rulemaking standards.

FISCAL NOTE

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

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create new regulations;

(6) the proposed rules will expand existing regulations;

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

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

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

Trey Wood, Chief Financial Officer, 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 are necessary to protect the health, safety, and welfare of the residents of Texas; do not impose a cost on regulated persons; are amended to reduce the burden or responsibilities imposed on regulated persons by the rules; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Rob Ries, Deputy Executive Commissioner for Family Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be improved ECI services for infants and toddlers with developmental delays or disabilities by addressing barriers in recruitment of ECI professionals for ECI subrecipients. The rules will also benefit the public through improving clarity of processes and procedures, ultimately reducing confusion and complications for ECI subrecipients.

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 there are no changes in ECI processes or procedures, therefore there are no changes in how required persons comply with the rules.

TAKINGS IMPACT ASSESSMENT

HHSC ECI 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 Section 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 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to ECI.Policy@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 24R028" in the subject line.

SUBCHAPTER A. GENERAL RULES

26 TAC §350.101

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.101.Purpose.

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 August 30, 2024.

TRD-202404080

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.103.Definitions.

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

(1) Assessment--As defined in 34 CFR §303.321(a)(2)(ii), the ongoing procedures used by appropriate qualified personnel [throughout the period of a child's eligibility for early childhood intervention (ECI) services] to assess the child's individual strengths and needs and determine the appropriate services to meet those needs throughout the period of a child's eligibility for ECI services.

(2) Child--An infant or toddler under the age of three. [toddler, from birth through 35 months, as defined in 34 CFR §303.21.]

(3) Child find [Find]--As described in 34 CFR §§303.115, 303.302, and 303.303, activities and strategies designed to locate and identify, as early as possible, infants and toddlers with developmental delay.

(4) CFR--Code of Federal Regulations. The codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government.

(5) [(4)] Complaint--A formal written allegation submitted to HHSC [the Texas Health and Human Services Commission (HHSC)] stating that a requirement of IDEA Part C [the Individuals with Disabilities Education Act (IDEA)] or an applicable federal or state regulation has been violated.

(6) [(5)] Comprehensive needs assessment [Needs Assessment]--The process [Conducted by an interdisciplinary team as defined in paragraph (25) of this section as a part of the Individualized Family Services Plan (IFSP) development process, the process] for identifying a child's unique strengths and needs, and the family's resources, concerns, and priorities in order to develop an IFSP. The comprehensive needs assessment: [The comprehensive assessment process gathers information across developmental domains regarding the child's abilities to participate in the everyday routines and activities of the family.]

(A) is conducted by an interdisciplinary team as defined in paragraph (29) of this section; and

(B) gathers information across developmental domains regarding the child's abilities to participate in the everyday routines and activities of the family.

[(6) Condition with a High Probability of Resulting in Developmental Delay--A medical diagnosis known and widely accepted within the medical community to result in a developmental delay over the natural course of the diagnosis.]

(7) Consent--As defined in 34 CFR §303.7 and meeting all requirements in 34 CFR §303.420.

[(8) Contractor--A local private or public agency with proper legal status and governed by a board of directors or governing authority that accepts funds from HHSC to administer an early childhood intervention program.]

(8) [(9)] Co-visits--When two or more ECI professionals [service providers] deliver different services to the child during the same period of time. Co-visits are provided when a child will receive greater benefit from services being provided at the same time, rather than individually.

(9) [(10)] Days--Calendar days, except for LEA [local education agency (LEA)] services, which are defined as "school days."

(10) [(11)] Developmental delay [Delay]--As defined in Texas Human Resources Code §73.001(3) and determined to be significant in compliance with the criteria and procedures in Subchapter H of this chapter (relating to Eligibility, Evaluation, and Assessment).

(11) [(12)] Developmental screenings [Screenings]--General screenings provided by the ECI [early childhood intervention] program to assess the child's need for further evaluation.

(12) DFPS--Department of Family and Protective Services. The state agency that provides family reunification services for families. These services are provided to families and children to protect the children from abuse and neglect and help the family reduce the risk of abuse and neglect.

(13) ECI--Early Childhood Intervention.

(14) ECI professional--An individual employed by or under the direction of an ECI program who meets the requirements of qualified personnel as defined in 34 CFR §303.13(c) and §303.31, and who is knowledgeable in child development and developmentally appropriate behavior, possesses the requisite education and experience, and demonstrates competence to provide ECI services.

(15) [(13)] ECI program [Early Childhood Intervention Program]--In addition to the definition of early intervention service program as defined in 34 CFR §303.11, a program operated by a subrecipient of HHSC ECI [the contractor] with the express purpose of implementing a system to provide ECI [early childhood intervention] services to children with developmental delays and their families.

(16) [(14)] ECI services [Early Childhood Intervention Services]--Individualized IDEA Part C [early childhood intervention] services determined by the IFSP team to be necessary to support the family's ability to enhance their child's development. ECI [Early childhood intervention] services are further defined in 34 CFR §303.13 and §303.16 and §350.1105 of this chapter (relating to Capacity to Provide Early Childhood Intervention Services).

[(15) ECI Professional--An individual employed by or under the direction of an HHSC Early Childhood Intervention Program contractor who meets the requirements of qualified personnel as defined in 34 CFR §303.13(c) and §303.31, and who is knowledgeable in child development and developmentally appropriate behavior, possesses the requisite education and experience, and demonstrates competence to provide ECI services.]

(17) ECSE--Early Childhood Special Education. The state and federally mandated program for young children with disabilities ages three to five under IDEA Part B, Section 619.

(18) [(16)] EIS--Early intervention specialist [Intervention Specialist]. A credentialed professional who meets specific educational requirements established by HHSC ECI in §350.313(a) of this chapter (relating to Early Intervention Specialist[(EIS)]) and has specialized knowledge in early childhood cognitive, physical, communication, social-emotional, and adaptive development.

(19) [(17)] Evaluation--The procedures used by qualified personnel to determine a child's initial and continuing eligibility for ECI [early childhood intervention] services that comply with the requirements described in 34 CFR §303.21 and §303.321.

(20) Face-to-face--The delivery of ECI services in-person or via telehealth.

(21) [(18)] FERPA--Family Educational Rights and Privacy Act of 1974, 20 USC §1232g, as amended, and implementing regulations at 34 CFR Part 99. Federal law that outlines privacy protection for parents and children enrolled in the ECI program. FERPA includes rights to confidentiality and restrictions on disclosure of personally identifiable information, and the right to inspect records.

(22) [(19)] Group services [Services]--ECI [Early childhood intervention] services provided at the same time to no more than four children and their parent or parents or routine caregivers per ECI professional [service provider] to meet the developmental needs of the individual infant or toddler.

(23) [(20)] HHSC--Texas Health and Human Services Commission. [The entity designated as the lead agency by the governor under the Individuals with Disabilities Education Act, Part C.]

(A) HHSC has the final authority and responsibility for the administration, supervision, and monitoring of programs and activities under this system.

(B) HHSC has the final authority for the obligation and expenditure of funds and compliance with all applicable laws and rules.

(24) [(21)] HHSC ECI--[The] Texas Health and Human Services Commission Early Childhood Intervention [Services]. The entity designated as the lead agency, as defined by 34 CFR §303.22. HHSC ECI is [state program] responsible for maintaining and implementing the statewide IDEA Part C system. [early childhood intervention system required under the Individuals with Disabilities Education Act, Part C, as amended in 2004.]

(25) IDEA Part C--The Individuals with Disabilities Education Act, Part C, as amended in 2004.

(26) [(22)] IFSP--Individualized Family Service Plan as defined in 34 CFR §303.20. A written plan of care for providing ECI [early childhood intervention] services and other medical, health, and social services to an eligible child and the child's family when necessary to enhance the child's development. The IFSP is considered complete when the parent has signed the IFSP and received a copy.

(27) [(23)] IFSP services [Services]--The individualized ECI [early childhood intervention] services listed in the IFSP that have been determined by the IFSP team to be necessary to enhance an eligible child's development.

(28) IFSP services pages--The standardized form designated by HHSC ECI that constitutes the required final pages of the IFSP used to record ECI services planned for the child.

(29) [(24)] IFSP team [Team]--An interdisciplinary team that meets the requirements in 34 CFR §303.24(b) and works collaboratively to develop, review, modify, and approve the IFSP. The IFSP team includes, at a minimum, the child's parent and at least two ECI professionals from different disciplines or professions. [It includes the parent; the service coordinator; all ECI professionals providing services to the child, as planned on the IFSP; certified Teachers of the Deaf and Hard of Hearing, as appropriate; and certified Teachers of Students with Visual Impairments, as appropriate.]

(A) At least one of the ECI professionals must be the family's assigned service coordinator.

(B) At least one of the ECI professionals must be an LPHA.

(C) At least one ECI professional must have been involved in conducting the evaluation. This may be the LPHA or another professional.

(D) If the LPHA attending the IFSP meeting did not conduct the evaluation, the subrecipient must ensure that the most recent observations and conclusions of the LPHA who conducted the evaluation were communicated to the LPHA attending the initial IFSP meeting and incorporated into the IFSP.

(E) Other team members may participate by other means acceptable to the team.

(30) [(25)] Interdisciplinary team [Team]--In addition to the definition of multidisciplinary team as defined in 34 CFR §303.24, a team that consists of at least two ECI professionals from different disciplines and the child's parent.

(A) One of the ECI professionals must be an LPHA. [a Licensed Practitioner of the Healing Arts (LPHA).]

(B) The team may include representatives of the LEA.

(C) Professionals on the team shall share a common perspective regarding infant and toddler development and developmental delay [and work collaboratively to conduct evaluation, assessment, IFSP development, and to provide intervention].

(D) Professionals on the team must work collaboratively to:

(i) conduct the evaluation and assessment;

(ii) develop the IFSP; and

(ii) provide ECI services.

(31) [(26)] LEA--Local educational agency as defined in 34 CFR §303.23.

(32) [(27)] LPHA--Licensed practitioner of the healing arts [Practitioner of the Healing Arts]. A licensed physician, registered nurse, licensed physical therapist, licensed occupational therapist, licensed speech language pathologist, licensed professional counselor, licensed clinical social worker, licensed psychologist, licensed dietitian, licensed audiologist, licensed physician assistant, licensed marriage and family therapist, licensed intern in speech language pathology, licensed behavior analyst, or advanced practice registered nurse who is an employee or a subcontractor of an ECI subrecipient. [contractor.] LPHA responsibilities are further described in §350.312 of this chapter (relating to Licensed Practitioner of the Healing Arts). [Arts (LPHA)).]

(33) [(28)] Medicaid--The medical assistance entitlement program administered by HHSC.

(34) MOU--Memorandum of understanding. A written document evidencing the understanding or agreement of two or more parties regarding the subject matter of the agreement.

(35) [(29)] Native language [Language]--As defined in 34 CFR §303.25.

(A) When used with respect to an individual who is limited English proficient (as that term is defined in IDEA Part B, Section 602(18)), [section 602(18) of the Individuals with Disabilities Education Act),] native language means:

(i) the language normally used by that individual, or, in the case of a child, the language normally used by the parents of the child; and

(ii) for evaluations and assessments conducted pursuant to 34 CFR §303.321(a)(5) and (a)(6), the language normally used by the child, if determined developmentally appropriate for the child by qualified personnel conducting the evaluation or assessment.

(B) When used with respect to an individual who is deaf or hard of hearing, blind or visually impaired, or for an individual with no written language, "native language" means the mode of communication that is normally used by the individual (such as sign language, braille, or oral communication).

(36) [(30)] Natural environments [Environments]--As defined in 34 CFR §303.26, settings that are natural or typical for a same-aged infant or toddler without a disability. A natural environment[,] may include the home or community settings, include [includes ] the daily activities of the child and family or caregiver, and must be consistent with the provisions of 34 CFR §303.126.

(37) [(31)] Parent--As defined in 20 USC §1401(23) [§1401] and 34 CFR §303.27.

(38) [(32)] Personally identifiable information [Identifiable Information]--As defined in 34 CFR §99.3 and 34 CFR §303.29.

(39) [(33)] Pre-enrollment [Pre-Enrollment]--All family-related activities from the time the referral is received up until the time the parent signs the initial IFSP.

(40) [(34)] Primary referral sources [Referral Sources]--As defined in 34 CFR §303.303(c).

(41) [(35)] Public agency [Agency]--HHSC and any other state agency or political subdivision of the state that is responsible for providing ECI [early childhood intervention] services to eligible children under IDEA [the Individuals with Disabilities Education Act,] Part C.

(42) [(36)] Qualifying medical diagnosis [Medical Diagnosis]--A diagnosed medical condition that has a high probability of developmental delay as determined by HHSC, as described in §350.811 of this chapter (relating to Qualifying Medical Diagnosis).[Eligibility Determination Based on Medically Diagnosed Condition That Has a High Probability of Resulting in Developmental Delay).]

(43) [(37)] Referral date [Date]--The date the child's name and sufficient information to contact the family was obtained by the subrecipient. [contractor.]

(44) [(38)] Routine caregiver [Caregiver]--An adult who:

(A) has written authorization from the parent to participate in ECI [early childhood intervention] services with the child, even in the absence of the parent;

(B) participates in the child's daily routines;

(C) knows the child's likes, dislikes, strengths, and needs; and

(D) may be the child's relative, childcare provider, or other person who regularly cares for the child.

(45) SEA--State educational agency as defined by 34 CFR §303.3(b).

(46) [(39)] Service coordinator [Coordinator]--An employee or subcontractor of an ECI subrecipient [The contractor's employee or subcontractor] who:

(A) meets all applicable requirements in Subchapter C of this chapter (relating to Staff Qualifications);

(B) is assigned to be the single contact point for the family;

(C) is responsible for providing case management services as described in §350.405 of this chapter (relating to Case Management Services); and

(D) is from the profession most relevant to the child's or family's needs or is otherwise qualified to carry out all applicable responsibilities.

(47) SRS--Specialized rehabilitative services. Rehabilitative services outlined in §350.501 of this chapter (relating to Specialized Rehabilitative Services) that promote age-appropriate development by correcting deficits and teaching compensatory skills for deficits that directly result from medical, developmental, or other health-related conditions.

(48) SST--Specialized skills training. As defined by 34 CFR 303.13(b)(14). SST seeks to reduce the child's functional limitations across developmental domains, including strengthening the child's cognitive skills, positive behaviors, and social interactions.

(49) Subrecipient--A local private or public agency with proper legal status and governed by a board of directors or governing authority that accepts funds from HHSC to administer an ECI program.

(50) [(40)] Surrogate parent [ Parent]--A person assigned to act as a surrogate for the parent in compliance with IDEA Part C [the Individuals with Disabilities Education Act, Part C] and this chapter.

(51) TAC--Texas Administrative Code. A compilation of all state agency rules in Texas.

(52) TCM--Targeted case management. Case management activities that meet criteria in §350.405(c) of this subchapter and are reimbursable by Medicaid when provided to Medicaid-enrolled children who are eligible for ECI.

(53) TEA--Texas Education Agency. The state agency that oversees primary and secondary public education. It is headed by the commissioner of education.

(54) [(41)] Telehealth services--Health care [Healthcare] services, other than telemedicine medical services, delivered by a health professional licensed, certified, or otherwise entitled to practice in Texas and acting within the scope of the health professional's license, certification, or entitlement to a patient who is located at a different physical location than the health professional using synchronous audio-visual telecommunications or information technology.

(55) USC--United States Code. The official codification of the general and permanent federal statutes of the United States.

§350.107.Health Standards for Early Childhood Intervention Services.

(a) The subrecipient [contractor] must implement written policies and procedures that cover the following areas:

(1) administration of medication, if applicable;

(2) infectious disease prevention and management, [management] including:

(A) adherence to universal precautions as defined by the Centers for Disease Control of the United States Public Health Service;

(B) compliance with the Texas Communicable Disease Prevention and Control Act, Texas Health and Safety Code[,] Chapter 81; and

(C) immunization guidelines [and requirements] as specified by the Texas Department of State Health Services.

(b) The subrecipient [contractor] must follow all federal and state laws [law] and regulations regarding providing services and maintaining records for families and children with Human Immunodeficiency Virus [HIV] or other communicable diseases. [disease.]

(c) The subrecipient must not refuse to provide ECI services to a child based solely on the family's refusal or failure to obtain a vaccine or immunization for a particular infectious or communicable disease. The subrecipient is not in violation of this rule if the subrecipient adopts a policy requiring children receiving group services to be vaccinated or immunized against a particular infection or communicable disease if the policy provides an exemption from each required vaccination or immunization based on:

(1) a reason of conscience, including a sincerely held religious belief, observance, or practice, that is incompatible with the administration of the vaccination or immunization; or

(2) a recognized medical condition for which the vaccination or immunization is contraindicated.

[(c) Children who participate in any ECI group activities must have immunizations as recommended by the Texas Department of State Health Services. The contractor must inform the family of the importance of immunizations and assist the family with obtaining immunizations if necessary. An exception may be made if medical or religious reasons prevent immunizations. If so, documentation must be maintained, and the family must be notified that the child may be excluded from group activities if a contagious outbreak occurs.]

(d) The subrecipient must accept oral or written requests for an exemption.

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 August 30, 2024.

TRD-202404081

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.201

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.201.Purpose.

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 August 30, 2024.

TRD-202404082

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.209.Parent Rights in the Individualized Family Service Plan [(IFSP)] Process.

The subrecipient [contractor] must explain the contents of the IFSP to the parent or parents and obtain informed written consent from a parent before providing any ECI [early childhood intervention] services. A [The] parent has the right to:

(1) be present and participate in the development of the IFSP;

(2) have decisions about ECI [early childhood intervention] services made based on the individualized needs of the child and family;

(3) receive a full explanation of the IFSP, including the identified strengths and needs of the child and family, priorities of the family, the developmental goals for the child and the recommended services to meet those goals, and any identified service coordination and case management goals;

(4) consent to some, but not all, ECI [early childhood intervention] services;

(5) receive all IFSP services for which the parent gives consent;

(6) request an administrative hearing or file a complaint with HHSC [the Texas Health and Human Services Commission ] if the parent does not agree with the other IFSP team members;

(7) indicate disagreement in writing in the parent's native language with a part of the IFSP, even if [though] the parent consents to ECI [early childhood intervention] services;

(8) have the IFSP written in the parent's native language, as defined in §350.103 of this chapter (relating to Definitions), or mode of communication; and

(9) receive a complete copy of the IFSP in a timely manner.

§350.225.Amendment of Records at Parent's Request.

(a) A parent who believes that information in records collected, maintained, or used under this section is inaccurate, misleading, [inaccurate or misleading] or a violation of [violates] the privacy or other rights of the child, may request that the subrecipient [the contractor which maintains the information to] amend the information.

(b) The subrecipient [contractor] decides whether to amend the information in accordance with the request no more than [within] 30 days after the request is made.

(c) If, after review of the request, the subrecipient [contractor] decides the information is inaccurate, misleading, [misleading] or otherwise in violation of the privacy or other rights of the child, it amends the record accordingly and informs the parent in writing.

(d) If the subrecipient [contractor] refuses to amend the information in accordance with the request, it informs the parent of the refusal, and advises the parent of the right to a hearing conducted in accordance with the requirements of [the] FERPA.

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 August 30, 2024.

TRD-202404083

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.301

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.301.Purpose.

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 August 30, 2024.

TRD-202404084

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.303.Definitions.

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

(1) Criminal background check [Background Check]--Review of fingerprint-based criminal history record information.

(2) Dual relationships [Relationships]--When the person providing ECI [early childhood intervention] services engages in activities with the family that go beyond his or her professional boundaries.

(3) EIS active status--Refers to the current standing of an EIS who has maintained a current credential by fulfilling all necessary initial credentialing and renewal requirements by their respective due dates. An EIS is considered active upon completion of the current orientation to HHSC ECI and remains on active status by completing initial credentialing requirements and continuing education requirements as defined in §350.313 of this subchapter (relating to Early Intervention Specialist). [Early Intervention Specialist (EIS) Active Status--When an EIS is employed or subcontracting with a contractor and holds a current active credential.]

(4) EIS inactive status--Refers to the current standing of an EIS who is [Early Intervention Specialist (EIS) Inactive Status--When an EIS is] not employed or subcontracting with an ECI program [a contractor] or does not hold a current active credential.

(A) An EIS is considered on long-term inactive status when they are on inactive status for 48 months or more since the date the EIS credential was removed from their record or the date their employment was terminated.

(B) An EIS is considered on short-term inactive status when they are on inactive status for less than 48 months since the date the EIS credential was removed from their record or the date their employment was terminated.

(5) EIS past due status--Refers to the current standing of an EIS whose credential has lapsed.

(A) An EIS is considered on past due status when:

(i) the EIS fails to complete initial credentialing or renewal activities by the designated due date; or

(ii) the EIS transfers from another ECI program and fails to complete the orientation to HHSC ECI within 30 days after their hire date, unless the EIS has documentation that they have completed the current orientation module.

(B) An EIS is considered on long-term past due status when they are on past due status for 48 months or more since their credential lapsed.

(C) An EIS is considered on short-term past due status when they are on past due status for less than 48 months since their credential lapsed.

(6) [(5)] EIS Registry--A system used by HHSC ECI to maintain current required EIS information submitted by ECI programs. [contractors. HHSC ECI designates Early Intervention Specialists. The EIS credential is only valid within the Texas IDEA Part C system.]

(7) [(6)] IPDP--Individualized Professional Development Plan. [Individualized Professional Development Plan (IPDP)--] The training and technical assistance plan developed when a staff person begins employment at an ECI program. [contractor. The IPDP can include but is not limited to orientation training, EIS credentialing activities, service coordination training, and other training or professional development required by the program or HHSC ECI.]

(8) [(7)] Professional boundaries [Boundaries]--Financial, physical, and emotional limits to the relationship between the ECI professional providing ECI [early childhood intervention] services and the family.

(9) [(8)] Service coordinator active status--Refers to the current standing of a service coordinator who is [Coordinator Active Status--When a service coordinator is] employed by or subcontracting with an ECI program [a contractor] and is current with continuing education requirements specified by HHSC ECI.

(10) [(9)] Service coordinator inactive status--Refers to the current standing of a service coordinator who [Coordinator Inactive Status--When a service coordinator] is not employed by or subcontracting with an ECI program [a contractor] or is not current with continuing education requirements specified by HHSC ECI.

§350.309.Minimum Requirements for All Direct Service Staff.

(a) For the purposes of this section, the following terms are defined as follows.

(1) Consultation--Evaluation and development of staff knowledge, skills, and abilities in the context of case-specific problem solving.

(2) Record review--A review of documentation in child records to evaluate compliance with the requirements of this chapter, and quality, accuracy, and timeliness of documentation. It also includes feedback to staff to identify areas of strength and areas that need improvement.

(3) Observation--Watching staff interactions with children and families and providing guidance and feedback about the interaction.

(b) [(a)] The subrecipient [contractor] must comply with HHSC ECI [the Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI)] requirements related to health regulations for all direct service staff. The subrecipient [contractor] must comply with 2 CFR Part 3485 [34 CFR Part 85] and Texas Health and Safety Code Chapter 81.

(c) [(b)] The subrecipient [contractor] must comply with HHSC ECI requirements related to initial training requirements for direct service staff. Before providing services, all staff must:

(1) with the exception of teachers of the deaf or hard of hearing, teachers of students with visual impairment, and certified orientation and mobility specialists, complete orientation training as required by HHSC ECI; [ECI. This requirement does not apply to staff employed by the Local Education Agency (LEA);]

(2) hold current certification in first-aid and cardiopulmonary resuscitation for children and infants; and

(3) complete universal precautions training that aligns with recommendations from the Centers for Disease Control and Prevention.

(d) [(c)] The subrecipient [contractor] must comply with HHSC ECI requirements related to continuing education requirements for direct service staff. All staff providing ECI [early childhood intervention] services to children and families must maintain current certification in first aid and cardiopulmonary resuscitation for children and infants.

(e) [(d)] With the exception of teachers of the deaf or hard of hearing, teachers of students with visual impairments, and certified orientation and mobility specialists, the subrecipient [The contractor] must verify that all newly employed staff: [staff, except staff employed by the LEA:]

(1) are qualified in terms of education and experience for their assigned scopes of responsibilities;

(2) are competent to perform the job-related activities before providing ECI [early childhood intervention] services; and

(3) complete orientation training as required by HHSC ECI before providing ECI [early childhood intervention] services.

(f) [(e)] The subrecipient [contractor] must comply with HHSC ECI requirements related to supervision of direct service staff. A subrecipient [contractor ] must implement a system of supervision and oversight that consists of consultation, record review, and observation from a qualified supervisor. [The intent of supervision is to provide oversight and direction to staff.] Supervisor qualifications are further described in §350.313(d) [§350.313(c)] and §350.315(e) [§350.315(d)] of this subchapter (relating to Early Intervention Specialist [(EIS)] and Service Coordinator, respectively).

[(1) Consultation means evaluation and development of staff knowledge, skills, and abilities in the context of case-specific problem solving.]

[(2) Record review means a review of documentation in child records to evaluate compliance with the requirements of this chapter, and quality, accuracy, and timeliness of documentation. It also includes feedback to staff to identify areas of strength and areas that need improvement.]

[(3) Observation means watching staff interactions with children and families to provide guidance and feedback and providing guidance and feedback about the observation.]

(g) [(f)] The subrecipient [ contractor] must follow all training requirements mandated [ defined] by HHSC ECI.

§350.312.Licensed Practitioner of the Healing Arts [(LPHA)].

(a) The LPHA participates in eligibility determination as part of the interdisciplinary team and provides necessary clinical knowledge for the IFSP team to plan and implement individualized services focused on helping families to support their children with attaining developmental goals [individualized, goal oriented services] within an interdisciplinary approach.

(b) The LPHA is responsible for:

(1) documenting [LPHA's responsibility is to document] the child's progress towards the IFSP goals; [outcomes,]

(2) recommending [recommend] to the team modifications to the plan as needed; [needed,] and

(3) providing assessments [provide re-assessments] or ongoing therapy services as planned on the IFSP.

(c) The [A] LPHA is required to sign the IFSP and in doing so acknowledges the planned services are reasonable and necessary.

(d) The LPHA must provide [provides] ongoing monitoring and assessment of the IFSP, at least once every six months as part of the periodic review, in order to provide a professional opinion as to the effectiveness of services.

§350.313.Early Intervention Specialist [(EIS)].

(a) The subrecipient [The contractor] must comply with HHSC ECI [the Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI)] requirements related to minimum qualifications for an EIS.

(1) An individual who meets one of the following criteria is eligible for EIS credentialing. [An EIS must meet one of the following criteria:]

(A) Be [be] registered as an EIS before September 1, 2011. [2011;]

(B) Hold [hold] a bachelor's or graduate degree from an accredited university with: [with a bachelor or graduate degree specialization in:]

(i) academic transcripts reflecting the successful completion of required coursework for an EIS, designated by HHSC ECI; or [early childhood development;]

(ii) three years of experience within the last ten years working for an IDEA Part C program in the United States or a United States territory providing special instruction, as defined in 34 CFR §303.13(b)(14), or SST, as defined in §350.501(a)(4) of this chapter (relating to Specialized Rehabilitative Services), to infants and toddlers with developmental delays or disabilities and their families.

[(ii) early care and early childhood;]

[(iii) early childhood special education; or]

[(iv) human development and family studies;]

(C) If an individual lacks some of the required coursework referenced in paragraph (1)(B)(i) of this subsection, they may complete applicable contact hours of continuing education:

(i) up to the maximum amount set by HHSC ECI; and

(ii) that meets HHSC ECI requirements.

[(C) hold a bachelor's or graduate degree from an accredited university in a field related to early childhood intervention. For each of the following fields, transcripts of degree coursework must reflect successful completion of at least nine semester course credit hours relevant to early childhood intervention and three semester course credit hours that focus on early childhood development or early childhood special education. Related fields include:]

[(i) psychology;]

[(ii) social work;]

[(iii) counseling;]

[(iv) special education (without early childhood emphasis); and]

[(v) sociology;]

[(D) hold a bachelor's or graduate degree from an accredited university in a field unrelated to early childhood intervention. For fields unrelated to early childhood intervention, transcripts of degree coursework must reflect successful completion of at least 15 semester course credit hours relevant to early childhood intervention and three semester course credit hours that focus on early childhood development or early childhood special education; or]

[(E) hold a bachelor's or graduate degree from an accredited university with three years of experience within the last ten years working for an Individuals with Disabilities Education Act, Part C program in the United States or a United States territory providing special instruction, as defined in 34 CFR §303.13(b)(14), or specialized skills training, as defined in §350.501(a)(4) of this chapter, to infants and toddlers with developmental delays or disabilities and their families.]

[(2) If an EIS has not completed three of the required hours of semester course credit relevant to early childhood intervention provided in paragraph (1)(C) and (D) of this subsection, the EIS must complete forty clock hours of continuing education that is relevant to early childhood intervention within three years prior to employment as an EIS. If the contractor hires an EIS who does not have the necessary hours, the EIS must complete these hours no more than 30 days after the EIS's hire date.]

[(3) If an EIS has not completed the required three hours of semester course credit in early childhood development or early childhood special education provided in paragraph (1)(C) and (D) of this subsection, the EIS must complete forty clock hours of continuing education in early childhood development or early childhood special education within three years prior to employment as an EIS. If the contractor hires an EIS who does not have the necessary hours, the EIS must complete these hours no more than 30 days after the EIS's hire date.]

[(4) Coursework or previous training in early childhood development or early childhood special education is required to ensure that an EIS understands the development of infants and toddlers because the provision of specialized skills training for which an EIS is solely responsible depends on significant knowledge of typical child development. Therefore, the content of the three hours of coursework described in paragraph (1)(C) and (D) of this subsection, and the forty clock hours of continuing education described in paragraph (2) of this subsection must relate to the growth, development, and education of the young child and may include courses or training in:]

[(A) child growth and development;]

[(B) child psychology;]

[(C) children with special needs; or]

[(D) typical language development.]

(b) The subrecipient must comply with HHSC ECI requirements related to initial credentialing for an EIS.

(1) An EIS must read and sign the EIS code of ethics prior to the creation of an employee record on the EIS Registry.

(2) An EIS must complete the current orientation to ECI training, as designated by HHSC ECI, and develop an IPDP with their supervisor within 30 days after the EIS's hire date.

(3) An EIS must complete the EIS IPDP no more than one year after their hire date.

(c) The subrecipient [(b) The contractor] must comply with HHSC ECI requirements related to the biennial renewal of the EIS credential. [continuing education for an EIS.]

(1) Every two years after obtaining the EIS credential, an [An] EIS must complete a minimum of:

(A) [(1) a minimum of] 20 contact hours of continuing professional education (CPE) that has been approved by their supervisor [approved continuing education every two years]; and

(B) [(2) an additional] three contact hours of CPE [continuing education] in ethics that has been approved by their supervisor. [every two years.]

(d) [(c)] The subrecipient [contractor] must comply with HHSC ECI requirements related to supervision of an EIS.

(1) The subrecipient [contractor] must provide supervision for an EIS [supervision] as defined in §350.309(f) [§350.309(e)] of this subchapter [chapter] (relating to Minimum Requirements for All Direct Service Staff) as required by HHSC ECI.

(2) An EIS supervisor must:

(A) have two years of experience providing ECI services, or two [2] years of experience supervising staff who provide ECI [other early childhood intervention] services to children and families; and

(B) meet the minimum requirements in subsection (a) of this section. [be an active EIS or hold a bachelor's degree or graduate degree from an accredited university with a specialization in:]

[(i) child development, special education, psychology, social work, sociology, nursing, rehabilitation counseling, human development, or related field; or]

[(ii) an unrelated field and have at least 18 hours of semester course credit in child development.]

(e) [(d)] Requirements for EIS active status, EIS past due status, [status] and EIS inactive status are as follows.

(1) Only an EIS with active status is allowed to provide ECI [early childhood intervention] services to children and families.

(2) An EIS on past due status or inactive status may not perform any ECI services. [activities requiring the EIS active status.]

(A) [(2)] An EIS goes on past due [inactive] status when:

(i) the EIS fails to complete initial credentialing or renewal activities by the designated due date; or

(ii) the EIS transfers from another ECI program and fails to complete the orientation to ECI within 30 days after their hire date, unless the EIS has documentation that they have completed the current orientation module.

[(A) the EIS fails to submit the required documentation by the designated deadline.]

[(i) Orientation to ECI training must be completed within 30 days, from the EIS's start date.

(ii) If an EIS is required to submit the clock hours described in subsection (a)(2) or (a)(3) of this section, the clock hours must be completed no more than 30 days after the EIS's hire date.]

[(iii) If an EIS is transferring from another program, the Orientation to ECI training must be completed within 30 days from the EIS's start date unless the EIS has documentation he or she has completed the current Orientation module.]

[(iv) All credentialing activities (Final Individualized Professional Development Plan) must be completed within one year from the EIS's start date.]

[(v) If, due to exceptional circumstances, an EIS is unable to submit documentation of completion of credentialing activities by the designated due date, the EIS's supervisor must contact the HHSC ECI EIS credentialing specialist as soon as he or she is aware the due date will not be met. The credentialing specialist and his or her supervisor will work with the EIS's supervisor and the EIS to determine an appropriate course of action.]

(B) An EIS goes on inactive status when the EIS is no longer employed by a subrecipient or has the EIS credential removed from their record in the Texas Kids Intervention Database System.

[(B) the EIS fails to submit documentation of required continuing education and ethics training by the designated deadline. An EIS may return to active status from inactive status by submitting the required documentation in accordance with subsection (b) of this section.]

(C) If, due to exceptional circumstances, an EIS is unable to submit documentation of completion of credentialing activities by the designated due date, the EIS's supervisor must contact the HHSC ECI EIS credentialing specialist as soon as he or she is aware the due date will not be met. The credentialing specialist and his or her supervisor will work with the EIS's supervisor and the EIS to determine an appropriate course of action.

[(C) the EIS is no longer employed by a contractor. An EIS may return to active status from inactive status by:]

[(i) submitting 10 contact hours of continuing education for each year of inactive status; and]

[(ii) submitting documentation of three contact hours of ethics training within the last two years.]

[(3) An EIS who has been on inactive status for longer than 48 months from his or her first missed continuing education submission date must complete all credentialing activities, including the current Orientation to ECI and EIS Individualized Personnel Development Plan.]

[(4) EIS active status is considered reinstated after the information is entered into the EIS Registry and is approved by HHSC ECI.]

[(e) The contractor must comply with HHSC ECI requirements related to ethics for an EIS. An EIS who violates any of the standards of conduct in §350.314 of this subchapter (relating to EIS Code of Ethics) is subject to the contractor's disciplinary procedures. Additionally, the contractor must complete an EIS Code of Ethics Incident Report in the EIS Registry.]

(f) Requirements for reinstating EIS active status are as follows.

(1) An EIS who has been on short-term past due status or short-term inactive status must submit the required contact hours of continuing professional education and ethics training for their missed renewal dates.

(2) An EIS who has been on long-term past due status or long-term inactive status must complete all initial credentialing activities in subsection (b) of this section.

(3) EIS active status is considered reinstated after the information is entered into the EIS Registry and is approved by HHSC ECI.

[(f) Contractors must contact the HHSC ECI state office when hiring a new EIS to verify if an EIS Code of Ethics Incident Report has been recorded in the EIS Registry.]

(g) The subrecipient must comply with HHSC ECI requirements related to ethics for an EIS.

(1) The subrecipient must establish and maintain disciplinary procedures that apply to all EISs upon violations of standards of conduct in §350.314 of this subchapter (relating to EIS Code of Ethics).

(2) An EIS who violates any of the standards of conduct is subject to the subrecipient's disciplinary procedures.

(3) The subrecipient must complete an EIS Code of Ethics Incident Report in the EIS Registry when an EIS violates any of the standards of conduct.

(h) Subrecipients must contact HHSC ECI when hiring a new EIS to verify if an EIS Code of Ethics Incident Report has been recorded in the EIS Registry.

§350.315.Service Coordinator.

(a) The subrecipient must [Early Childhood Intervention (ECI) case management may only be provided by an employee or subcontractor of an ECI contractor. The contractor must] comply with HHSC [the Texas Health and Human Services Commission (HHSC)] ECI requirements related to minimum qualifications for service coordinators.

(b) ECI service coordination, case management, and TCM as defined by §350.103 of this chapter (relating to Definitions) may only be provided by a service coordinator who is employed by or subcontracts with an ECI subrecipient.

(1) A service coordinator must meet one of the following criteria:

(A) be a licensed professional in a discipline relevant to early childhood intervention;

(B) be an EIS [Early Intervention Specialist (EIS)] or meet the qualifications for an EIS as defined in §350.313 of this subchapter (relating to Early Intervention Specialist); [subchapter;]

(C) be a registered nurse [Registered Nurse] (with a diploma, an associate's, bachelor's, or advanced degree) licensed by the Texas Board of Nursing; or

(D) hold a bachelor's degree or graduate degree from an accredited university with coursework that is relevant to ECI service coordination, as designated by HHSC ECI. [a specialization in:]

[(i) child development, special education, psychology, social work, sociology, nursing, rehabilitation counseling, or human development or a related field; or]

[(ii) an unrelated field with at least 18 hours of semester course credit in child development or human development.]

(2) Before performing service coordination, case management, or TCM [case management] activities, a service coordinator must complete HHSC ECI-required [ECI required] case management training and develop an IPDP with their supervisor. [that includes, at a minimum, content which results in:]

[(A) knowledge and understanding of the needs of infants and toddlers with disabilities and their families;]

[(B) knowledge of the Individuals with Disabilities Education Act, Part C;]

[(C) understanding of the scope of early childhood intervention services available under the early childhood intervention program and the medical assistance program; and]

[(D) understanding of other state and community resources and supports necessary to coordinate care.]

(3) A service coordinator must complete all assigned activities on the service coordinator's IPDP no more than one year after [Individualized Professional Development Plan within one year from] the service coordinator's start date.

(4) A service coordinator must effectively communicate in the family's native language or use an interpreter or translator.

(c) [(b)] A service coordinator who was employed as a service coordinator by a subrecipient [contractor] before March 1, 2012, [2012 ] and who does not meet the requirements of subsection (b)(1) [(a)(1)] of this section, [section ] may continue to serve as a service coordinator at the subrecipient's [contractor's] discretion.

(d) [(c)] The subrecipient [contractor] must comply with HHSC ECI requirements related to continuing education for service coordinators. A service coordinator must complete:

(1) three contact hours of training in ethics every two years;

(2) an additional three contact hours of training specifically relevant to case management every year; and

(3) if the service coordinator does not hold a current license or credential that requires continuing professional education, an additional seven contact hours of [approved] continuing education approved by their supervisor every year.

(e) [(d)] The subrecipient [contractor] must comply with HHSC ECI requirements related to supervision of service coordinators.

(1) A subrecipient's [contractor's] supervision of service coordinators must meet the requirements outlined in §350.309(f) [§350.309(e)] of this subchapter (relating to Minimum Requirements for All Direct Service Staff).

(2) An individual employed by or subcontracting with a subrecipient must meet the following criteria to supervise a service coordinator. [(2) A contractor's ECI program staff member who meets the following criteria is qualified to supervise a service coordinator:]

(A) A service coordinator supervisor must meet the minimum requirements in subsections (b) and (c) of this section. [has completed all service coordinator training as required in subsection (a)(2) and (a)(3) of this section;]

(B) A service coordinator supervisor must have two years of experience providing case management in an ECI program or another applicable community-based program. [has two years of experience providing case management in an ECI program or another applicable community-based organization; and]

[(C) is an active EIS or holds a bachelor's degree or graduate degree from an accredited university with a specialization in:]

[(i) child development, special education, psychology, social work, sociology, nursing, human development or a related field; or]

[(ii) an unrelated field with at least 18 hours of semester course credit in child development or human development.]

(f) [(e)] Requirements for service coordinator active status and inactive status are as follows.

(1) A service coordinator is on active [inactive ] status when all of the requirements in subsections (b) and (c) of this section have been approved by their [the service coordinator fails to complete required training activities by the designated deadlines in subsections (a) and (c) of this section. Service coordinator active status is reinstated after the required training activities are completed and approved by the service coordinator's] supervisor.

(2) A service coordinator goes on inactive status when: [is on inactive status when the service coordinator is no longer employed by a contractor.]

(A) the service coordinator fails to complete required training activities by the designated deadlines; or [(A) A service coordinator returns to active status when the service coordinator:]

[(i) is employed by an ECI program within 24 months or less from the last day of employment;]

[(ii) submits 10 clock hours of continuing education for every year of inactive status; and]

[(iii) submits documentation of three clock hours of ethics training completed within the last two years and not used to meet previous training requirements.]

(B) the service coordinator is no longer employed by or subcontracting with a subrecipient.

[(B) A service coordinator who has been on inactive status for longer than 24 months must complete the training requirements outlined in subsections (a)(2) and (a)(3) of this section.]

(3) If a service coordinator has been inactive for less than 48 months, active status is reinstated after the required training activities are completed and approved by the service coordinator's supervisor.

(4) A service coordinator who has been on inactive status for 48 months or longer must complete the training requirements outlined in subsections (b)(2) and (b)(3) of this section.

(g) [(f)] The subrecipient [contractor] must comply with HHSC ECI requirements related to ethics of service coordinators. Service coordinators must meet the established rules of conduct and ethics training required by their license or credential. A service coordinator who does not hold a license or credential must meet the rules of conduct and ethics established in §350.314 of this subchapter (relating to EIS Code of Ethics).

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 August 30, 2024.

TRD-202404085

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §§350.403 - 350.407, 350.411, 350.415

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.403.Definitions.

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

(1) Case management--In compliance with §350.405 of this subchapter (relating to Case Management Services), case management means services provided to assist an eligible child and their family in gaining access to the rights and procedural safeguards under IDEA Part C [the Individuals with Disabilities Education Act (IDEA), Part C,] and to needed medical, social, educational, developmental, and other appropriate services. Case management services may be provided via telehealth with the prior written consent of the parent. If the parent declines to consent to telehealth services, case management must still be provided.

[(2) Developmental disability--Children from birth to age three who have substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disabilities if services are not provided.]

(2) [(3)] Monitoring and assessment--Activities and contacts as described in §350.405 of this subchapter that are necessary to ensure that the IFSP, [individualized family service plan (IFSP),] as described in Subchapter J of this chapter (relating to Individualized Family Service Plan[(IFSP)]), is effectively implemented and that the planned services adequately address the needs of the child.

[(4) Service coordinator--An employee or person under the direction of an Early Childhood Intervention (ECI) contractor who meets the criteria described in Subchapter C of this chapter (relating to Staff Qualifications).]

[(5) Targeted case management--Case management activities that are reimbursable by Medicaid when provided to Medicaid-enrolled children who are eligible for ECI.]

(3) [(6)] Texas Health Steps--The name adopted by the state [State] of Texas for the federally mandated Early and Periodic Screening, Diagnosis, and Treatment [(EPSDT)] program.

§350.404.[Recipient] Eligibility for Early Childhood Intervention [(ECI)] Case Management Services.

To [In order to] receive ECI case management services, the child [recipient] must meet the criteria established in Subchapter H of this chapter (relating to Eligibility, Evaluation, and Assessment), [Eligibility), have an identified need for case management,] and the family must agree to receive services.

§350.405.Case Management Services.

(a) Case management services may be provided via telehealth with the prior written consent of the parent. If the parent declines to consent to telehealth services, case management must still be provided.

(b) [(a)] All case management activities must be documented in the child's record. Case management activities include: [Case management means services provided to assist an eligible child and their family in gaining access to the rights and procedural safeguards under IDEA Part C, and to needed medical, social, educational, developmental, and other appropriate services. Case management includes:]

(1) coordinating the performance of evaluations and assessments;

(2) facilitating and participating in the development, review, and evaluation of the IFSP [individualized family service plan] in accordance with Subchapter J of this chapter (relating to Individualized Family Service Plan); [Plan (IFSP)) which is based upon:]

[(A) the child's applicable history;]

[(B) the parent's input;]

[(C) input from others providing services and supports to the child and family; and]

[(D) the results of all evaluations and assessments;]

(3) supporting families to meet their needs by: [ assisting families in:]

(A) assisting families with identifying unmet needs;

(B) assisting families with identifying available providers of services and supports;

(C) making appropriate referrals and facilitating applications for services and supports; [application;] and

(D) assisting with initial and ongoing contact to obtain services from medical, social, and educational providers to address identified needs and achieve goals specified in the IFSP;

(4) following up with families and providers of services and supports to assist the child with timely access to services, and discussing [discuss] the status of referrals to determine whether [if] the services have met the child's identified needs, and whether [if] ongoing assistance to ensure continued access will be necessary;

(5) monitoring and assessment of the delivery [of] and effectiveness of services at least every six months after the IFSP is developed. This process must: [that:]

[(A) occurs at least once every six months, or more frequently as needed;]

(A) be [(B) is] individualized and clearly related to the needs of the child and family;

(B) collect [(C) collects] information from family members, ECI professionals, [service providers,] and other entities and individuals who provide services [service] or supports to the child and family to assess whether [if]:

(i) services are being provided in accordance with the child's IFSP;

(ii) services are adequate to meet the child's and family's needs;

(iii) all ECI professionals [service providers] are effectively collaborating to address the child's and family's needs; and

(iv) parents and routine caregivers are able to use the interventions being presented;

(6) adjusting the IFSP [and service arrangements] if new needs, ineffectiveness, or barriers to services are identified;

(7) assisting the parent or routine caregiver in advocating for the child;

(8) coordinating with medical and other health providers to ensure services are effective in meeting the child's and family's needs; and

(9) facilitating the child's transition to ECSE [preschool] or other appropriate community services and supports.

(c) [(b)] TCM is case management that meets the following criteria. [Medicaid reimbursement is available for the provision of targeted case management if the following criteria are met:]

(1) The [the] contact occurs with the parent or routine caregiver. [caregiver;]

(2) The [the] contact occurs face-to-face [face to face] or by telephone. [telephone;]

(3) Contacts made in one day total [the contact is of] at least eight minutes in duration. [duration;]

(4) The [the] desired outcome of the contact is of direct benefit to a child who is eligible for ECI services. [services; and]

(5) During [during] the contact the service coordinator performs a case management activity as described in subsection (a) of this section.

(d) [(c)] TCM must be offered to all families and documented in a child's record, regardless of the child's Medicaid enrollment. [Non-billable case management contacts must be documented in a child's record. These contacts occur when:]

(e) Case management activities not defined as TCM occur when the service coordinator performs a case management activity as defined in subsection (a) of this section; and

(1) the contact is with individuals other than a parent or routine caregiver;

(2) the desired outcome of the contact is not of direct benefit to a child who is eligible for ECI services; [and]

(3) the contact is less than eight minutes in duration; or

[(3) during the contact the service coordinator performs a case management activity as defined in subsection (a) of this section.]

(4) the contact does not occur face-to-face or by telephone.

§350.406.Parent Refusal.

(a) A parent may refuse case management provided by the subrecipient. [ECI contractor.] If the parent refuses case management activities, the service coordinator must:

(1) document the parent's choice in the child's record;

(2) provide the [IDEA Part C] required ECI services during the pre-enrollment period, including scheduling and coordinating screenings, evaluations, and assessments;

(3) coordinate the development, review, and evaluation of the IFSP, [Individualized Family Service Plan (IFSP),] including any reviews, revisions, and the annual IFSP; and

(4) provide and obtain all the accompanying required notices and consents.

(b) When the parent refuses case management services, the subrecipient [ECI contractor] must not submit a claim for TCM [case management] to Medicaid.

§350.407.Medicaid Service Limitations.

(a) Case management services are not reimbursable as Medicaid services when another payor is liable for payment or if case management services are associated with the proper and efficient administration of the Medicaid state plan.

(b) Case management services associated with the following are not payable as TCM [optional targeted case management] services under Medicaid:

(1) Medicaid eligibility determinations and redeterminations;

(2) Medicaid eligibility intake processing;

(3) Medicaid preadmission screening;

(4) prior authorization for Medicaid services;

(5) required Medicaid utilization review;

(6) Texas Health Steps program administration;

(7) Medicaid "lock-in" provided for under the Social Security Act [Act,] §1915(a);

(8) services that are an integral or inseparable part of another Medicaid service;

(9) outreach activities that are designed to locate individuals who are potentially eligible for Medicaid; and

(10) any medical evaluation, examination, or treatment billable as a distinct Medicaid-covered benefit. However, referral arrangements and staff consultation for such services are reimbursable as case management services.

§350.411.Assignment of Service Coordinator.

(a) ECI [Early Childhood Intervention (ECI)] case management services must be provided by service coordinators who meet the educational, training, and work experience requirements, commensurate with their job responsibilities, as specified in Subchapter C of this chapter (relating to Staff Qualifications).

(b) The subrecipient [ECI contractor] is responsible for:

(1) assigning one service coordinator for each eligible child and the child's family according to the following:

(A) an initial service coordinator must be assigned at the time of referral; and

(B) a new service coordinator may be assigned at the time the IFSP is developed or the original service coordinator may be retained; [retained, if appropriate;]

(2) ensuring that the service coordinator assigned by the subrecipient [ECI contractor] has a combination of education, training, and work experience relevant to the child's needs; and

(3) appointing a new service coordinator if requested by the parent.

§350.415.Documentation.

(a) The child's record must include:

(1) whether the parent has declined recommended services;

(2) the need for, and occurrences of, coordination with other service coordinators or case managers; and

(3) whether case management goals have been achieved.

(b) Documentation of each case management contact must include:

(1) name of the child;

(2) name of the ECI program; [Early Childhood Intervention contractor;]

(3) name and credential of the assigned service coordinator;

(4) date, start time, and duration of the contact;

(5) physical location of the service coordinator at the time of contact (e.g., office, child's home, hospital, daycare);

(6) method of service (face-to-face or telephone);

(7) with whom the contact was made (e.g., parent, routine caregiver, physician);

(8) a description of the case management activity performed as described in §350.405 of this subchapter (relating to Case Management Services);

(9) course of action to respond to identified needs;

(10) any relevant information provided by the family, or other individual or entity; and

(11) service coordinator's signature.

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 August 30, 2024.

TRD-202404086

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.501, §350.507

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.501.Specialized Rehabilitative Services.

(a) SRS, as defined by §350.103 of this chapter (relating to Definitions), includes [Specialized rehabilitative services are rehabilitative services that promote age-appropriate development by correcting deficits and teaching compensatory skills for deficits that directly result from medical, developmental, or other health-related conditions. Specialized rehabilitative services include] physical therapy, speech language pathology services, occupational therapy, and SST as defined in §350.103 of this chapter. [specialized skills training.]

(1) Physical therapy.

(A) Physical therapy services are defined in 34 CFR §303.13(b)(9).

(B) Physical therapy services must meet the requirements of subsection (b) of this section.

(C) Physical therapy services must be provided by a licensed physical therapist who meets the requirements of 42 CFR §440.110(a) and all other applicable state and federal laws or a licensed physical therapy assistant [(LPTA)] when the assistant is acting under the direction of a licensed physical therapist in accordance with 42 CFR §440.110 and all other applicable state and federal laws.

(2) Speech language pathology services.

(A) Speech language pathology services are defined in 34 CFR 303.13(b)(15).

(B) Speech language pathology [therapy] services must meet the requirements of subsection (b) of this section.

(C) Speech language pathology [therapy] services must be provided by:

(i) a licensed speech language pathologist (SLP) who meets the requirements of 42 CFR §440.110(c) and all other applicable state and federal laws;

(ii) a licensed assistant in SLP when the assistant is acting under the direction of a licensed SLP in accordance with 16 TAC §111.52 (relating to Assistant in Speech-Language Pathology License--Practice and Duties of Assistants) [42 CFR §440.110 ] and all other applicable state and federal laws; or

(iii) a licensed intern when the intern is acting under the direction of an SLP who is licensed [a qualified SLP] in accordance with 42 CFR §440.110 and all other applicable state and federal laws.

(3) ccupational therapy.

(A) Occupational therapy services are defined in 34 CFR §303.13(b)(8).

(B) Occupational therapy services must meet the requirements of subsection (b) of this section.

(C) Occupational therapy services must be provided by a licensed occupational therapist who meets the requirements of 42 CFR §440.110(b) and all other applicable state and federal laws or a certified occupational therapy assistant [(COTA)] when the assistant is acting under the direction of a licensed occupational therapist in accordance with 40 TAC §373.2 (relating to Supervision of a Temporary Licensee) [42 CFR §440.110] and all other applicable state and federal laws.

(4) Specialized Skills Training. [skills training.] As defined in §350.103 of this chapter, SST:

(A) [Specialized skills training seeks to reduce the child's functional limitations across developmental domains including, strengthening the child's cognitive skills, positive behaviors, and social interactions. (B) Specialized skills training] includes skills training and anticipatory guidance for family members or other routine caregivers to ensure effective treatment and to enhance the child's development; [development.]

(B) [(C) Specialized skills training] services must meet the requirements of subsection (b) of this section; and [section.]

(C) [(D) Specialized skills training] must be provided by an EIS on active status as defined in §350.313 of this chapter (relating to Early Intervention Specialist). [Specialist.]

(b) SRS [Specialized rehabilitative services] must:

(1) be designed to create learning environments and activities that promote the child's acquisition of skills in one or more of the following developmental areas: physical/motor, communication, adaptive, cognitive, and social/emotional;

(2) be provided in the child's natural environment, as defined in 34 CFR §303.26, unless the criteria listed in [at] 34 CFR §303.126 are met and documented in the case record; and [record and may be provided via telehealth with the prior written consent of the parent, and if the parent does not consent to telehealth services, will be provided in person;]

(3) meet the requirements of §350.1104 of this chapter (relating to Early Childhood Intervention Services Delivery). [Delivery); and]

[(4) be provided on an individual or group basis.]

[(c) In addition to the criteria in subsection (b) of this section, group services must meet the requirements as described in §350.1107 of this chapter (relating to Group Services for Children).]

(c) [(d)] Service authorization [Authorization].

(1) SRS [Specialized rehabilitative services] must be recommended by an interdisciplinary team that includes an LPHA. [a licensed practitioner of the healing arts]

(2) SRS must be [and be] documented in the child's IFSP [an Individualized Family Service Plan (IFSP)] in accordance with Subchapter J of this chapter (relating to Individualized Family Service Plan). [Plan (IFSP)).]

(3) [(2)] Services must be monitored by the interdisciplinary team as described in §350.1104 of this chapter.

[(e) Documentation. Documentation of each specialized rehabilitative services contact must meet the requirements in §350.1111 of this chapter (relating to Service Delivery Documentation Requirements).]

§350.507.Due Process.

(a) Medicaid-eligible individuals. Any Medicaid-eligible individual whose request for eligibility for SRS [specialized rehabilitative services] is denied by Medicaid, or is not acted upon with reasonable promptness, or whose specialized rehabilitative services have [has] been terminated, suspended, or reduced, is entitled to a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).

(b) All individuals. If an ECI program [Early Childhood Intervention contractor] denies, involuntarily reduces, or terminates SRS [specialized rehabilitative services] for an individual, the individual has the right [all rights] to file complaints, request mediation, or request a hearing in accordance with Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures) and in accordance with 40 TAC Chapter 101, Subchapter E, Division 3 (relating to Division for Early Childhood Intervention Services).

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

Filed with the Office of the Secretary of State on August 30, 2024.

TRD-202404087

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.601

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.601.Purpose.

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 August 30, 2024.

TRD-202404088

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.605.Definitions.

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

[(1) Central Directory--As described in 34 CFR §303.117.]

(1) [(2)] Public awareness [Awareness]--As described in 34 CFR §303.116 and §303.301.

(2) [(3)] Public outreach [Outreach]--The combined efforts of child find, public awareness, and interagency coordination.

§350.607.Public Outreach.

(a) The subrecipient [contractor] must plan and implement child find, public awareness, and interagency coordination goals and strategies that comply with [the Individuals with] IDEA Part C.

(b) When HHSC provides language to use in communicating with primary referral sources, parents of infants and toddlers, or the general public, the subrecipient [contractor] must use the provided language.

§350.609.Child Find.

(a) The subrecipient must document that it communicated any major HHSC ECI policy change concerning the information described in subsection (d) of this section to primary referral sources.

(b) [(a)] The purpose of child find efforts is to establish working relationships and effective communications [communicate effectively] with primary referral sources [in order] to support and promote the referral of [their referring] children potentially eligible for ECI services.

(c) [(b)] The subrecipient [contractor] must have written procedures that establish systems to:

(1) inform primary referral sources of the requirement to refer children suspected of having a developmental delay or a medical diagnosis with a high probability of resulting in a developmental delay in a timely manner as established in 34 CFR §303.303;

(2) accept referrals effectively; and

(3) monitor referral dates and sources.

(d) [(c)] The subrecipient [contractor] must document that primary referral sources listed in 34 CFR §303.303(c) have been provided current information on:

(1) ECI eligibility criteria and evaluation process; [criteria;]

(2) the ECI array of services;

(3) how to explain ECI services to the family, including the coaching approach and [service delivery to families, including] the family's role;

(4) how to make a referral to ECI;

(5) the importance of informing families when a referral is made; and

(6) the family cost share system of payments for ECI [early childhood intervention] services.

[(d) The contractor must document that any major HHSC ECI policy change concerning the types of information described in subsection (c) of this section is communicated to primary referral sources.]

§350.611.Public Awareness.

(a) The subrecipient must conduct public awareness activities to [purpose of public awareness efforts is to] increase recognition of ECI programs in the community so that families with children who are potentially eligible for ECI [early childhood intervention] services will access those services.

(b) The subrecipient [contractor] must document that families and the general public are provided current HHSC ECI materials on:

(1) ECI service delivery, including the family's role and the coaching model;

(2) eligibility criteria and the evaluation process;

(3) the ECI array of services;

(4) how to make a referral to ECI; and

(5) the family cost share system of payments for ECI [early childhood intervention] services.

(c) The ECI program [contractor's program] staff who conduct public awareness activities must be able to explain to families and the public the information listed in subsection (b) of this section.

(d) The subrecipient [contractor] must assist HHSC ECI as requested in public awareness activities, including informing families and their community of appropriate resources. [the HHSC ECI Central Directory.]

(e) The subrecipient [contractor] must establish and maintain ongoing relationships with public and private agencies that serve children and families in their community to:

(1) increase quality referrals for ECI services; and

(2) coordinate with community partners to increase access to resources and services for ECI children and families.

§350.613.Publications.

(a) The subrecipient [contractor] must maintain a current inventory of ECI publications and public outreach materials provided by HHSC ECI.

(b) Public outreach materials created by the subrecipient [contractor] must comply with graphics standards required by HHSC ECI. [the ECI Graphics Manual.]

§350.615.Interagency Coordination.

(a) The purpose of interagency coordination is to enhance the subrecipient's [contractor's] child find and public awareness efforts and to coordinate with community partners to increase access to resources and services for ECI children and families.

(b) The subrecipient [contractor] must comply with all child find and public outreach requirements in all state-level HHSC ECI MOUs with TEA, Head Start and Early Head Start, DFPS, and [memoranda of understanding (MOUs) with the Texas Education Agency (TEA), Head Start and Early Head Start, Texas Department of Family and Protective Services (DFPS), and] any other state agency with which HHSC ECI enters into a MOU.

(c) The subrecipient [contractor] must coordinate with LEA representatives to facilitate an effective transition from ECI to ECSE [public school special education] services and the LEA provision of services for children who are deaf or hard of hearing or blind or visually impaired. [auditory and visual impairment services.] Coordination activities focus on developing a joint understanding of:

(1) eligibility requirements for public school services, including for Part B services;

(2) the state-level MOUs with TEA; and

(3) if applicable, MOUs with the LEAs.

(d) The subrecipient [contractor] must coordinate with representatives from Head Start and Early Head Start to ensure that families eligible for Head Start and Early Head Start have access to those services, as available. Coordination activities focus on developing a joint understanding of:

(1) eligibility requirements for Head Start and Early Head Start placement;

(2) the state-level MOU with Head Start and Early Head Start;

(3) referral procedures; and

(4) if applicable, the local MOU with Head Start and Early Head Start.

(e) The subrecipient [contractor] must ensure [document] coordination of ECI services with local agencies, as required by 34 CFR §303.302 and other programs identified by HHSC ECI.

(f) The subrecipient [contractor] must maintain a current list of community resources for families that includes for each resource:

(1) services provided;

(2) contact information;

(3) referral procedures; and

(4) cost to families.

(g) The subrecipient [contractor] must document the reasonable efforts to mitigate any systemic issues with achieving the requirements of this section.

§350.617.Public Outreach Contact, Planning, and Evaluation.

(a) The subrecipient [contractor] must inform HHSC ECI of whom [the Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI) of the person] to contact within their office regarding public outreach efforts.

(b) The subrecipient [contractor] must establish goals, strategies, and activities to meet the requirements of this subchapter. The public outreach [This] strategic planning process must include the review and incorporation of any major HHSC ECI policy change concerning the types of information described in §350.609(d) [§350.609(b)] of this subchapter (relating to Child Find).

(c) The strategic planning process must be coordinated with other subrecipients [contractors] that share counties and primary referral sources.

(d) The public outreach strategic planning process must include an annual evaluation of the success of the subrecipient's [contractor's] public outreach efforts with a focus on the:

(1) number of children referred to the ECI program;

(2) percentage of children referred that are determined eligible for the program;

(3) percentage of children determined eligible that enroll in the program;

(4) referral source and eligibility type; and [data in paragraphs (1), (2), and (3) of this subsection broken down by age, race, and ethnicity at referral; referral source; and eligibility type; and]

(5) plans to address issues found in the evaluation of public outreach efforts.

(e) Data in subsections (d)(1), (d)(2), and (d)(3) of this section must be broken down by race, ethnicity, and age at referral.

(f) [(e)] The subrecipient [contractor] must be prepared to describe this strategic planning process and its outcomes to HHSC ECI upon request.

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 August 30, 2024.

TRD-202404090

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.701

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.701.Purpose.

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 August 30, 2024.

TRD-202404092

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.704.Referral Requirements.

(a) The subrecipient [contractor] must:

(1) accept referrals for children younger [less] than 36 months of age;

(2) document in the child's record the referral date, source, and reason for referral; and

(3) contact the family in a timely manner after receiving the referral.

(b) The subrecipient [contractor] must follow all requirements described in this chapter when a referral is received 45 days or more before the child's third birthday.

(c) When [In accordance with 34 CFR §303.209(b)(iii) and §108.1207(h) of this title (relating to Transition Planning), when] a referral is received less than 45 days before the child's third birthday, the subrecipient [contractor] is not required to conduct pre-enrollment procedures, an evaluation, an assessment, or an initial IFSP meeting. With [In accordance with 34 CFR §303.209, with] written parental consent, if the toddler is potentially eligible for ECSE [special education] services:

(1) the subrecipient [contractor] must notify the LEA; and

(2) HHSC coordinates the notification to the SEA. [State Education Agency.]

§350.706.Referrals Received While the Child is in the Hospital.

(a) In order to facilitate discharge planning and provide continuity of care, a subrecipient [contractor] may accept referrals for children who are residing in a hospital at the time of referral.

(b) If a referral is received for a child who has an adjusted age of zero months or younger [less] or who has a qualifying medical diagnosis, the subrecipient [contractor] may choose to determine eligibility and complete the initial IFSP [Individualized Family Service Plan (IFSP)] prior to the child's discharge from the hospital. The interdisciplinary team that determines eligibility and the IFSP team must include at least one ECI professional and a licensed or registered hospital professional who is familiar with the needs of the child and knowledgeable in the area or areas of concern.

(1) The [interdisciplinary team who determines eligibility may include a] licensed or registered hospital professional [professional, who] will serve as the LPHA [Licensed Practitioner of the Healing Arts (LPHA)] while the child is in the hospital. The LPHA on the IFSP team may participate by means other than face-to-face, [face to face,] if acceptable to the team and if the initial IFSP is conducted while the child is in the hospital.

(2) [The interdisciplinary team must include at least one Early Childhood Intervention professional and a licensed or registered hospital professional who is familiar with the needs of the child and knowledgeable in the area or areas of concern.] The participating licensed or registered hospital professional is not required to complete the orientation training required in §350.309(c) [§350.309(b)] of this chapter (relating to Minimum Requirements for All Direct Service Staff). Allowable licensed or registered hospital professionals include:

(A) licensed physician;

(B) registered nurse;

(C) licensed physical therapist;

(D) licensed occupational therapist;

(E) licensed speech language pathologist;

(F) licensed dietitian;

(G) licensed audiologist;

(H) licensed physician assistant;

(I) licensed intern in speech language pathology; or

(J) advanced practice registered nurse. §350.707.Child Referred with an Out-of-State Individualized Family Service Plan [IFSP].

(a) When a child moves to Texas with a completed IFSP from another state, eligibility for Texas ECI [early childhood intervention] services must be determined in accordance with Subchapter H of this chapter (relating to Eligibility, Evaluation, and Assessment).

(b) The interdisciplinary team considers existing evaluation data and medical diagnoses, as documented on the out-of-state IFSP, as appropriate.

(c) ECI [Early childhood intervention] services in Texas must be planned in accordance with Subchapter J of this chapter (relating to Individualized Family Service Plan [(IFSP) ]) and delivered in accordance with Subchapter K of this chapter (relating to Service Delivery).

§350.708.Pre-Enrollment Activities.

(a) Pre-enrollment begins at the point of referral, includes the following activities, and ends when the parent signs the IFSP [Individualized Family Service Plan (IFSP)] or a final disposition is reached.

(1) The subrecipient [contractor] must assign an initial service coordinator for the family and document the name of the service coordinator in the child's record.

(2) The subrecipient [contractor] must provide the family the HHSC ECI [Texas Health and Human Services Commission Early Childhood Intervention] Parent Handbook and document in the child's record that the following were explained to the parent:

(A) the family's rights regarding eligibility determination and enrollment;

(B) the early childhood intervention process for determining eligibility and enrollment; and

(C) the types of ECI [early childhood intervention] services that may be delivered to the child and the manner in which they may be provided.

(3) The subrecipient [contractor] must provide pre-IFSP service coordination as defined in 34 CFR §303.13(b)(11) and §303.34.

(4) The subrecipient [contractor] must collect information on the child throughout the pre-enrollment process.

(5) The subrecipient [contractor] must assist the child and family in gaining access to the evaluation and assessment process, including:

(A) scheduling the interdisciplinary initial evaluation and assessment; and

(B) preparing the family for the evaluation and assessment process.

(6) The subrecipient [contractor] must comply with all requirements in Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures).

(b) The subrecipient [contractor] must explain to the family, before eligibility determination, the requirement to provide ECI [early childhood intervention] services in the natural environment.

(c) The subrecipient [contractor] must determine the need for and appoint a surrogate parent in accordance with 34 CFR §303.422 and §350.213 of this chapter (relating to Surrogate Parents).

§350.709.Optional Developmental Screenings.

(a) Optional developmental screenings are [Developmental screening is] done to determine the need for further evaluation. When a developmental screening is completed, the subrecipient [A contractor] must:

(1) use an HHSC ECI-approved screening tool; [tools that are approved by HHSC ECI;] and

(2) train providers to administer the selected screening tool [administering the tool] according to the requirements of [parameters required by] the selected tool.

(b) A parent has the right to request at any time:

(1) a comprehensive evaluation after a developmental screening; [screening] or

(2) a comprehensive evaluation instead of a developmental screening. [screening at any time.]

(c) If the results of a child's developmental screening do not indicate a concern, the subrecipient [a contractor] must:

(1) provide written documentation to the parent that further evaluation is not recommended;

(2) offer the parent a comprehensive evaluation; and

(3) conduct a comprehensive evaluation if requested by the parent.

(d) In accordance with the MOU between HHSC ECI and DFPS, the subrecipient must coordinate with DFPS [A contractor must coordinate with the Texas Department of Family and Protective Services (DFPS)] to accept a referral for a child under 36 months of age who is: [is involved in a substantiated case of child abuse or neglect, affected by illegal substance abuse or withdrawal symptoms resulting from prenatal drug exposure, or suspected of having a disability or developmental delay.]

(1) involved in a substantiated case of child abuse or neglect;

(2) suspected to have a disability or developmental delay; or

(3) identified as affected by substance abuse or withdrawal symptoms resulting from prenatal drug exposure or a Fetal Alcohol Spectrum Disorder (FASD).

(e) Requirements for optional developmental screenings or comprehensive evaluations for a child who meets the criteria in subsection (d) of this section are as follows.

(1) If the subrecipient receives a completed developmental screening from a health care provider for a child who is in DFPS conservatorship that indicates the child has a developmental delay, the subrecipient must offer a comprehensive evaluation to determine eligibility for ECI services. [A child in DFPS conservatorship. A contractor must offer a comprehensive evaluation to determine eligibility for early childhood intervention services when the contractor receives a completed developmental screening from a health care provider indicating the child has a developmental delay.]

(2) If the subrecipient receives a referral for a child who meets one of the criteria in subsection (d) of this section, the subrecipient must offer either a developmental screening or proceed directly to comprehensive evaluation.

[(2) A child not in DFPS conservatorship who is involved in a substantiated case of abuse or neglect. A contractor must offer either a developmental screening or proceed directly to a comprehensive evaluation.]

(3) If the subrecipient receives a referral for a child who does not meet one of the criteria in subsection (d) of this section, the subrecipient follows their local procedures for accepting a referral, conducting a developmental screening, and completing an evaluation.

[(3) A child affected by illegal substance abuse or withdrawal symptoms from prenatal drug exposure. A contractor must offer either a developmental screening or proceed directly to comprehensive evaluation.]

[(4) A child suspected of having a disability or developmental delay. A contractor follows their local procedures for accepting a referral, conducting a developmental screening, and completing an evaluation unless the child meets one of the criteria in paragraphs (1) - (3) of this subsection.]

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 August 30, 2024.

TRD-202404093

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.801

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.801.Purpose.

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 August 30, 2024.

TRD-202404094

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.805.Definitions.

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

(1) Adjusted age [Age]--The chronological age of a child minus the number of weeks or months of prematurity.

(2) Chronological age--The actual number of months and years a person has lived calculated from the date of birth to the present date.

§350.807.Eligibility.

(a) The subrecipient must ensure requirements in 34 CFR §303.321(a)(1) are met.

(b) [(a)] The subrecipient [contractor] must determine that a child meets Texas eligibility requirements [in order] to provide ECI [early childhood intervention] services to the child and family.

(c) [(b)] Subrecipients must [Contractors shall] apply the same eligibility criteria for all children residing in Texas.

[(c) The contractor must establish a system of management oversight to ensure consistent eligibility determination.]

(d) If a child is determined eligible in one area of Texas, the child remains eligible if the family moves to another part of the state until the child's annual evaluation is due.

(e) [(d)] The subrecipient [ contractor] must comply with all requirements in Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures) when determining eligibility.

(f) The subrecipient must provide prior written notice in accordance with §350.204 of this chapter (relating to Prior Written Notice) to the parent if a child is determined to be ineligible for ECI services.

§350.809.Initial Eligibility Criteria.

(a) A child must be younger than [under] 36 months of age and meet initial eligibility criteria to receive ECI [early childhood intervention] services. Initial eligibility is established by:

(1) documentation of a medically diagnosed condition that has a high probability of resulting in developmental delay;

(2) meeting the TEA definition of deaf or hard of hearing or criteria for a visual impairment provided in [an auditory or visual impairment as defined by the Texas Education Agency rule at] 19 TAC §89.1040 (relating to Eligibility Criteria); or

(3) a developmental delay, which[delay. Each developmental area] must be evaluated as described [defined] in 34 CFR §303.321 and the [§303.321. Developmental] delay is determined based on:

(A) an evaluation using a standardized tool designated by HHSC ECI that indicates a delay of at least 25 percent in one or more of the following developmental areas:

(i) communication;

(ii) cognitive;

(iii) gross motor;

(iv) fine motor;

(v) social emotional; or

(vi) adaptive; [or]

(B) an evaluation using a standardized tool designated by HHSC ECI that indicates a delay of at least 33 percent if the child's only delay is in expressive communication; [language;] or

(C) a qualitative determination of delay, as defined in §350.821 of this subchapter (relating to Qualitative Determination of Developmental Delay). [indicated by responses or patterns that are disordered or qualitatively different from what is expected for the child's age, and significantly interfere with the child's ability to function in the environment. When the interdisciplinary team determines there is evidence that the results of the standardized tool do not accurately reflect the child's development, eligibility must be established using a supplemental protocol designated by HHSC ECI.]

(b) A child must meet the same eligibility standards in subsection (a)(3)(A) or (a)(3)(B) [subparagraph (A) or (B)] of this section [this paragraph] on the designated tool to qualify for a qualitative determination of delay unless the child has an adjusted age or chronological age of under three [3] months.

§350.811.Qualifying Medical Diagnosis. [Eligibility Determination Based on Medically Diagnosed Condition That Has a High Probability of Resulting in Developmental Delay]

(a) The interdisciplinary team must review medical documentation to determine eligibility for a child who has a qualifying medical diagnosis. The subrecipient must maintain documentation reviewed for this purpose in the child's record. [To determine eligibility for a child who has a qualifying medical diagnosis the interdisciplinary team must review medical documentation to determine initial eligibility.]

(1) Qualifying medical diagnoses are approved by the HHSC Director of ECI based on prevailing medical opinion that the diagnoses have a high probability of resulting in developmental delay.

(2) HHSC ECI maintains a searchable database of qualifying medical diagnoses that is made available to the public. HHSC ECI will notify subrecipients and the public when changes to the database are made.

[(b) The Texas Health and Human Services Commission (HHSC) Director of Early Childhood Intervention approves the list of qualifying medical conditions based on prevailing medical opinion that the diagnoses have a high probability of resulting in developmental delay. Copies of the list of medically qualifying diagnoses can be obtained from HHSC.]

(b) [(c)] If a review of the child's records indicates that the child has a qualifying medical diagnosis, [condition,] the interdisciplinary team must determine and document a need for ECI [early childhood intervention ] services as required in §350.837 of this chapter (relating to Needs Assessment).

§350.813.Deaf or Hard of Hearing. [Determination of Hearing and Auditory Status]

(a) The interdisciplinary team may not determine a child ineligible if the child is suspected or confirmed to be deaf or hard of hearing until all evaluations, examinations, and assessments required in this section have been completed and reviewed by the interdisciplinary team, including the appropriate LEA staff.

(b) [(a)] As part of the evaluation to determine eligibility, the interdisciplinary team must determine any need for further hearing assessment by analyzing risk factors and evaluation results. [This determination is completed by reviewing the current hearing and auditory status for every child through an analysis of evaluation protocol results. A screening tool may be used for a child who is eligible based on a medical diagnosis or vision impairment.]

(c) A hearing screening tool may be used when an evaluation tool is not administered for a child who is eligible based on a medical diagnosis or a child who meets the criteria of having a visual impairment as defined by 19 TAC §89.1040 (relating to Eligibility Criteria).

(d) [(b)] The subrecipient [ contractor] must refer the [a] child to a licensed audiologist if the child has been identified as having a need for further hearing assessment and the child has not had a hearing assessment within the six months prior to identifying the need. [of the hearing needs identification.]

(1) If necessary to access a licensed audiologist, the subrecipient [contractor] may refer the child to the child's [their] primary health care provider.

(2) The referral must be made:

(A) [(1)] within five working days; and

(B) [(2)] with parental consent.

(e) [(c)] If the subrecipient [contractor] receives an audiological assessment that indicates the child is deaf or hard of hearing, the subrecipient [has an auditory impairment, the contractor] must respond as follows.

(1) With written parental consent consistent with §350.207 of this chapter (relating to Parental Consent), refer the child for an otological examination.

(A) The referral must be made to:

(i) an otologist;

(ii) an otolaryngologist; or

(iii) an otorhinolaryngologist.

(B) If one of the professionals listed in subsection (e)(1) of this section is not available, any licensed medical physician may complete the otological examination. The child's record must include documentation that an otologist, an otolaryngologist, or an otorhinolaryngologist was not available to complete the examination.

[(1) The contractor must, within five business days, make a referral to the LEA to participate in the eligibility determination process as part of the interdisciplinary team, and with written parental consent, complete the communication evaluation. The contractor must refer to the LEA any child who uses amplification.]

(2) Within five business days after the audiological assessment is received, make a referral to the LEA to participate in eligibility determination as part of the interdisciplinary team. Per 20 USC §1232g(b), parental consent is not required for this referral, but the parent must be notified that the referral is being made.

[(2) With prior written parental consent, the contractor must refer the child to an otologist, an otolaryngologist, or an otorhinolaryngologist for an otological examination. An otological examination may be completed by any licensed medical physician when an otologist is not available. The child's record must include documentation that an otologist, an otolaryngologist, or an otorhinolaryngologist was not available to complete the examination.]

(f) The subrecipient must refer any child who uses amplification to the LEA.

(g) The Certified Teacher of the Deaf and Hard of Hearing from the LEA participates in the eligibility determination process as part of the interdisciplinary team and, with written parental consent, completes the communication evaluation.

§350.815.Blindness or Visual Impairment. [Determination of Vision Status]

(a) The interdisciplinary team may not determine a child ineligible if the child is suspected or confirmed to be blind or visually impaired until all evaluations, examinations, and assessments required in this section have been completed and reviewed by the interdisciplinary team, including the appropriate LEA staff.

(b) [(a)] As part of the evaluation to determine eligibility, the interdisciplinary team must determine any need for further vision assessment by analyzing risk factors and evaluation results. [This determination is completed by reviewing the current vision status for every child through an analysis of evaluation protocol results. A screening tool may be used for a child who is eligible based on a medical diagnosis or hearing impairment.]

(c) A vision screening tool may be used when an evaluation tool is not administered for a child who is eligible based on a qualifying medical diagnosis or because the child meets the definition of deaf or hard of hearing in 19 TAC §89.1040 (relating to Eligibility Criteria).

(d) [(b)] The subrecipient [contractor] must refer the [a] child to an ophthalmologist or optometrist if the child has been identified as having a need for further vision assessment and the child has not had a vision assessment within the nine months prior to identifying the need. [of the vision needs identification.]

(1) If necessary to access an ophthalmologist or optometrist, the subrecipient [contractor] may refer the child to the child's [their] primary health care provider. The referral must be made:

(A) [(1)] within five working days; and

(B) [(2)] with parental consent.

(e) [(c)] If the subrecipient [contractor] receives a medical eye examination report that indicates the child is blind or visually impaired, the subrecipient must, within five business days[vision impairment, the contractor must within five business days] of receiving the report:

(1) with written parental consent consistent with §350.207 of this chapter (relating to Parental Consent), refer the child to the local office of the Health and Human Services Blind Children's Vocational Discovery and Development Program; and [refer the child to the LEA; and]

(2) refer the child to the LEA using a form containing elements required by TEA completed by an ophthalmologist or an optometrist, or a medical physician when an ophthalmologist or optometrist is not available. Per 20 USC §1232g(b), parental consent is not required for this referral, but the parent must be notified that the referral is being made. [with prior written consent, refer the child to the local office of the HHS Blind Children's Vocational Discovery and Development Program (BCVDDP).]

[(d) The referral to the LEA must be accompanied by a form containing elements required by the Texas Education Agency completed by an ophthalmologist or an optometrist, or a medical physician when an ophthalmologist or optometrist is not available.]

§350.817.Developmental Delay. [Eligibility Determination Based on Developmental Delay]

(a) The subrecipient [contractor] must:

(1) comply with all requirements in 34 CFR §303.321(b);

(2) maintain all test protocols and other documentation used to determine eligibility and continuing eligibility in the child's record; and

[(3) provide prior written notice to the parent when the child is determined to be ineligible for early childhood intervention services; and]

(3) [(4)] ensure that all evaluations are conducted by qualified personnel.

(b) The subrecipient must ensure evaluations to determine initial and continuing eligibility based on developmental delay, as defined in §350.809 of this subchapter (relating to Initial Eligibility Criteria), are conducted by at least two professionals from different disciplines with participation by the parent. [parent and at least two professionals from different disciplines must conduct the evaluation to determine initial and continuing eligibility based on developmental delay as defined by §350.809(3) of this chapter (relating to Initial Eligibility Criteria).]

(1) An LPHA [A Licensed Practitioner of the Healing Arts] must be one of the two professionals.

(2) Service coordination is not considered a discipline for evaluation.

(3) The evaluation procedures must include:

(A) [(1)] administration of a [the] standardized tool designated by HHSC ECI; [the Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI);]

(B) [(2)] taking the child's history, including interviewing the parent;

(C) [(3)] identifying the child's level of functioning in each of the developmental areas in 34 CFR §303.21(a)(1);

(D) [(4)] gathering information from other sources such as family members, other caregivers, medical providers, social workers, and educators, if necessary, to understand the full scope of the child's unique strengths and needs;

(E) [(5)] reviewing medical, educational, and other records;

(F) [(6)] in addition to requirements in 34 CFR §303.321(b), determining the most appropriate setting, circumstances, time of day, and participants for the evaluation [in order] to capture the most accurate picture of the child's ability to function in his or her natural environment; and

(G) [(7)] interpreting scores and determining delay through the application of informed clinical opinion to test results.

(4) When a child's chronological or adjusted age is zero months or younger, use of the standardized tool or another protocol is not required. While the interdisciplinary team does not need to administer the standardized tool or protocol, the interdisciplinary team must complete a qualitative determination of developmental delay as described in §350.821 of this subchapter (relating to Qualitative Determination of Developmental Delay).

(c) The subrecipient [contractor] must consider other evaluations and assessments performed by outside entities when requested by the family.

(1) The subrecipient [contractor] must determine whether outside evaluations and assessments:

(A) are consistent with HHSC ECI policies;

(B) reflect the child's current status; and

(C) have implications for IFSP [Individualized Family Service Plan] development.

(2) The subrecipient [If the family does not allow full access to those records or to those entities or does not consent to or does not cooperate in evaluations or assessments to verify their findings, the contractor] may discount or disregard [the other] evaluations and assessments performed by outside entities if the family:[.]

(A) does not allow full access to those records or entities;

(B) does not consent to evaluations or assessments; or

(C) does not cooperate in evaluations or assessments to verify their findings.

§350.821.Qualitative Determination of Developmental Delay.

Qualitative determination of developmental delay [Determination of Developmental Delay] is applied as described in this section. [section:]

(1) Qualitative determination of developmental delay may only be used at initial eligibility determination.

(2) [(1)] When a child's adjusted age or chronological age is zero months or younger, [ 0 months,] administration of the standardized tool or another protocol is not required.

(3) The interdisciplinary team, which must include an LPHA who is knowledgeable in the area of concern, must document: [describe]

(A) clinical findings; [findings ] and

(B) how those findings significantly interfere with the child's functional abilities.

(4) [(2)] When the evaluation results for a child, whose adjusted age or chronological age is greater than zero months, [results, which are measured using the standardized tool designated by HHSC ECI,] do not accurately reflect the child's development or ability to function in the natural environment, the interdisciplinary team must: [team, documents this information in the child's record and proceeds to a qualitative determination of developmental delay.]

(A) document this information in the child's record; and

(B) proceed to a qualitative determination of developmental delay, which must be made by a team that includes an LPHA knowledgeable in the area of concern.

(i) [(A)] For a child with an adjusted or chronological age [of] greater than zero [0] months but less than three [3] months, the interdisciplinary team [team, which must include an LPHA knowledgeable in the area of concern,] qualitatively determines developmental delay by describing clinical findings and how those findings significantly interfere with the child's functional abilities.

(ii) [(B)] For a child with an adjusted or chronological age of at least three [3] months, the interdisciplinary team [team, which must include an LPHA knowledgeable in the area of concern,] must use the supplemental protocol designated by HHSC ECI to qualitatively determine developmental delay. The developmental domains and sub-domains that can be used for qualitative determination of delay are established by HHSC ECI.

§350.823.Continuing Eligibility Criteria.

(a) The subrecipient [contractor] must determine the child's eligibility for continued ECI [early childhood intervention] services at least annually if the child is younger than 21 months of age at the previous eligibility determination. A child who is determined eligible at 21 months of age or older remains eligible for ECI [Early Childhood Intervention (ECI)] until the child's third birthday or until the child has reached developmental proficiency, whichever happens first.

(b) The subrecipient [contractor] must comply with all requirements in 34 CFR §303.321(a)(3). [§303.321(a)(3), including ensuring that informed clinical opinion may be used as an independent basis to establish a child's continued eligibility.]

(1) Continuing eligibility is based on one of the following:

(A) a qualifying medical diagnosis confirmed by a review of the child's medical records with:

(i) interdisciplinary team documentation of the continued need for ECI [early childhood intervention] services; and

(ii) documentation in the child's record of any change in medical diagnosis;

(B) meeting the TEA definition of deaf or hard of hearing or criteria for a visual impairment documented [a visual impairment or deafness or hard of hearing as defined by the Texas Education Agency] in 19 TAC §89.1040 (relating to Eligibility Criteria) with:

(i) interdisciplinary team documentation of the continued need for ECI services including the appropriate certified teacher or teachers from the LEA as specified in §350.813 and §350.815 of this subchapter (relating to Deaf or Hard of Hearing and Blindness or Visual Impairment, respectively); [early childhood intervention services;] and

(ii) documentation in the child's record of any change in hearing or vision status; or

(C) a developmental delay determined by the administration of the standardized tool designated by HHSC [the Texas Health and Human Services Commission (HHSC)] ECI, with the child demonstrating a documented delay of at least 15 percent in one or more areas of development, including the use of adjusted age as specified in §350.819 of this subchapter (relating to Age Adjustment for Children Born Prematurely), as applicable.

(2) If a child's initial eligibility is based on a qualitative determination of developmental delay, the subrecipient must re-determine eligibility using the criteria in subsection (b)(1) of this section no more than six months after initial eligibility is determined. [Continuing eligibility for a child whose initial eligibility was based on a qualitative determination of developmental delay must be determined after six months.]

[(A) Eligibility is re-determined through an evaluation using the standardized tool designated by HHSC ECI.]

[(B) The child must demonstrate a documented delay of at least 15 percent in one or more areas of development. If applicable, use adjusted age as specified in §350.819 of this subchapter.]

(c) If the parent fails to consent or fails to cooperate in re-determination of eligibility, the child becomes ineligible. The subrecipient [contractor] must provide [send] prior written notice of ineligibility and consequent discontinuation of all ECI services to the family at least 14 days before the subrecipient [contractor] discharges the child from the program, unless the parent:

(1) immediately consents to and cooperates in all necessary evaluations and assessments; and

(2) consents to all or part of a new IFSP. [Individualized Family Service Plan.]

(d) The family has the right to oppose the actions described in subsection (c) of this section using their procedural safeguards including the rights to use local and state complaint processes, request mediation, or request an administrative hearing in accordance with 40 TAC §101.1107 (relating to Administrative Hearings Concerning Individual Child Rights).

§350.825.Eligibility Statement.

(a) The interdisciplinary team must document eligibility decisions regarding a child on an eligibility statement containing the elements required by HHSC ECI.

(b) The eligibility statement must document the eligibility criteria that applies to the child. Only one of the following eligibility types may be listed on the eligibility statement:

(1) a [medically] qualifying medical diagnosis; [diagnosis, a qualifying auditory or visual impairment, or]

(2) meeting the criteria for deaf or hard of hearing or a visual impairment as defined by the TEA; or

(3) completion of the elements required by HHSC ECI for a determination of developmental delay.

(c) The eligibility statement must be:

(1) completed for every child evaluated;

(2) maintained in the child's record; and

(3) updated when eligibility is re-determined.

[(d) Only one eligibility type may be listed on the eligibility statement:]

[(1) medical diagnosis;]

[(2) vision or hearing impairment as defined by the Texas Education Agency; or]

[(3) developmental delay.]

(d) [(e)] The eligibility statement is valid:

(1) for 12 [twelve] months if the child is younger than 21 months of age when eligibility is determined;

(2) until the child's third birthday for a child whose eligibility was determined at 21 months of age or older; or

(3) for six months from the initial eligibility determination if eligibility was based on a qualitative determination of developmental delay.

(e) [(f)] If new information about additional qualifying criteria is discovered, the new information is documented in the child's record. The eligibility statement does not need to be changed or updated until eligibility is re-determined.

§350.829.Review of Nutrition Status.

(a) The interdisciplinary team must complete a review of the child's nutrition status by any of the following methods no later than 28 days after the initial IFSP is developed: [development through any of the following:]

(1) a review of the child's medical records;

(2) a review of the child's nutrition evaluation;

(3) a review of a doctor's physical examination for the child;

(4) a review of a nurses' evaluation for the child;

(5) a thorough discussion of family routines; or

(6) a review of nutrition risk factors. [completion of HHSC ECI nutrition screening.]

(b) The service coordinator must refer the child to a registered dietician if nutrition [nutritional] needs are identified.

§350.833.Autism Screening.

(a) Autism screening is not required if the child has been screened for autism spectrum disorder by another entity or has been identified as having autism spectrum disorder.

(b) The subrecipient [contractor] does not diagnose autism spectrum disorder.

(c) If an enrolled child is 18 months or older, the interdisciplinary team must determine if the child:

(1) has a family history of autism spectrum disorder;

(2) has lost previously acquired communication [speech] or social skills; or

(3) exhibits a language or cognitive delay or unusual communication patterns combined with a social, emotional, [emotional] or behavioral concern, including repetitive or stereotypicalbehaviors.

(d) If the interdisciplinary team identifies any of the issues in subsection (c) of this section, a member of the team must explain to the family the importance of early screening for autism spectrum disorder. [must:]

(e) The subrecipient must obtain written parental consent to refer the child to their licensed health care provider to complete the Modified Checklist for Autism in Toddlers Revised (M-CHAT-R) and the follow-up interview, if appropriate.

(f) If the child is not screened by the child's licensed health care provider or the subrecipient is unable to receive the screening from the child's licensed health care provider in a timely manner, the subrecipient must obtain written parental consent to:

(1) complete the M-CHAT-R; and

[(1) explain to the family the importance of early screening for autism;]

(2) complete the M-CHAT-R follow-up interview for a child who does not pass the M-CHAT-R screening.

[(2) request and obtain written consent for the screening;]

[(3) complete the Modified Checklist for Autism in Toddlers Revised (M-CHAT-R) if the child is not screened by the child's licensed health care provider or is unable to receive the screening from the child's licensed health care provider in a timely manner; and]

[(4) complete the M-CHAT-R follow-up interview for a child who does not pass the M-CHAT-R screening.]

(g) [(e)] The subrecipient [contractor] must make appropriate referrals if needs are identified. Appropriate referrals may [This could] include:

(1) a referral to appropriate clinicians for a child who does not pass both the M-CHAT-R and the follow-up interview; and

(2) the provision of case management to assist the parent with having an autism spectrum disorder screening done by the child's licensed health care provider if they do not consent to a screening by the subrecipient. [contractor.]

(h) [(f)] The use of the M-CHAT-R screening does not take the place of the appropriate evaluation of the child required under this subchapter.

§350.835.Subrecipient [Contractor] Oversight.

Subrecipients [Contractors] must have internal written procedures that establish a system of clinical oversight for eligibility determination. Clinical oversight, which is conducted by a person with knowledge of evaluation and assessment of young children, includes ensuring that:

(1) HHSC ECI eligibility criteria is applied consistently to all children who are evaluated;

(2) testing is administered and scored accurately according to the requirements of the selected tool designated by HHSC ECI;

(3) evaluations to determine eligibility are comprehensive;

(4) test scores are interpreted and determination of delay includes the application of informed clinical opinion; and

(5) eligibility decisions are fully documented in:

(A) the eligibility statement; and

(B) progress note or evaluation report.

§350.837.Needs Assessment.

(a) The IFSP team, which includes the service coordinator, must conduct a comprehensive needs assessment initially and annually as part of the IFSP process. The comprehensive needs assessment must include: [identify and document:]

(1) an assessment of the child; and [the needs of the child in each developmental area as listed in 34 CFR 303.21(a)(1), including those identified through the evaluation and observation;]

(2) a family-directed assessment. [the family's concerns regarding their child's development and the supports and services necessary to enhance the family's capacity to meet the developmental needs of their child;]

[(3) the functional abilities and unique strengths of the child; and]

[(4) the family's description of their resources, concerns, and priorities related to enhancing the child's development.]

(b) The assessment of the child must include:

(1) a review of the results of the child's evaluation;

(2) personal observations of the child; [and]

(3) the functional abilities and unique strengths of the child; and

(4) [(3)] the identification of the child's needs in each of the developmental areas listed in 34 CFR §303.21(a)(1).

(c) The subrecipient [contractor] must offer to conduct a family-directed assessment and comply with requirements in 34 CFR §303.321(c). [§303.321(c) (relating to Procedures for assessment of the child and family) to identify the family's resources, priorities, and concerns and the supports and services necessary to enhance the family's capacity to meet the developmental needs of the child.] The family-directed assessment must:

(1) be voluntary on the part of each family member participating in the assessment; [and]

(2) be based on information obtained through the assessment as well as [tool and also] through an interview with those family members participating in the assessment; and [assessment.]

(3) identify the family's resources, priorities, and concerns, as well as the supports and services necessary to enhance the family's capacity to meet the developmental needs of the child.

(d) The IFSP team [Providers] must assess and document the child's progress and needs of the family on an ongoing basis.

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 August 30, 2024.

TRD-202404095

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.1001

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1001.Purpose.

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 August 30, 2024.

TRD-202404096

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1003.Definitions.

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

(1) Frequency--The number of days or sessions that a service will be provided within a specified period of time.

(2) Functional ability [Ability]--A child's ability to carry out meaningful behaviors in the context of everyday living, through skills that integrate development across domains.

(3) IFSP goals [Goals]--Statements of the measurable results that the family wants to see for their child or themselves.

(4) Intensity--The length of time a service is provided during a session expressed as a specific amount of time instead of a range.

(5) Method--If the service is delivered in a group or on an individual basis.

(6) Periodic review [Review]--As defined in 34 CFR §303.342(b), a review by the IFSP team, based on the assessment of the child, that results in approval of or modifications to the IFSP.

§350.1004.Individualized Family Service Plan [(IFSP)] Development.

(a) The IFSP team must develop a written initial IFSP no more than [within] 45 days after [from ] the date the subrecipient [Texas Health and Human Services Commission (HHSC) Early Childhood Intervention (ECI)] receives a referral on a child unless the child or parent is unavailable due to exceptional family circumstances documented in the child's record. The IFSP must be: [be]

(1) completed during a face-to-face meeting with a [the] family in accordance with 20 USC §1436 and 34 CFR §§303.340 - 303.346; and [303.346.]

(2) [(b) The IFSP must be] developed based on evaluation and assessment of a child as described in 34 CFR §303.321 and Subchapter H of this chapter (relating to Eligibility, Evaluation, and Assessment).

(b) An IFSP must address the developmental needs of the child and the case management needs of the family as identified in the comprehensive needs assessment, unless the family declines to address a specified need.

(c) A subrecipient [contractor] must provide a parent with a copy of the IFSP [IFSP, as required by 34 CFR §303.405 and §303.409] and maintain the original IFSP in the child's record.

(d) A subrecipient [contractor] must deliver ECI [early childhood intervention] services according to the IFSP.

(e) An IFSP team must conduct a periodic review of the IFSP at least every six months in accordance with 34 CFR §303.342.

(f) If a child was [An IFSP meeting must be conducted at least annually, if the child was] younger than 21 months of age on the date of the previous initial or annual IFSP meeting, an IFSP meeting must be conducted at least annually to evaluate and revise, as appropriate, the IFSP for a child and the child's family in accordance with 34 CFR §303.342. The meeting may be conducted by a method other than face-to-face if:

(1) approved by the parent;

(2) the subrecipient [contractor] has a plan approved by HHSC for conducting annual IFSP meetings by a method other than face-to-face when appropriate for the child and family; and

(3) the subrecipient [contractor] documents how the LPHA's [Licensed Practitioner of the Healing Arts'] observations and conclusions of the re-evaluation of the child were communicated and incorporated into the IFSP.

(g) If a [the] child was 21 months of age or older on the date of the previous initial or annual IFSP, the IFSP team must conduct a periodic review that meets the requirements in §350.1017 of this subchapter (relating to Periodic Reviews). [Review).]

(h) Documentation in the child's record must reflect compliance with related state and federal requirements.

(i) The subrecipient [contractor] must comply with all requirements in Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures) during the IFSP process.

§350.1007.Interim Individualized Family Service Plan [(IFSP)].

(a) An interim IFSP may be developed for an eligible child and family who need supports and services to begin immediately. ECI [Early Childhood Intervention (ECI)] services may begin before completing an evaluation and assessment if: [if the following conditions are met:]

(1) parental consent is obtained;

(2) the interim IFSP includes the name of the assigned service coordinator;

(3) the interim IFSP includes the services that have been determined to be needed immediately; and

(4) the evaluation, assessment, and initial IFSP are completed within the 45-day timeframe in accordance with 34 CFR §303.310.

(b) An annual interim IFSP may be developed for an eligible child and family who need supports and services to continue when exceptional family circumstances prevent the team from completing all required components of the annual meeting to evaluate the IFSP in accordance with §350.1019 of this subchapter (relating to Annual Meeting to Evaluate the Individualized Family Service Plan). [IFSP).] ECI services may continue if: [if the following conditions are met:]

(1) parental consent is obtained;

(2) the interim IFSP is in accordance with 34 CFR §303.342;

(3) the interim IFSP includes the name of the assigned service coordinator;

(4) the interim IFSP includes the services that have been determined to be needed; and

(5) the evaluation, assessment, and all required components of the annual meeting to evaluate the IFSP must be completed within 45 days of the date the annual review of the IFSP was due.

§350.1009.Participants in Initial and Annual Individualized Family Service Plan [(IFSP)] Meetings.

(a) The initial IFSP meeting and each annual meeting to evaluate the IFSP must be conducted by the IFSP team as defined in §350.103 of this chapter (relating to Definitions) and 34 CFR §303.343(a).

[(b) The initial IFSP meeting and the annual meeting to evaluate the IFSP must be conducted by an interdisciplinary team that includes, at a minimum, the parent and at least two professionals from different disciplines or professions.]

[(1) At least one professional must be an Early Childhood Intervention (ECI) service coordinator.]

[(2) At least one professional must be a Licensed Practitioner of the Healing Arts (LPHA).]

[(3) At least one ECI professional must have been involved in conducting the evaluation. This may be the service coordinator, the LPHA, or a third professional.]

[(4) If the LPHA attending the IFSP meeting did not conduct the evaluation, the contractor must ensure that the most recent observations and conclusions of the LPHA who conducted the evaluation were communicated to the LPHA attending the initial IFSP meeting and incorporated into the IFSP.]

[(5) Other team members may participate by other means acceptable to the team.]

(b) [(c)] With parental consent, the subrecipient [contractor] must also invite to the initial IFSP meeting and annual meetings to evaluate the IFSP:

(1) Early Head Start or [and] Migrant Head Start staff members, if the family is jointly served by either of these programs; and

(2) representatives from other agencies serving or providing case management to the child or family, including Medicaid managed care programs.

(c) [(d)] If a child:

(1) is documented to be deaf or hard of hearing as described in §350.809(2) [§350.813(a)] of this chapter (relating to Initial Eligibility Criteria [Determination of Hearing and Auditory Status]), the IFSP team for an initial IFSP meeting and annual IFSP evaluation meetings must include a certified teacher of the deaf and hard of hearing; or

(2) has a documented visual impairment as described in §350.809(2) [§350.815(a)] of this chapter (relating to Initial Eligibility Criteria [Determination of Vision Status]), the IFSP team for an initial IFSP meeting and annual IFSP evaluation meetings must include a certified teacher of the visually impaired.

(d) [(e)] Unless there is documentation that the LEA [Local Education Agency] has waived notice, the subrecipient [contractor] must:

(1) provide the certified teacher required in subsection (c) [(d)] of this section at least a 10-day written notice before the initial IFSP meeting, any annual meetings to evaluate the IFSP, or any review and evaluation that affects the child's deaf and hard of hearing or vision services; and

(2) keep documentation of the notice in the child's [ECI] record.

(e) [(f)] The IFSP team cannot plan deaf and hard of hearing or vision services or make any changes that affect those services if the certified teacher required in subsection (c) [(d)] of this section is not in attendance.

(f) The certified teacher required in subsection (c) of this section is not required to attend an IFSP review when changes do not affect the child's deaf and hard of hearing or vision services, but the subrecipient must obtain the teacher's input.

(g) The IFSP team must route the IFSP to the certified teacher required in subsection (c) [(d)] of this section for review and signature when changes to the IFSP do not affect the child's deaf and hard of hearing or vision services.

(h) The certified teacher of the deaf and hard of hearing and the certified teacher of the visually impaired required in subsection (c)[(d)] of this section may submit a request within five days of the IFSP meeting to have another IFSP meeting if the teacher disagrees with any portion of the IFSP.

[(i) The certified teacher required in subsection (d) of this section is not required to attend an IFSP review when changes do not affect the child's deaf and hard of hearing or vision services, but the contractor must obtain the teacher's input.]

§350.1015.Content of the Individualized Family Service Plan [IFSP].

(a) The IFSP team must develop a written IFSP containing all requirements in 20 USC §1436(d) and 34 CFR §303.344 [(relating to Content of an IFSP)]. The IFSP must include the IFSP services pages [standardized IFSP Services Pages] and all of the required elements designated by HHSC ECI, including:

(1) a description of the child's present levels of development, including:

(A) information about the child's participation in the family's typical routines and activities;

(B) the child's strengths;

(C) the child's developmental needs;

(D) the family's concerns and priorities; and

(E) the child's functional abilities identified with codes for establishing the child outcome ratings, described in §350.1307 [§108.1307] of this chapter (relating to [(regarding] Child Outcomes); [Outcomes).]

(2) a description of the case management needs of the family;

(3) measurable goals that address:

(A) the child's and family's needs that [which ] were identified during pre-enrollment, evaluation, and assessment;

(B) the child's functional developmental skills by describing targeted participation in everyday family and community routines and activities; and

(C) when the IFSP goal [target] is achieved and the action or skill is generalized;

(4) services to:

(A) address the goals in the IFSP;

(B) enhance the child's functional abilities, behaviors, and participation in daily routines; and

(C) strengthen the capacity of the family to meet the child's unique needs;

(5) the discipline of each provider for every service planned; and

(6) the name of the service coordinator.

(b) IFSP services must be monitored by the IFSP team to assess child progress [by the interdisciplinary team] as described in §350.1017 [§108.1017 ] of this subchapter [chapter] (relating to Periodic Reviews).

(c) If the IFSP team determines co-visits are necessary to meet the developmental needs of the child, the IFSP team must:

(1) list each service on the IFSP; and

(2) document in the IFSP a justification of how the child and family will receive greater benefit from the services being provided at the same time.

(d) If providing services with the participation of the routine caregiver in the absence of the parent is necessary, the IFSP team must follow the requirements in §350.1016 [§108.1016] of this subchapter [chapter] (relating to Planning for Services to be Delivered with the Routine Caregiver).

(e) If the IFSP team determines group services are necessary to meet the developmental needs of the child [individual infant or toddler]:

(1) the group services must be planned in an IFSP that also contains individual IFSP services; and

(2) the planned group services must be documented in the child's IFSP.

(f) If the IFSP team determines that an IFSP goal cannot be achieved satisfactorily in a natural environment, the IFSP must contain a justification as to why an early childhood intervention service will be provided in a setting other than a natural environment, as determined appropriate by the parent and the rest of the IFSP team.

(g) The contents of the IFSP must be fully explained to the parent.

(h) The subrecipient [contractor] must obtain the parent's signature on the IFSP services pages [page]. The parent's signature on the IFSP services pages serve [page serves] as written parental consent to provide the ECI services in the IFSP [services].

(1) The written parental consent is valid for up to one year or until the IFSP team changes the type, intensity, or frequency of services.

(2) The subrecipient [contractor ] must not provide ECI services in the IFSP [services ] without current written parental consent.

(i) The subrecipient [contractor] must obtain[, on the IFSP services page,] the dated signatures of every member of the IFSP team on the IFSP services pages. The IFSP must be signed by the LPHA on the team to acknowledge the planned services are reasonable and necessary.

(j) The subrecipient [contractor] must provide the parent a copy of the signed IFSP.

(k) Any time the subrecipient [contractor] assigns a new service coordinator, the following must be documented and attached to the IFSP:

(1) the name of the new service coordinator;

(2) the date of the change; and

(3) the date the family was notified of the change and the method of notification.

§350.1017.Periodic Reviews.

(a) Each periodic review must be conducted by individuals who meet the requirements in 34 CFR §303.343(b) [(relating to IFSP Team meetings and periodic reviews)] and be completed in compliance with 34 CFR §303.342(b) [(relating to Procedures for IFSP development, review, and evaluation)]. The periodic review may be carried out by a meeting or by another means that is acceptable to the parents and other participants.

(b) The [Additionally, the] child's record must contain documentation that includes all required elements designated by HHSC ECI. [of all IFSP team members' participation in the periodic review.]

(1) Participation in the periodic review may be accomplished by a team member attending the meeting face-to-face or by telephone or by providing input and information in advance of the meeting.

(2) If a team member participates by means other than a face-to-face meeting, the team member must give the service coordinator his or her most recent observations and conclusions about the child, and the team member must document how and when the information was shared. [child. The team member must document in the child's record how this information was communicated to the service coordinator.]

(3) If the team member is an LPHA who is not providing ongoing services to the child, he or she must have assessed the child face-to-face within the previous 45 days.

(c) A periodic review is required at least every six months.

(d) Additional periodic reviews of the IFSP are conducted more frequently than six-month intervals if requested by the parent or other IFSP team members.

(e) The periodic review of the IFSP consists of the following actions, which must be documented in the child's record and be provided to the parent:

(1) a review of the child's progress toward meeting each goal on the IFSP and the child's functional abilities related to the goal;

(2) a review of the current developmental needs of the child and the needs of the family related to their ability to meet the developmental concerns and priorities;

(3) a review of the case management needs of the child and the family;

(4) the development of new goals or the modification of existing goals, as appropriate, that must be dated and attached to the IFSP; and

(5) the reasons for any modification to the plan or the rationale for not changing the plan.

(f) If the IFSP team adds transition steps and transition services as part of the periodic review, the team must follow the requirements in §350.1207(d) [§108.1207(d)] of this chapter (relating to Transition Planning).

(g) If the team determines that changes to the type, intensity, or frequency of services are required:

(1) the team completes the [a HHSC required] IFSP services pages [Services Page] and provides a copy to the parent;

(2) the team must document the rationale for:

(A) a change in intensity or frequency of a service;

(B) the addition of a new service; or

(C) the discontinuation of a service; and

(3) the subrecipient [contractor] must continue to provide planned ECI [early childhood intervention] services not affected by the change while the IFSP team develops the IFSP revision and gathers required signatures.

(h) If services remain the same, the documentation must describe the rationale for making no changes and for recommending continued services.

(i) If new goals are developed, the documentation must be provided to the parent.

(j) A change of service coordinator does not require a periodic review.

§350.1019.Annual Meeting to Evaluate the Individualized Family Service Plan [IFSP].

(a) The annual meeting to evaluate the IFSP is conducted after determination of continuing eligibility as described in §350.823 of this chapter (relating to Continuing Eligibility Criteria). [following determination of continuing eligibility.]

(b) In addition to all requirements in 34 CFR §303.342, [§303.342 (relating to Procedures for IFSP development, review, and evaluation),] the documentation of an annual meeting to evaluate [Annual Meeting to Evaluate] the IFSP must [meet the requirements for Complete Review and] include a [documented] team discussion of:

(1) a current description of the child including:

(A) [reviews of the] current evaluations and other information available from ongoing assessment of the child and family needs;

(B) health, vision, hearing, and nutritional status; and

(C) present levels [level] of development related to the three annual child outcome ratings found in §350.1307[§108.1307] of this chapter (relating to Child Outcomes); [Outcomes) including:]

[(i) the functional abilities and strengths of the child;]

[(ii) the developmental needs of the child; and]

[(iii) the family priorities regarding the child's development.]

(2) progress toward achieving the IFSP goals; and

(3) any needed modification of the goals and ECI[early childhood intervention] services.

(c) [(b)] Services provided under an IFSP that has not been evaluated and is not based on a current evaluation and current assessment of needs do [are] not meet the requirements for [fully approved] ECI services.

(1) If the subrecipient [contractor] is at fault, HHSC may disallow and recoup expenditures.

[(2) If the parent has not consented to or has not cooperated with the re-determination of eligibility, the contractor must follow the procedures in §108.807 of this title (relating to Eligibility).]

(2) [(3)] If the parent fails to consent or fails to cooperate in necessary re-evaluations or re-assessments, the subrecipient must respond as indicated in §350.823(c) of this chapter. [no developmental delay or needs may be legitimately determined. The contractor must send prior written notice that the child has no documented current delay or no documented current needs at least 14 days before the contractor discontinues services on the IFSP, unless the parent:]

[(A) immediately consents to and cooperates with all necessary evaluations and assessments; and]

[(B) consents to all or part of a new IFSP.]

(d) [(c)] The parent retains procedural safeguards including the rights to use local and state complaint processes, request mediation, or request an administrative hearing pursuant to 40 TAC §101.1107 [of this title] (relating to Administrative Hearings Concerning Individual Child Rights).

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 August 30, 2024.

TRD-202404097

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.1101

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1101.Purpose.

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 August 30, 2024.

TRD-202404098

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendment affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1104.Early Childhood Intervention Services Delivery.

(a) ECI services [Early childhood intervention services] needed by the child must be initiated in a timely manner and delivered as planned in the IFSP. [Individualized Family Service Plan (IFSP).]

(b) Only qualified staff members, as described in Subchapter C of this chapter (relating to Staff Qualifications), are authorized to provide ECI [early childhood intervention] services.

(c) [(b)] The subrecipient [contractor] must ensure that ECI [early childhood intervention] services are appropriate, as determined by the IFSP team, and based on scientifically based research. [research, to the extent practicable.]

(d) In addition to the requirements in 34 CFR §303.13, ECI [early childhood intervention] services, with the exception cited in subsection (g)[(c)] of this section, must be provided:

(1) according to a plan and with a frequency that is individualized to the parent and child to effectively address the goals established in the IFSP;

(2) only to children who are located in the state of Texas at the time a service is delivered; [of service delivery;]

(3) in the presence of the parent or other routine caregiver, with an emphasis on enhancing the family's capacity to meet the developmental needs of the child; and

(4) in the child's natural environment, as defined in 34 CFR §303.26, unless the criteria listed in 34 CFR §303.126 are met and documented in the case record. [and may be provided via telehealth]

(e) With [with] the written consent of the parent, ECI services may be provided via telehealth. [parent.] If the parent declines to consent to telehealth for some or all services, those services must be provided in person.

[(c) Family education and training, as defined in §350.1105(5) of this subchapter (relating to Capacity to Provide Early Childhood Intervention Services):]

[(1) must be provided:]

[(A) according to a plan and with a frequency that is individualized to the parent and child to effectively address the goals established in the IFSP; and]

[(B) with a parent or other routine caregiver, with an emphasis on enhancing the family's capacity to meet the developmental needs of the child; and]

[(2) may be provided:]

[(A) when a child who resides in Texas is not located in the state at the time of service; and]

[(B) in a setting other than a child's natural environment.]

(f) [(d)] ECI [Early Intervention] services must:

(1) address the development of the whole child within the framework of the family;

(2) enhance the parent's competence to maximize the child's participation and functional abilities within daily routines and activities; and

(3) be provided in the context of natural learning activities in order to assist caregivers to implement strategies that will increase child learning opportunities and participation in daily life.

(g) Family education and training, as defined in §350.1105(5) of this subchapter (relating to Capacity to Provide Early Childhood Intervention Services):

(1) must be provided:

(A) according to a plan and with a frequency that is individualized to the parent and child to effectively address the goals established in the IFSP; and

(B) with a parent or other routine caregiver, with an emphasis on enhancing the family's capacity to meet the developmental needs of the child; and

(2) may be provided:

(A) when a child who resides in Texas is not located in the state at the time of service; and

(B) in a setting other than a child's natural environment.

(h) [(e)] The subrecipient [contractor] must provide a service coordinator and an interdisciplinary team for the child and family throughout the child's enrollment.

(i) [(f)] The subrecipient [contractor] must make reasonable efforts to provide flexible hours in programming [in order] to allow the parent or routine caregiver to participate.

(j) [(g)] The subrecipient [contractor] must comply with all requirements in Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures) when planning and delivering ECI [early childhood intervention] services.

(k) [(h)] Services must be monitored by the IFSP team to assess child progress as described in §350.1017 of this chapter (relating to Periodic Reviews). [interdisciplinary team at least once every six months to determine:]

[(1) what progress is being made toward achieving goals;]

[(2) if services are reducing the child's functional limitations, promoting age appropriate growth and development, and are responsive to the family's identified goals for the child; and]

[(3) whether modifications to the plan are needed.]

[(i) Monitoring occurs as part of the IFSP review process and must be documented in the case record.]

§350.1108.State-Funded [State Funded] Respite Services.

(a) The state's [Texas] General Appropriations Act authorizes reimbursement to the enrolled child's family for respite services that are not directly related to IFSP goals.

(b) Respite services are defined as the care of an enrolled child by a relative or substitute caregiver on a short-term or intermittent basis to provide the child's parent with a break from caring for his or her child. Respite services do not include the routine care of a child for the purposes of allowing a parent to attend work or school.

(c) The subrecipient [contractor] must develop and implement a process for administering the state-funded [state funded] reimbursement of respite services.

(1) The subrecipient [contractor] may collaborate with other ECI subrecipients [contractors ] within their respective consortium to administer the funds.

(2) The subrecipient [contractor] must identify existing respite resources in the community, including potential respite service providers and additional funding sources, before authorizing state-funded [state funded] respite reimbursement.

(3) The subrecipient [contractor] may provide reimbursement for respite services up to the hourly limit set by HHSC ECI, based on the individual needs of the [20 hours of respite per child per month, based on the individual needs of the] family. The subrecipient [contractor] may exceed the hourly [20 hours] respite limit only if:

(A) the family has more than one child enrolled in the ECI program; and

(B) the IFSP team determines that the children cannot be cared for by a single respite provider.

(4) If the parent and the service coordinator do not agree on the complexity of care, based on the needs of the child, and the ECI reimbursement rate, the subrecipient's ECI program director decides the complexity of care and reimbursement rate.

(5) The subrecipient [contractor] must have a process for prioritizing requests for state-funded [state funded] respite reimbursement, and the [reimbursement. The] process must include consideration of:

(A) how respite will benefit the family relationship; and

(B) past use of respite services.

(6) If state respite funds are not available at the time of a request, the subrecipient [contractor] places the eligible family on a waiting list for respite funds.

(7) State respite funds cannot be used to pay:

(A) insurance co-payments, insurance deductibles, or insurance premiums;

(B) a parent to provide respite services to his or her own child;

(C) individuals who live in the same household as the child;

(D) individuals under 18 years of age; or

(E) costs for the care of siblings of the eligible child.

(d) The subrecipient [contractor] must maintain auditable records of state-funded respite reimbursement.

(e) The subrecipient [contractor] must report the number of children whose families received state-funded [state funded] reimbursement of respite services for each month of the contract period as directed by HHSC.

(f) The service coordinator must:

(1) assist the parent in identifying available family and community resources;

(2) assist the parent in determining the type (for example, individual setting, group setting, care in the child's home, or care out of the child's home) and frequency of respite needed;

(3) assist the parent in applying for available state funds for reimbursement of respite services, if needed;

(4) determine the complexity of care, based on the needs of the child;

(5) inform the parent of the following:

(A) state funds under this provision are limited;

(B) the state's annual hourly limits per child;

(C) the hourly co-pay based on family size and income;

(D) the state's level of reimbursement based upon the complexity of care, frequency, and hourly co-pay;

(E) the subrecipient's [contractor's] criteria for prioritizing requests for state funds for reimbursement of respite services and placement on the waiting list; and

(F) the process for requesting a review and decision by the program director if the parent and the service coordinator do not agree on the frequency and complexity of care, based on the needs of the child, and the ECI reimbursement rate.

(g) The service coordinator must explain to the parent what responsibilities the parent has [their responsibility] regarding state-funded [state funded] reimbursement for respite services. The parent is responsible for:

(1) selecting and supervising a respite provider;

(2) scheduling the respite care with the provider;

(3) paying the provider after the respite care is provided;

(4) submitting the completed respite voucher to the subrecipient [contractor] within one month of the voucher's expiration date;

(5) assuming any liability for the selection and use of specific respite providers; and

(6) complying with any potential tax or Internal Revenue Service [IRS] requirements related to the use of state-funded [state funded] respite reimbursement.

(h) The following events must occur in order:

(1) the subrecipient [contractor] determines the number of hours and the level of care for each month, the number of months approved, the beginning and ending dates of the agreement, and the hourly co-pay required;

(2) the subrecipient [contractor] completes all required information on the respite funding agreement;

(3) the parent, the service coordinator or other assigned staff member, and the program director (or designee)[,] sign the completed respite funding agreement;

(4) the subrecipient [contractor] gives the parent a respite voucher for each calendar month in which respite services are approved;

(5) the parent schedules respite with the respite provider;

(6) the respite provider signs the respite voucher after providing the respite care;

(7) the parent completes, signs, and returns the voucher to the subrecipient [contractor] within one month of the voucher's expiration date; and

(8) the subrecipient [contractor] reimburses the parent no more than [within] 30 days after the [of] receipt of an accurately completed voucher.

§350.1111.Service Delivery Documentation Requirements.

Documentation of each service contact must include:

(1) the name of the child;

(2) the name of the subrecipient; [ECI contractor and]

(3) the name and the discipline of the ECI professional; [service provider;]

(4) [(3)] the date, start time, length of time, and place of service;

(5) [(4)] method (individual or group);

(6) [(5)] a description of the techniques by which the provider engaged the family or routine caregiver in activities to meet the developmental needs of the child, which [child. This] includes:

(A) coaching and strategies provided [instructions ] to the family or caregiver;

(B) discussing how activities apply to child and family routines; and

(C) modeling intervention techniques within everyday learning opportunities, including a description of the opportunity for the caregiver's return demonstration;

(7) [(6)] the IFSP goal or goals that were [was] the focus of the intervention;

(8) [(7)] the child's progress related to the IFSP goals addressed during the service; [goals in the IFSP;]

(9) [(8)] relevant new information about the child provided by the family or other routine caregiver; [and]

(10) [(9)] the ECI professional's [service provider's] signature; and [signature.]

(11) the ECI professional's credential.

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 August 30, 2024.

TRD-202404099

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

26 TAC §350.1201

STATUTORY AUTHORITY

The repeal 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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The repeal affects Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1201.Purpose.

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 August 30, 2024.

TRD-202404100

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: October 13, 2024

For further information, please call: (512) 424-6580

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, as well as Texas Government Code §2001.039, which requires a state agency to review and consider for readoption each of its rules every 4 years, and Texas Government Code §531.02119, which provides that the Executive Commissioner of HHSC shall adopt rules prohibiting discrimination based on immunization status.

The amendments affect Texas Government Code Section 531.0055 and Texas Human Resources Code Chapter 73.

§350.1203.Definitions.

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

(1) Community transition meeting [Transition Meeting]--A meeting held to discuss how the subrecipient[contractor] will assist the family with transitioning from ECI [early childhood intervention] services to community services, activities, places, or programs that the family would like the child to participate in after exiting ECI [early childhood intervention] services.

(2) LEA notification [Notification]--A notification sent [Notification] to the LEA of a child who is potentially eligible for ECSE [LEA] services. [The parent may opt out of the LEA Notification.]

(3) LEA notification opt out [Notification Opt Out]--The parent's choice not to allow the subrecipient [contractor] to send the child's limited personally identifiable information to the LEA to meet [LEA Notification] requirements in §350.1211 of this subchapter (relating to Local Education Agency Notification of Potential Eligibility for Early Childhood Special Education Services).

(4) LEA transition conference [Transition Conference]--A meeting to discuss ECSE services [LEA special education services] and eligibility determination for [special education services for] children who are potentially eligible for ECSE [special education] services.

(5) Limited personally identifiable information [Personally Identifiable Information]--The child's and parent's names, addresses, and phone numbers; child's date of birth; service coordinator's name; and language spoken by the child and family.

(6) Transition planning [Planning]--The process of identifying and documenting appropriate steps and transition services to support the child and family to smoothly and effectively transition from ECI [early childhood intervention] services to ECSE [LEA special education] services or other community services, activities, places, or programs that the family would like the child to participate in after exiting ECI [early childhood intervention] services.

§350.1207.Transition Planning.

(a) Transition planning is a process for [that involves] developing and updating appropriate transition steps and transition services:

(1) jointly with families; and

(2) based on recommendations from the IFSP [Individualized Family Service Plan (IFSP)] team.

(b) All transition activities must be documented in the child's record.

(c) The IFSP must contain an appropriate general transition statement.

(d) The subrecipient [contractor] must conduct an IFSP [a] meeting, which includes the parent, in accordance with 34 CFR §303.342(d) and (e) and §303.343(a), to plan and document transition [appropriate ] steps and transition services [in the IFSP].

(1) Except as provided in subsections (f) and [-] (g) of this section, the meeting to plan and document transition [appropriate] steps and transition services [in the IFSP] must be conducted: [conducted]

(A) no less [not fewer] than 90 days before the child's third birthday; and [days, and at the discretion of all parties,]

(B) not more than nine months before the child's third birthday.

(2) If the child is referred and determined to be eligible for ECI services more than 45 but less than 90 days before the child's third birthday, [appropriate] transition steps and transition [transitions] services must be included in the child's initial IFSP.

(3) [(2)] If transition planning occurs at a periodic review instead of an initial or annual IFSP meeting, the meeting must meet the requirements in 34 CFR §303.342(d) and (e) and §303.343(a).

(4) [(3)] The appropriate transition steps and transition services that the IFSP team plans at the meeting must be documented in the IFSP and must include:

(A) timelines and responsible party for each transition activity;

(B) discussions with and training of parents, as appropriate, regarding future placements and other matters related to the child's transition;

(C) procedures to prepare the child for changes in service delivery, including steps to help the child adjust to and function in a new setting;

(D) the family's choice for the child to transition into a community or educational program or for the child to remain in the home;

(E) identification of transition [appropriate ] steps and transition services, as determined [deemed necessary] by the IFSP team, to support the family's exit from ECI services to ECSE or other community services, [early childhood intervention services to Local Education Agency (LEA) special education services or other appropriate] activities, places, or programs the family would like the child to participate in after exiting ECI [early childhood intervention] services;

(F) confirmation that the transition notification, which requires child find information to be sent [transmitted ] to the LEA [or other relevant agency,] has occurred;

(G) program options, if the child is potentially eligible for ECSE [special education] services, for the period from the child's third birthday through the remainder of the school year; and

(H) for children who are likely to be eligible for long-term [specialized] services and supports, information on Texas Medicaid waiver programs for people with disabilities or special health care needs, including information on how to add children to the waiver interest lists.

(e) The child's planned transition steps and transition services must be updated and documented in the IFSP anytime the:

(1) IFSP team identifies new transition [appropriate ] steps and transition [transitional] services; and

(2) parent's goals for the child evolve and change.

(f) At any time during the child's enrollment in ECI [early childhood intervention] services, the IFSP team must, upon parental request, meet to plan steps to support the child and family to transition:

(1) from one subrecipient [contractor] to another subrecipient [contractor];

(2) from one family setting to another family setting; or

(3) when the family is moving out of state.

(g) If the child is referred fewer than 45 days before the child's third birthday, the IFSP team is not required to plan transition steps and transition services. If the child is potentially eligible for ECSE [preschool special education] services, the subrecipient [contractor] must, with written parental consent, refer the child directly to the LEA as soon as possible.

(h) The subrecipient [contractor] must comply with all requirements in Subchapter B of this chapter (relating to Procedural Safeguards and Due Process Procedures).

§350.1209.State Education Agency [SEA] Notification.

HHSC coordinates the SEA [State Education Agency's (SEA)] notification of children potentially eligible for ECSE, [special education services,] in compliance with 34 CFR §303.209(b).

(1) HHSC will send notification of children potentially eligible for ECSE [special education] services to the SEA at least 90 days before each child's third birthday, or as soon as possible for children who are determined eligible for ECI services more than 45 but less than 90 days before the child's third birthday.

(2) If a referral is received for a child fewer than 45 days before the child's third birthday and the child may be potentially eligible for ECSE [preschool special education] services, HHSC will, with written parental consent, refer the child directly to the SEA. §350.1211.Local Education Agency [(LEA)] Notification of Potential Eligibility for Early Childhood Special Education Services.

(a) The IFSP team determines if a child who is two years old or older receiving ECI services is potentially eligible for ECSE. [The contractor's Individualized Family Service Plan (IFSP) team determines if a two year old receiving early childhood intervention services is potentially eligible for preschool special education services.]

(b) If the IFSP team determines the child is potentially eligible for ECSE, the subrecipient must provide notification to the LEA as soon as possible, unless the parent opts out of the disclosure as described in §350.1213 of this subchapter (relating to The Family's Right to Opt Out of the Local Education Agency Notification).

(1) Written parental consent is not required for the subrecipient [contractor] to send the LEA Notification [of Potentially Eligible for Special Education Services, but the parent may opt out of LEA Notification as described in §350.1213 of this subchapter (relating to LEA Notification Opt Out)].

(2) Written parental consent is required before sending information other than the child's limited personally identifiable information to the LEA.

(c) For a child whose parent has not opted out of the disclosure as described in §350.1213 of this subchapter: [subchapter,]

(1) the subrecipient [contractor ] must notify the LEA at least 90 days before the child's third birthday that the child is potentially eligible for ECSE services; and [preschool special education services.]

(2) the subrecipient [The contractor] must send the LEA for the area in which the child resides the LEA Notification, [Notification of Potentially Eligible for Special Education Services,] which contains the child's limited personally identifiable information as defined in §350.1203(5) of this subchapter (relating to Definitions).

(d) If the subrecipient [contractor] determines a child is eligible for ECI [early childhood intervention] services less [fewer] than 90 days and more than 45 days before the child's third birthday, the subrecipient [contractor] must determine as soon as possible whether the child is potentially eligible for ECSE [preschool special education] services. [If the contractor determines the child is potentially eligible for preschool special education services, the contractor must provide notification to the LEA as soon as possible, unless the parent opts out of the disclosure as described in §350.1213 of this subchapter.]

(e) If the subrecipient [contractor] receives a referral for a child fewer than 45 days before the child's third birthday and the child may be potentially eligible for ECSE: [preschool special education services,]

(1) the subrecipient [contractor ] must, with written parental consent, refer the child directly to the LEA; and [LEA.]

(2) the subrecipient [The contractor] is not required to conduct pre-enrollment procedures, an evaluation, an assessment, or an initial IFSP meeting.

(f) To assist the LEA in determining eligibility, the subrecipient [contractor], with written parental consent, must send the LEA the most recent:

(1) evaluations;

(2) assessments; and

(3) IFSPs.

§350.1213.The Family's Right to Opt Out of the Local Education Agency Notification [LEA Notification Opt Out].

(a) The parent may choose not to allow the subrecipient to: [contractor to]

(1) send the child's limited personally identifiable information to the LEA; and [LEA. The contractor must:]

(2) notify the LEA of their child's potential eligibility for ECSE services.

(b) The subrecipient must:

(1) inform the parent of the LEA Notification [of Potentially Eligible for Special Education Services] requirements before the parent signs the initial IFSP and annually as part of the annual meeting to review the IFSP; and

(2) explain the option to opt out of the LEA Notification [LEA Notification Opt Out] to the parent and the consequences of this option. [choice.]

(c) [(b) The parent may choose to opt out of the LEA Notification of Potentially Eligible for Special Education Services.] The parent must inform the subrecipient [contractor] of their decision to opt out of the LEA Notification [LEA Notification Opt Out choice] in writing before the scheduled notification date.

(d) [(c)] The subrecipient [contractor] must provide the parent written communication regarding LEA Notification that includes the following information:

(1) what information will be disclosed to the LEA;

(2) the scheduled LEA Notification date;

(3) a clear statement that the parent must inform the subrecipient [contractor] of their decision to opt out of the LEA Notification [LEA Notification Opt Out choice] in writing before the scheduled notification date; and

(4) an explanation that the child's limited personally identifiable information will be sent for LEA Notification, unless the parent informs the subrecipient of their decision to opt out of the LEA Notification [contractor in writing of their LEA Notification Opt Out choice] before the scheduled notification date.

(e) [(d)] The subrecipient [contractor] must provide the parent the written communication regarding LEA Notification as required in subsection (d) [(c)] of this section at least 10 days before limited personally identifiable information is scheduled to be released for the LEA Notification [of Potentially Eligible for Special Education Services].

(f) [(e)] If the parent opts out of the LEA Notification [of Potentially Eligible for Special Education Services] at any time before the scheduled notification date, the subrecipient [contractor] must:

(1) not send the child's limited personally identifiable information to the LEA;

(2) inform the parent that even if he or she opts out of LEA Notification, he or she can later request that the child's limited personally identifiable information be sent to the LEA; and

(3) document in the child's record:

(A) the date the written communication regarding LEA Notification was provided to the parent; and

(B) the parent's written request to opt out of LEA Notification [of Potentially Eligible for Special Education Services].

(g) [(f)] If the subrecipient [contractor] determines a child is eligible for ECI more than 45 days but less than 90 days before the child's third birthday and the IFSP team determines the child is potentially eligible for special education services, the subrecipient [contractor] must:

(1) immediately inform the parent of the LEA Notification requirements;

(2) explain the option to opt out of the LEA Notification to the parent and the consequences of this option [LEA Notification Opt Out to the parent and the consequences of this choice]; and

(3) comply with all other requirements in this section related to the family's right to opt out of the LEA Notification [Opt Out].

§350.1215.Reporting Late Local Education Agency [LEA] Notifications.

(a) When the subrecipient [contractor ] provides the LEA Notification to the LEA [of Potentially Eligible for Special Education Services to districts or charter schools] less than 90 days before the child's third birthday, the subrecipient [contractor's ECI program] must include in the notification the reason for the delay.