Texas Home Living (TxHmL) Program

Chapter 9

Subchapter N

Revision 08-1

 

 

§9.551 Purpose

 

The purpose of this subchapter is to describe:

(1) the eligibility criteria and process for enrollment in the Texas Home Living (TxHmL) Program;

(2) the requirements for TxHmL Program provider certification and process for certifying and sanctioning program providers in the TxHmL Program;

(3) the requirements for reimbursement of program providers; and

(4) the requirements for mental retardation authorities (MRAs) and the process for correcting practices found to be out of compliance with the TxHmL Program principles for mental retardation authorities.

 

§9.552 Application

 

This subchapter applies to MRAs, program providers, and persons applying for or receiving TxHmL Program services and their legally authorized representatives (LARs).

 

§9.553 Definitions

 

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

(1) Applicant — Texas resident seeking services in the TxHmL Program.

(2) CARE — Client Assignment and Registration System. A DADS database with demographic and other data about an individual who is receiving services and supports or on whose behalf services and supports have been requested.

(3) CDS — Consumer directed services. A service delivery option as defined in §41.103 of this title (relating to Definitions).

(4) CDSA — Consumer directed service agency. An entity, as defined in §41.103 of this title, that provides financial management services and, at the request of an individual or LAR, support consultation to an individual participating in CDS.

(5) CMS — Centers for Medicare and Medicaid Services. The federal agency that administers Medicaid programs.

(6) Critical incident data — Information a program provider enters in CARE that includes the number of behavior intervention plans authorizing restraint, the number of restraints used, the number of medication errors, the number of serious physical injuries, and the number of deaths.

(7) DADS — The Department of Aging and Disability Services.

(8) DFPS — The Department of Family and Protective Services.

(9) Financial management services — A service, as defined in §41.103 of this title, that is provided to an individual participating in CDS.

(10) HCS Program — The Home and Community-based Services Program operated by DADS as authorized by CMS in accordance with §1915(c) of the Social Security Act.

(11) HHSC — The Texas Health and Human Services Commission.

(12) ICF/MR Program — The Intermediate Care Facilities for Persons with Mental Retardation or Related Conditions Program.

(13) Individual — A person enrolled in the TxHmL Program.

(14) IPC — Individual plan of care. A document that describes the type and amount of each TxHmL Program service component to be provided to an individual and medical and other services and supports to be provided through non-TxHmL Program resources.

(15) IPC cost — Estimated annual cost of program services included on an IPC.

(16) IPC year — A 12-month period of time starting on the date an authorized initial or renewal IPC begins.

(17) LAR — Legally authorized representative. A person authorized by law to act on behalf of a person with regard to a matter described in this subchapter, and may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(18) LOC — Level of care. A determination made by DADS about an applicant or individual as part of the TxHmL Program eligibility determination process based on data submitted on the MR/RC Assessment.

(19) LON — Level of need. An assignment given by DADS for an applicant or individual that is derived from the service level score obtained from the administration of the Inventory for Client and Agency Planning (ICAP) to the individual and from selected items on the MR/RC Assessment.

(20) MRA — Mental retardation authority. An entity to which HHSC's authority and responsibility described in THSC, §531.002 has been delegated.

(21) MR/RC Assessment — A form used by DADS for LOC determination and LON assignment.

(22) Own home or family home — A residence that is not:

(A) an intermediate care facility for persons with mental retardation or related conditions (ICF/MR) licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(B) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(C) an assisted living facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 247;

(D) a residential child-care operation licensed or subject to being licensed by DFPS unless it is a foster family home or a foster group home;

(E) a facility licensed or subject to being licensed by the Department of State Health Services;

(F) a residential facility operated by the Department of Assistive and Rehabilitative Services;

(G) a residential facility operated by the Texas Youth Commission, a jail, or a prison; or

(H) a setting in which two or more dwellings, including units in a duplex or apartment complex, single family homes, or facilities listed in subparagraphs (A)-(G) of this paragraph, but excluding supportive housing under Section 811 of the National Affordable Housing Act of 1990, meet all of the following criteria:

(i) the dwellings create a residential area distinguishable from other areas primarily occupied by persons who do not require routine support services because of a disability;

(ii) most of the residents of the dwellings are persons with mental retardation; and

(iii) the residents of the dwellings are provided routine support services through personnel, equipment, or service facilities shared with the residents of the other dwellings.

(23) Performance contract — A written agreement between DADS and an MRA for the provision of one or more functions as described in THSC, §533.035(b).

(24) PDP — Person-directed plan. A plan developed for an applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment) that describes the supports and services necessary to achieve the desired outcomes identified by the applicant or LAR on behalf of the applicant.

(25) Program provider — An entity that provides TxHmL Program services under a program provider agreement with DADS in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers).

(26) Program provider agreement — A written agreement between DADS and a program provider that obligates the program provider to deliver TxHmL Program service components, except for financial management services and support consultation.

(27) Respite facility — A site that is not a residence and that is owned or leased by a program provider for the purpose of providing out-of-home respite to not more than six individuals receiving TxHmL Program services or other persons receiving similar services at any one time.

(28) Service back-up plan — A plan, as defined in §41.103 of this title, that ensures continuity of critical service components if service delivery is interrupted.

(29) Service coordinator — An employee of an MRA who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services including TxHmL Program services.

(30) Service planning team — A planning team constituted by an MRA consisting of an applicant or individual, LAR, service coordinator, and other persons chosen by the applicant, individual, or LAR.

(31) Support consultation — A service, as defined in §41.103 of this title, that is provided to an individual participating in the CDS option at the request of the individual or LAR.

(32) TAC — Texas Administrative Code. A compilation of state agency rules published by the Texas Secretary of State in accordance with Texas Government Code, Chapter 2002, Subchapter C.

(33) THSC — Texas Health and Safety Code. Texas statutes relating to health and safety.

(34) TxHmL Program — The Texas Home Living Program, operated by DADS and approved by CMS in accordance with

§1915(c) of the Social Security Act, that provides community-based services and supports to eligible individuals who live in their own homes or in their family homes.

 

§9.554 Description of the TxHmL Program

 

(a) The TxHmL Program is a Medicaid waiver program approved by the CMS pursuant to §1915(c) of the Social Security Act. It provides community-based services and supports to eligible individuals who live in their own homes or in their family homes. The TxHmL Program is operated by DADS under the authority of HHSC.

(b) Enrollment in the TxHmL Program is limited to the number of individuals in specified target groups approved by CMS.

(c) DADS has grouped the counties of the state of Texas into geographical areas, referred to as "local service areas," each of which is served by an MRA. DADS has further grouped the local service areas into "waiver contract areas." A list of the counties included in each local service area and waiver contract area is available at http://www.dads.state.tx.us.

(1) A program provider may provide TxHmL Program services only to persons residing in the counties specified in its program provider agreement.

(2) A program provider must have a separate program provider agreement for each waiver contract area served by the program provider.

(3) A program provider may have a program provider agreement to serve one or more local service areas within a waiver contract area, but the program provider must serve all of the counties within each local service area covered by the program provider agreement.

(4) A program provider may not have more than one program provider agreement per waiver contract area.

(d) A program provider's program provider agreement must:

(1) specify which of the following service components will be provided by a person who is employed, not contracted with, the program provider:

(A) community support;

(B) day habilitation;

(C) supported employment; or

(D) respite; and

(2) be amended before changing the service component specified in accordance with paragraph (1) of this subsection.

(e) The MRA must provide service coordination to an individual who is enrolled in the TxHmL Program in accordance with this subchapter. Service coordination is reimbursed in accordance with 1 TAC

§355.746 (relating to Reimbursement Methodology for Mental Retardation (MR) Service Coordination).

(f) TxHmL Program service components, as defined in

§9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components), are selected by the service planning team for inclusion in an applicant's or individual's IPC to:

(1) ensure the applicant's or individual's health and welfare in the community;

(2) supplement rather than replace the applicant's or individual's natural supports and other non-TxHmL Program sources for which the applicant or individual may be eligible; and

(3) prevent the applicant's or individual's admission to institutional services.

(g) TxHmL Program service components, as defined in §9.555 of this subchapter, are divided into two service categories, the Community Living Service Category and the Technical and Professional Supports Service Category. Each category has an annual cost limit referred to as the service category limit. The combined cost of the two service categories must not exceed the combined cost limit per individual per IPC year specified in Appendix C of the TxHmL Program waiver application approved by CMS, which is available at http://www.dads.state.tx.us.

(1) The service category limit for the Community Living Service Category per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS, unless an exception is approved in accordance with §9.559 of this subchapter (relating to Request to Increase Service Category Limits). This service category includes the following service components:

(A) community support;

(B) day habilitation;

(C) employment assistance;

(D) supported employment;

(E) respite;

(F) financial management services, if the individual is participating in CDS; and

(G) support consultation, if the individual is participating in CDS.

(2) The service category limit for the Professional and Technical Supports Service Category per individual per IPC year is specified in Appendix C of the TxHmL Program waiver application approved by CMS, unless an exception is made in accordance with §9.559 of this subchapter. This service category includes the following service components:

(A) nursing;

(B) behavioral support;

(C) adaptive aids;

(D) minor home modifications;

(E) specialized therapies; and

(F) dental treatment.

(h) CDS is a service delivery option, as described in Chapter 41 of this title (relating to Consumer Directed Services Option), in which an individual or LAR employs and retains service providers and directs the delivery of one or more service components. If an individual is receiving community support and respite and chooses to have one of these service components provided through CDS, the other service component must also be provided through CDS.

 

§9.555 Definitions of TxHmL Program Service Components

 

(a) The community support service component provides habilitative or support activities that:

(1) The community support service component provides services and supports in an individual's home and at other community locations that are necessary to achieve outcomes identified in an individual's PDP.

(A) provide or foster improvement of or facilitate an individual's ability to perform functional living skills and other activities of daily living;

(B) assist an individual to develop competencies in maintaining the individual's home life;

(C) foster improvement of or facilitate an individual's ability and opportunity to:

(i) participate in typical community activities including activities that lead to successful employment;

(ii) access and use of services and resources available to all citizens in the individual's community;

(iii) interact with members of the community;

(iv) access and use available non-TxHmL Program services or supports for which the individual may be eligible; and

(v) establish or maintain relationships with people, who are not paid service providers, that expand or sustain the individual's natural support network.

(2) The community support service component provides assistance with medications and the performance of tasks delegated by a registered nurse in accordance with state law.

(3) The community support service component does not include payment for room or board.

(4) The community support service component may not be provided at the same time that the respite, day habilitation, or supported employment service component is provided.

(5) The community support service component is reimbursed on an hourly basis.

(b) The day habilitation service component assists an individual to acquire, retain, or improve self-help, socialization, and adaptive skills necessary to live successfully in the community and participate in home and community life and does not include services that are funded under §110 of the Rehabilitation Act of 1973 or §602(16) and (17) of the Individuals with Disabilities Education Act.

(1) The day habilitation service component provides:

(A) individualized activities consistent with achieving the outcomes identified in the individual's PDP;

(B) activities necessary to reinforce therapeutic outcomes targeted by other waiver service components, school, or other support providers;

(C) services in a group setting other than the individual's home for normally up to five days a week, six hours per day;

(D) personal assistance for an individual who cannot manage personal care needs during the day habilitation activity;

(E) assistance with medications and the performance of tasks delegated by a registered nurse in accordance with state law; and

(F) transportation during the day habilitation activity necessary for the individual's participation in day habilitation activities.

(2) The day habilitation component may not be provided at the same time supported employment is provided to an individual who has obtained employment.

(3) The day habilitation component is reimbursed on a daily or one-half day unit basis.

(c) The nursing service component provides treatment and monitoring of health care procedures as prescribed by a physician or medical practitioner or as required by standards of professional practice or state law to be performed by a licensed nurse.

(1) The nursing service component includes:

(A) administration of medication;

(B) monitoring an individual's use of medications;

(C) monitoring an individual's health data and information;

(D) assisting an individual or LAR to secure emergency medical services for the individual;

(E) making referrals for appropriate medical services;

(F) performing health care procedures as ordered or prescribed by a physician or medical practitioner or as required by standards of professional practice or law to be performed by licensed nursing personnel; and

(G) delegating and monitoring tasks assigned to other service providers by a registered nurse in accordance with state law.

(2) The nursing service component is reimbursed on an hourly unit basis.

(d) The employment assistance service component assists an individual to locate paid employment in the community.

(1) The employment assistance component assists an individual with the participation of the LAR to identify:

(A) the individual's employment preferences;

(B) the individual's job skills;

(C) the individual's requirements for the work setting and work conditions; and

(D) prospective employers that may offer employment opportunities compatible with the individual's identified preferences, skills, and requirements.

(2) The employment assistance provider facilitates the individual's employment by contacting prospective employers and negotiating the individual's employment.

(3) Employment assistance is reimbursed on an hourly unit basis.

(4) The employment assistance service component must be re-authorized by the individual's service planning team every 180 calendar days after the initiation of the service component.

(e) The supported employment service component provides ongoing individualized supports needed by an individual to sustain paid work in an integrated work setting.

(1) An individual receiving supported employment is:

(A) compensated directly by the individual's employer in accordance with the Fair Labor Standards Act; and

(B) employed in an integrated work setting by an employer that has no more than one employee or 3.0% of its employees with disabilities unless the individual's PDP indicates otherwise or the employer subsequently hires an additional employee with disabilities who is receiving services from a provider other than the individual's program provider or who is not receiving services.

(2) Supported employment may only be provided when the service has been denied or is otherwise unavailable to an individual through a program operated by a state rehabilitation agency or the public school system.

(3) Supported employment is provided away from the individual's place of residence.

(4) Supported employment does not include payment for the supervisory activities rendered as a normal part of the business setting.

(5) Supported employment does not include services provided to an individual who does not require such services to continue employment.

(6) An individual's program provider may not be the employer of an individual receiving supported employment unless a variance is approved by DADS in accordance with paragraph (7) or (8) of this subsection. DADS may approve a variance for a period of time not to exceed one year.

(7) DADS may approve a variance of the requirement in paragraph (6) of this subsection if, at the time the applicant or LAR chooses enrollment in the TxHmL Program, the applicant is receiving DADS general revenue funded supported employment from a program provider, the program provider is the applicant's employer, the applicant or LAR requests the program provider to continue providing supported employment to the applicant after enrollment, and the program provider submits a written request for the variance to DADS before the effective date of the applicant's enrollment.

(8) If a variance approved in accordance with paragraph (7) of this subsection expires, DADS may approve a subsequent variance if:

(A) changes to the individual's job duties require individualized supports and training beyond that expected as a normal part of the business setting in order for the individual to sustain current employment; and

(B) the program provider submits a written request for a variance to DADS.

(9) Supported employment is reimbursed on an hourly unit basis.

(f) The behavioral support service component provides specialized interventions that assist an individual to increase adaptive behaviors to replace or modify maladaptive or socially unacceptable behaviors that prevent or interfere with the individual's inclusion in home and family life or community life. The component is reimbursed on an hourly unit basis and includes:

(1) assessment and analysis of assessment findings of the behavior(s) to be targeted necessary to design an appropriate behavioral support plan;

(2) development of an individualized behavioral support plan consistent with the outcomes identified in the individual's PDP;

(3) training of and consultation with the LAR, family members, or other support providers and, as appropriate, with the individual in the purpose/objectives, methods and documentation of the implementation of the behavioral support plan or revisions of the plan;

(4) monitoring and evaluation of the success of the behavioral support plan implementation; and

(5) modification, as necessary, of the behavioral support plan based on documented outcomes of the plan's implementation.

(g) The adaptive aids service component provides devices, controls, appliances, or supplies and the repair or maintenance of such aids, if not covered by warranty, as specified in the waiver application approved by CMS that enable an individual to increase mobility, ability to perform activities of daily living, or ability to perceive, control, or communicate with the environment in which the individual lives.

(1) Adaptive aids are provided to address specific needs identified in an individual's PDP and are limited to:

(A) lifts;

(B) mobility aids;

(C) positioning devices;

(D) control switches/pneumatic switches and devices;

(E) environmental control units;

(F) medically necessary supplies;

(G) communication aids;

(H) adapted/modified equipment for activities of daily living; and

(I) safety restraints and safety devices.

(2) Adaptive aids costing more than $2,000 but not more than $6,000 in an IPC year may be provided for an individual if DADS has approved an exception to the service category limit of the Professional and Technical Support Service Category in accordance with

§9.559 of this subchapter (relating to Request to Increase Service Category Limits).

(3) The adaptive aids service component does not include items or supplies that are not of direct medical or remedial benefit to the individual or that are available to the individual through the Medicaid State Plan, through other governmental programs, or through private insurance.

(h) The minor home modifications service component provides physical adaptations to the individual's home that are necessary to ensure the health, welfare, and safety of the individual or to enable the individual to function with greater independence in the home and the repair or maintenance of such adaptations, if not covered by warranty.

(1) Minor home modifications as specified in the waiver application approved by CMS may be provided up to a lifetime limit of $7,500 per individual. Minor home modifications costing more than $2,000 but not more than $7,500 in an IPC year may be provided if DADS has approved an exception to the service category limit of the Professional and Technical Support Service Category in accordance with §9.559 of this subchapter. After the $7,500 lifetime limit has been reached, an individual is eligible for an additional $300 per IPC year for additional modifications or maintenance of home modifications.

(2) The minor home modifications service component does not include adaptations or improvements to the home that are of general utility, are not of direct medical or remedial benefit to the individual, or add to the total square footage of the home.

(3) Minor home modifications are limited to:

(A) purchase and repair of mobility/wheelchair ramps;

(B) modifications to bathroom facilities;

(C) modifications to kitchen facilities; and

(D) specialized accessibility and safety adaptations.

(i) The dental treatment service component may be provided up to a maximum of $1,000 per individual per IPC year for the following treatments:

(1) emergency dental treatment;

(2) preventive dental treatment;

(3) therapeutic dental treatment; and

(4) orthodontic dental treatment, excluding cosmetic orthodontia.

(j) The respite service component is provided for the planned or emergency short-term relief of the unpaid caregiver of an individual.

(1) The respite service component provides an individual with:

(A) assistance with activities of daily living and functional living tasks;

(B) assistance with planning and preparing meals;

(C) transportation or assistance in securing transportation;

(D) assistance with ambulation and mobility;

(E) assistance with medications and performance of tasks delegated by a registered nurse in accordance with state law;

(F) habilitation and support that facilitate:

(i) an individual's inclusion in community activities, use of natural supports and typical community services available to all people;

(ii) an individual's social interaction and participation in leisure activities; and

(iii) development of socially valued behaviors and daily living and independent living skills.

(2) Reimbursement for respite provided in a setting other than the individual's residence includes payment for room and board.

(3) Respite is provided on an hourly or daily unit basis.

(4) Respite may be provided in the individual's residence or, if certification principles stated in §9.578(o) of this subchapter (relating to Program Provider Certification Principles: Service Delivery) are met, in other locations.

(k) The specialized therapies service component provides assessment and treatment by licensed occupational therapists, physical therapists, speech and language pathologists, audiologists, and dietitians and includes training and consultation with an individual's LAR, family members or other support providers. Specialized therapies are reimbursed on an hourly unit basis.

(l) Financial management services are provided if the individual participates in CDS.

(m) Support consultation is provided at the request of the individual or LAR if the individual participates in CDS.

 

§9.556 Eligibility Criteria

 

(a) An applicant or individual is eligible for the TxHmL Program if:

(1) the applicant or individual meets the financial eligibility criteria as defined in subsection (b) of this section;

(2) the applicant or individual meets the eligibility criteria for the ICF/MR LOC I as defined in §9.238 of this chapter (relating to Level of Care I Criteria) as determined by DADS according to §9.560 of this subchapter (relating to Level of Care (LOC) Determination);

(3) the applicant or individual has had a determination of mental retardation performed in accordance with state law (THSC, Chapter 593, Admission and Commitment to Mental Retardation Services, Subchapter A) or has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions) before enrollment in the TxHmL Program;

(4) the applicant or individual has been assigned an LON 1, 5, 8, or 6 in accordance with §9.562 of this subchapter (relating to Level of Need (LON) Assignment);

(5) the applicant or individual has an IPC approved in accordance with §9.558 of this subchapter (relating to Individual Plan of Care (IPC));

(6) the applicant or individual is not enrolled in another waiver program under §1915(c) of the Social Security Act;

(7) the applicant or individual has chosen, or the applicant's or individual's LAR has chosen, participation in the TxHmL Program over participation in the ICF/MR Program;

(8) the applicant's or individual's service planning team concurs that the TxHmL Program services and, if applicable, non-TxHmL Program services for which the applicant or individual may be eligible are sufficient to ensure the applicant's or individual's health and welfare in the community; and

(9) the applicant or individual lives in the applicant's or individual's own home or family home.

(b) An applicant or individual is financially eligible for the TxHmL Program if the applicant or individual:

(1) is categorically eligible for Supplemental Security Income (SSI) benefits;

(2) has once been eligible for and received SSI benefits and continues to be eligible for Medicaid as a result of protective coverage mandated by federal law;

(3) is under 20 years of age and:

(A) is financially the responsibility of DFPS in whole or in part; and

(B) is being cared for in a foster home or group home:

(i) that is licensed or certified and supervised by DFPS or a licensed public or private nonprofit child placing agency; and

(ii) in which a foster parent is the primary caregiver residing in the home;

(4) is currently receiving Medicaid for Youth Transitioning Out of Foster Care (Transitional Medicaid) because the applicant or individual formerly received foster care through DFPS and was under the financial responsibility of DFPS; or

(5) is a member of a family who receives full Medicaid benefits as a result of qualifying for Temporary Assistance for Needy Families.

 

§9.557 Calculation of Co-payment

 

(a) The method for determining an individual's or couple's co-payment is described in subsection (b) of this section and documented on HHSC's Waiver Program Co-Pay Worksheet.

(b) The co-payment amount is determined by HHSC and is the individual's or couple's remaining income after all allowable expenses have been deducted.

(1) The co-payment amount is applied only to the cost of home and community-based services funded through the TxHmL Program and specified on each individual's IPC.

(2) The co-payment must not exceed the cost of services actually delivered.

(3) The co-payment must be paid by the individual or couple, authorized representative, or trustee directly to the program provider in accordance with the HHSC determination.

(4) When calculating the co-payment amount for an individual or couple whose income exceeds the maximum personal needs allowance, the following are deducted:

(A) the personal needs allowance, which must be equivalent to 300% of the current Supplemental Security Income benefit;

(B) the cost of the maintenance needs of the individual's or couple's dependent children, which is an amount equivalent to the Temporary Assistance for Needy Families (TANF) basic monthly grant for children or a spouse with children, using the recognizable needs amounts in the TANF Budgetary Allowances Chart; and

(C) the costs incurred for medical or remedial care that are necessary but are not subject to payment by Medicare, Medicaid, or any other third party, including the cost of health insurance premiums, deductibles, and co-insurance.

 

§9.558 Individual Plan of Care (IPC)

 

(a) An initial IPC must be developed for each applicant in accordance with §9.567 of this subchapter (relating to Process for Enrollment) and reviewed and revised for each individual whenever the individual's needs for services and supports change, but no less than annually, in accordance with §9.568 of this subchapter (relating to Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs), and Levels of Need (LONs) for Enrolled Individuals).

(b) The IPC must specify the type and amount of each service component to be provided to the individual, as well as services and supports to be provided by other non-TxHmL Program sources during the IPC year. The type and amount of each service component must be supported by:

(1) documentation that non-TxHmL Program sources for the service component are unavailable and the service component supplements rather than replaces natural supports or non-TxHmL Program services;

(2) assessments of the individual that identify specific service components necessary for the individual to continue living in the community, to ensure the individual's health and welfare in the community, and to prevent the individual's admission to institutional services; and

(3) documentation of the deliberations and conclusions of the service planning team that the TxHmL Program service components are necessary for the individual to live in the community; are necessary to prevent the individual's admission to institutional services, and are sufficient, when combined with services or supports available from non-TxHmL Program sources (if applicable), to ensure the individual's health and welfare in the community.

(c) Before submission to DADS, an individual's IPC must be signed and dated by the required service planning team members indicating concurrence that the services recommended in the IPC meet the requirements of subsection (b) of this section.

(d) DADS reviews a submitted initial, revised, or renewal IPC and approves, modifies, or does not approve the IPC. DADS does not approve an IPC having a total cost that exceeds the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS.

(e) If the IPC is submitted for approval electronically, the submitted IPC must contain information identical to that on the signed copy of the IPC.

(f) DADS may review an IPC at any time to determine if the type and amount of each service component specified in the IPC are appropriate. The service coordinator must submit documentation supporting the IPC to DADS in accordance with a request from DADS for documentation.

 

§9.559 Request to Increase Service Category Limits

 

(a) If the cost of either service category included on an IPC submitted to DADS exceeds the service category limits described in §9.554(g)(1) and (2) of this subchapter (relating to Description of the TxHmL Program) but the total annual cost of the IPC does not exceed the combined cost limit specified in Appendix C of the TxHmL Program waiver application approved by CMS, an individual's service coordinator must request from DADS an increase in the appropriate service category limit.

(1) The service coordinator must submit the request in writing.

(2) The written request must be accompanied by documentation meeting the requirements of

§9.558(b) of this subchapter (relating to Individual Plan of Care (IPC)).

(b) DADS reviews the request and approves or denies it.

(c) DADS may approve the request if the increase is determined necessary to protect the individual's health and welfare or to prevent the individual's admission to institutional services.

(d) DADS denies a request for an increase to the Professional and Technical Support Service Category if the request, if granted, would result in:

(1) more than $6,000 per IPC year for adaptive aids;

(2) more than $7,500 per IPC year for minor home modifications;

(3) more than $300 per IPC year for additional minor home modifications or minor home modification maintenance if the lifetime limit has been reached; or

(4) more than $1,000 per IPC year for dental treatment.

(e) As part of its review of the request, DADS reviews the individual's IPC in accordance with §9.558(d) of this subchapter.

(f) If DADS denies a request to increase a service category limit, DADS:

(1) notifies the individual's service coordinator; and

(2) notifies the individual or LAR of the individual's right to request a fair hearing in accordance with §9.571 of this subchapter (relating to Fair Hearings).

 

§9.560 Level of Care (LOC) Determination

 

(a) An MRA must request an LOC determination for an applicant or individual by electronically submitting a completed MR/RC Assessment to DADS, indicating the recommended LOC. The electronically transmitted MR/RC Assessment must contain information identical to that on the signed MR/RC Assessment.

(b) DADS makes an LOC determination in accordance with §9.237(c) of this chapter (relating to Level of Care).

(c) Information on the MR/RC Assessment must be supported by current data obtained from standardized evaluations and formal assessments that measure physical, emotional, social, and cognitive factors.

(d) The MRA must maintain the signed MR/RC Assessment and documentation supporting the recommended LOC in the applicant's or individual's record.

(e) DADS approves and enters the appropriate LOC into the automated billing and enrollment system or sends written notification to the service coordinator that an LOC has been denied.

(f) An LOC determination is valid for 364 calendar days after the LOC effective date determined by DADS.

 

§9.561 Lapsed Level of Care (LOC)

 

(a) To reinstate authorization for payment for days when services were delivered to an individual without a current LOC determination, an MRA must electronically submit to DADS an MR/RC Assessment for each period of time for which there was a lapsed LOC according to DADS procedures.

(b) The MRA must maintain in the individual's record:

(1) a copy of the individual's most recent MR/RC Assessment approved by DADS; and

(2) an MR/RC Assessment identical to that submitted in accordance with subsection (a) of this section for each period of time for which there was a lapsed LOC.

(c) DADS does not grant a request for reinstatement of an LOC determination:

(1) to establish program eligibility;

(2) to renew an LOC determination;

(3) to obtain an LOC determination for a period of time for which an LOC has been denied;

(4) to revise an LON; or

(5) for a period of time for which an individual's IPC is or was not current.

 

§9.562 Level of Need (LON) Assignment

 

(a) An MRA must request DADS to assign an LON for an applicant or individual by electronically transmitting a completed MR/RC Assessment to DADS, indicating the recommended LON and, as appropriate, submitting supporting documentation in accordance with §9.563(b) and (c) of this subchapter (relating to DADS' Review of Level of Need (LON)).

(b) The MRA must maintain the applicant's or individual's Inventory for Client and Agency Planning (ICAP) Assessment Booklet supporting the recommended LON in the applicant's or individual's record and other documentation supporting the requested LON, including:

(1) the individual's PDP, including the deliberations and conclusions of the applicant's or individual's service planning team;

(2) assessments and interventions by qualified professionals; and

(3) behavioral intervention plans.

(c) If an LON 9 is recommended, the MRA must maintain documentation that proves:

(1) the applicant or individual exhibits extremely dangerous behavior that could be life threatening to the applicant or individual or to others;

(2) a written behavior intervention plan has been implemented that meets DADS guidelines and is based on ongoing written data, targets the extremely dangerous behavior with individualized objectives, and specifies intervention procedures to be followed when the extremely dangerous behavior occurs;

(3) management of the applicant's or individual's behavior requires a person to exclusively and constantly supervise the individual during the individual's waking hours, which must be at least 16 hours per day;

(4) the person supervising the individual has no other duties or activities during the period of supervision; and

(5) the individual's MR/RC Assessment if correctly scored with a "2" in the Behavior section.

(d) DADS assigns an LON for an individual based on the individual's ICAP service level score, information reported on the individual's MR/RC Assessment, and required supporting documentation. Documentation supporting a recommended LON must be submitted to DADS in accordance with DADS guidelines.

(e) DADS assigns one of five LONs in accordance with §9.161 of this chapter (relating to Level of Need Assignment).

 

§9.563 DADS' Review of Level of Need (LON)

 

(a) DADS may review a recommended or assigned LON at any time to determine if it is appropriate. If DADS reviews an LON, documentation supporting the LON must be submitted by the MRA to DADS in accordance with DADS' request. Based on its review, DADS may modify an LON.

(b) If an LON 9 is requested, DADS may review documentation supporting the requested LON.

(c) Documentation supporting a recommended LON described in subsection (b) of this section must be submitted by the MRA to DADS in accordance with this subchapter and received by DADS within seven calendar days after the MRA has electronically transmitted the recommended LON.

(d) Within 21 calendar days after receiving the supporting documentation, DADS:

(1) requests additional documentation;

(2) electronically approves the recommended LON and establishes the effective date; or

(3) sends written notification that the recommended LON has been denied.

(e) DADS reviews any additional documentation submitted in accordance with DADS' request and electronically approves the recommended LON or sends written notification to the MRA that the recommended LON has been denied.

 

§9.566 Notification of Applicants

 

(a) DADS notifies an MRA, in writing, of a TxHmL Program vacancy in the MRA's local service area and directs the MRA to offer the program vacancy to the applicant:

(1) whose name is not coded in the Client Assignment and Registration System (CARE) as having previously declined an offer to enroll in the TxHmL Program or as having been determined ineligible for the TxHmL Program and is:

(A) whose registration date, assigned in accordance with §9.165(1) of this chapter (relating to Maintenance of HCS Program Waiting List), is earliest on the statewide waiting list for the HCS Program as maintained by DADS; or

(B) whose registration date, assigned in accordance with §9.165(1) of this chapter, is earliest on the local service area waiting list for the HCS Program as maintained by the MRA in accordance with §9.165 of this chapter; or

(2) whose name is not coded in CARE as having been determined ineligible for the TxHmL Program and who is receiving services from the MRA that are funded by general revenue in an amount that would allow DADS to fund the services through the TxHmL Program.

(b) The MRA must make the offer of program vacancy in writing and deliver it to the applicant or LAR by regular United States mail or by hand delivery.

(c) The MRA must include in a written offer that is made in accordance with subsection (a) of this section:

(1) a statement that:

(A) if the applicant or LAR does not respond to the offer of the program vacancy within 30 calendar days after the MRA's written offer:

(i) the MRA withdraws the offer of the program vacancy; and

(ii) the MRA codes the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment; and

(B) if the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant or LAR declines the offer of the program vacancy, the MRA terminates those services that are similar to services provided under the TxHmL Program;

(2) information relating to the time frame requirements described in subsection (e)(2)-(3) of this section using the Deadline Notification form, which is available at http://www.dads.state.tx.us; and

(3) a statement that whether the applicant or LAR responds to the offer of program vacancy or chooses or declines participation in the TxHmL Program, the applicant's name remains on the HCS Program waiting list without change to the applicant's registration date.

(d) If an applicant or LAR responds to an offer of program vacancy, the MRA must:

(1) provide the applicant, LAR, and, if the LAR is not a family member, at least one family member (if possible) both an oral and a written explanation of the services and supports for which the applicant may be eligible, including the ICF/MR Program (both state mental retardation facilities and community-based facilities), waiver programs authorized under §1915(c) of the Social Security Act, and other community-based services and supports using the Explanation of Services and Supports document which is available at http://www.dads.state.tx.us/business/mental_retardation/mrla/index.html; and

(2) give the applicant or LAR the TxHmL Verification of Freedom of Choice form, which is available at http://www.dads.state.tx.us/business/mental_retardation/forms/index.html to document the applicant's choice regarding the TxHmL Program and ICF/MR Program.

(e) The MRA must withdraw an offer of a program vacancy made to an applicant or LAR and code the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment in accordance with the Mental Retardation Services and Supports Interest List Policy and Procedures Manual if:

(1) within 30 calendar days after the MRA's offer made to the applicant or LAR in accordance with subsection (a) of this section, the applicant or LAR does not respond to the offer of the program vacancy;

(2) within seven calendar days after the applicant or LAR receives the TxHmL Verification of Freedom of Choice form from the MRA in accordance with subsection (d)(2) of this section, the applicant or LAR does not document the choice of TxHmL Program services over the ICF/MR Program using the TxHmL Verification of Freedom of Choice form; or

(3) within 30 calendar days after the applicant or LAR has received the contact information regarding all available program providers in the MRA's local service area in accordance with §9.567(d)(1) of this subchapter (relating to Process for Enrollment), the applicant or LAR does not document a choice of a program provider using the Documentation of Provider Choice form.

(f) If the MRA withdraws an offer of a program vacancy made to an applicant and codes the applicant's name in CARE as having "declined" the offer of TxHmL Program enrollment in accordance with subsection (e) of this section, the MRA must notify the applicant or LAR of such actions, in writing, by certified United States mail.

(g) If the applicant is currently receiving services from the MRA that are funded by general revenue and the applicant declines the offer of the program vacancy, the MRA must terminate those services that are similar to services provided under the TxHmL Program.

(h) If the MRA terminates an applicant's services in accordance with subsection (g) of this section, the MRA must notify the applicant or LAR of the termination, in writing, by certified United States mail and provide an opportunity for a review in accordance with §2.46 of this title (relating to Notification and Appeals Process).

(i) The MRA must retain in the applicant's record:

(1) the TxHmL Verification of Freedom of Choice form documenting the applicant's or LAR's choice of services;

(2) the Documentation of Provider Choice form documenting the applicant's or LAR's choice of program provider; and

(3) any correspondence related to the offer of a program vacancy.

 

§9.567 Process for Enrollment

 

(a) If an applicant or LAR chooses participation in the TxHmL Program, the MRA must assign a service coordinator who develops, in conjunction with the service planning team, a PDP. At a minimum, the PDP must include the following:

(1) a description of the services and supports the applicant requires to continue living in the applicant's own home or family home;

(2) a description of the applicant's current existing natural supports and non-TxHmL Program services that will be available if the applicant is enrolled in the TxHmL Program;

(3) a description of individual outcomes to be achieved through TxHmL Program service components and justification for each service component to be included in the IPC;

(4) documentation that the type and amount of each service component included in the applicant's IPC do not replace existing natural supports or non-TxHmL Program sources for the service components for which the applicant may be eligible;

(5) a description of actions and methods to be used to reach identified service outcomes, projected completion dates, and person(s) responsible for completion;

(6) a statement that the applicant was provided the information regarding CDS as required by subsection (b) of this section;

(7) if the applicant chooses to participate in CDS, a description of the service components provided through CDS, as required by subsection (e) of this section; and

(8) if the applicant chooses to participate in CDS, a description of the applicant's service back-up plan, as required by subsection (e) of this section.

(b) The MRA must:

(1) inform the applicant or LAR of the applicant's right to participate in CDS and discontinue participation in CDS at any time, except as provided in

§41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) inform the applicant or LAR that:

(A) except as provided in subparagraph (B) of this paragraph, the applicant or LAR may choose to have one or more service components provided through CDS; and

(B) if the applicant is receiving community support and respite and chooses to have one of these service components provided through CDS, the other service component must also be provided through CDS;

(3) provide the applicant or LAR a copy of Forms 1581, 1582, and 1583, which are available at  https://hhs.texas.gov/laws-regulations/forms and which contain information about CDS, including a description of financial management services and support consultation;

(4) provide an oral explanation of the information contained in Forms 1581, 1582, and 1583 to the applicant or LAR; and

(5) provide the applicant or LAR the opportunity to choose to participate in CDS and document the applicant's or LAR's choice on Form 1584, which is available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS.

(c) The MRA must compile and maintain information necessary to process the applicant's or LAR's request for enrollment in the TxHmL Program.

(1) The MRA must complete an MR/RC Assessment.

(A) The MRA must:

(i) determine or validate a determination that the applicant has mental retardation in accordance with Chapter 5, Subchapter D of this title (relating to Diagnostic Eligibility for Services and Supports — Mental Retardation Priority Population and Related Conditions); or

(ii) verify that the individual has been diagnosed by a licensed physician as having a related condition as defined in §9.203 of this chapter (relating to Definitions).

(B) The MRA must administer the Inventory for Client and Agency Planning (ICAP) or validate a current ICAP and recommend an LON assignment to DADS in accordance with §9.562 of this subchapter (relating to Level of Need (LON) Assignment).

(2) The MRA must develop a proposed IPC with the applicant or LAR based on the PDP and §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components).

(d) For applicants notified of a program vacancy in accordance with §9.566 of this subchapter (relating to Notification of Applicants), the MRA:

(1) provides names and contact information to the applicant or LAR regarding all available program providers in the MRA's local service area (i.e., program providers operating below their service capacity as identified in the Client Assignment and Registration System (CARE));

(2) reviews the proposed IPC with potential program providers selected by the applicant or the LAR;

(3) arranges for meetings or visits with potential program providers as desired by the applicant or the LAR;

(4) ensures that the applicant's or LAR's choice of a program provider is documented, signed by the individual or LAR, and retained by the MRA in the applicant's record; and

(5) negotiates and finalizes the proposed IPC with the selected program provider.

(e) If an applicant or LAR chooses to participate in CDS, the MRA must:

(1) provide names and contact information to the applicant or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the applicant's or LAR's choice of CDSA on Form 1584;

(3) document, in the applicant's PDP, a description of the service component provided through CDS; and

(4) document, in the applicant's PDP, a description of the applicant's service back-up plan.

(f) When the selected program provider and CDSA, if applicable have agreed to deliver those services delineated on the IPC, the MRA transmits to DADS enrollment information, including the completed MR/RC Assessment, the proposed IPC, and, if applicable, a request for an increase in a service category limit as described in §9.559 of this subchapter (relating to Request to Increase Service Category Limits). DADS notifies the applicant or LAR, the selected program provider and CDSA, if applicable, and the MRA of its approval or denial of the applicant's program enrollment based on the eligibility criteria described in §9.556 (relating to Eligibility Criteria).

(g) If a selected program provider initiates services before DADS' notification of enrollment approval, the program provider may not be reimbursed in accordance with §9.573(a)(11)(K) of this subchapter (relating to Reimbursement).

 

§9.568 Revisions and Renewals of Individual Plans of Care (IPCs), Levels of Care (LOCs), and Levels of Need (LONs) for Enrolled Individuals

 

(a) At least annually, and before the expiration of an individual's IPC, the service planning team and the program provider must review the PDP and IPC to determine whether individual outcomes and services previously identified remain relevant.

(1) The service coordinator, in collaboration with the service planning team, initiates revisions to the IPC in response to changes in the individual's needs and identified outcomes as documented in the current PDP.

(2) The service coordinator must submit annual reviews and necessary revisions of the IPC, including any request for an increase in a service category limit as described in §9.559 of this subchapter (relating to Request to Increase Service Category Limits), to DADS for approval and retain documentation as described in §9.567 of this subchapter (relating to Process for Enrollment) and §9.558 of this subchapter (relating to Individual Plan of Care (IPC)).

(b) The service coordinator must submit annual evaluations of LOC or revisions of LOC to DADS for approval in accordance with §9.560 of this subchapter (relating to Level of Care (LOC) Determination).

(c) The MRA must re-administer the ICAP to an individual in accordance with paragraph (1) of this subsection and must submit an MR/RC Assessment to DADS recommending a revision of the individual's LON assignment if the ICAP results indicate a change of the individual's LON assignment may be appropriate.

(1) The ICAP must be re-administered three years after an individual's enrollment and every third year thereafter unless, before that date:

(A) changes in the individual's functional skills or behavior occur that are not expected to be of short duration or cyclical in nature; or

(B) the individual's skills and behavior are inconsistent with the individual's assigned LON.

(2) As appropriate, the service coordinator must submit supporting documentation to DADS in accordance with §9.563 of this subchapter(relating to DADS' Review of Level of Need (LON)).

(3) The MRA must retain in the individual's record results and recommendations of individualized assessments and other pertinent records documenting the recommended LON assignment.

 

§9.569 Coordination of Transfers

 

(a) An individual moving to the local service area of a different MRA or the LAR may request to transfer to a TxHmL Program provider in the new service area. The service coordinator from the receiving MRA must:

(1) coordinate with the individual or LAR and the current MRA to facilitate selection of a TxHmL Program provider in the receiving area;

(2) provide information to assist the individual or LAR regarding TxHmL Program providers in the area;

(3) determine an effective date for the transfer in conjunction with the individual or LAR, the current TxHmL Program provider, and the receiving TxHmL Program provider; and

(4) review the current IPC with the individual or LAR and the receiving TxHmL Program provider and negotiate and finalize the IPC.

(b) If an individual or LAR chooses to transfer to a TxHmL Program provider within the current MRA's local service area, the service coordinator must:

(1) coordinate with the individual or LAR, the current TxHmL Program provider, and the receiving TxHmL Program provider to facilitate the transfer;

(2) review the current IPC with the individual or LAR and the receiving TxHmL Program provider and initiate any changes, if needed; and

(3) determine an effective date for transfer in conjunction with the individual or LAR, current TxHmL Program provider and the receiving TxHmL Program provider.

(c) An individual's IPC year will not be changed upon transfer to another TxHmL Program provider.

 

§9.570 Permanent Discharge from the TxHmL Program and Suspension of TxHmL Program Services

 

(a) An individual may be permanently discharged from the TxHmL Program if:

(1) the individual no longer meets the eligibility criteria specified in §9.556 of this subchapter (relating to Eligibility Criteria);

(2) the individual or LAR requests permanent discharge; or

(3) the individual or LAR refuses to cooperate in the delivery or planning of services and:

(A) such refusal is documented by the program provider and the service coordinator; and

(B) the service coordinator has explained to the individual or LAR in writing that such refusal may result in discharge from the TxHmL Program.

(b) DADS may propose permanent discharge of an individual at its own initiation or based on an MRA's request for permanent discharge of an individual.

(c) To request permanent discharge of an individual by DADS, the individual's service coordinator must, within 14 calendar days of determining that one of the criteria in subsection (a) of this section is met, submit a written request containing the following information to DADS and provide a copy of the request to the individual or LAR:

(1) the reason permanent discharge is requested;

(2) a discharge plan documenting, as appropriate:

(A) that, before submission of the request for permanent discharge, the individual or LAR was informed of the individual's option to transfer to another program provider and the consequences of permanent discharge for receiving future TxHmL Program services; and

(B) the service linkages that are in place following the individual's discharge from the TxHmL Program; and

(3) if permanent discharge is recommended for the reason stated in subsection (a)(3) of this section:

(A) a description of the action by the individual or LAR demonstrating refusal to cooperate in the delivery or planning of services and the effect of such action on the planning or delivery of services;

(B) a description of the action by the program provider and service coordinator, including face-to-face meetings between the service coordinator and individual or LAR, to resolve the circumstances causing the individual's or LAR's refusal to cooperate; and

(C) a copy of the written explanation sent by the service coordinator to the individual or LAR explaining the consequences of refusal to cooperate.

(d) If DADS proposes to permanently discharge an individual, DADS sends a written discharge notification to the individual or LAR, the program provider, and the MRA indicating the effective date of the discharge and the individual's right to a fair hearing in accordance with §9.571 of this subchapter (relating to Fair Hearings).

(e) If the reason for the proposed permanent discharge is that the individual no longer meets the eligibility criteria described in §9.556(a)(5) and (8) of this subchapter, DADS instructs the service coordinator to:

(1) inform the individual or LAR that DADS, based on availability, offers the individual a program vacancy in the HCS Program in accordance with §9.164(a)(3) of this chapter (relating to Process for Enrollment of Applicants); and

(2) offer to assist the individual or LAR to apply for other services for which the individual may be eligible including other home and community-based service programs and ICF/MR Program services.

(f) If an individual is temporarily admitted to one of the following settings, DADS suspends TxHmL Program services during that admission:

(1) a hospital;

(2) an ICF/MR licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 252 or certified by DADS;

(3) a nursing facility licensed or subject to being licensed in accordance with Texas Health and Safety Code, Chapter 242;

(4) a residential child-care operation licensed or subject to being licensed by DFPS;

(5) a facility licensed or subject to being licensed by the Department of State Health Services;

(6) a facility operated by the Department of Assistive and Rehabilitative Services; or

(7) a residential facility operated by the Texas Youth Commission, a jail, or a prison.

 

§9.571 Fair Hearings

 

An applicant or individual whose request for eligibility for the TxHmL Program is denied or is not acted upon with reasonable promptness, or whose TxHmL Program services have been terminated, suspended, or reduced by DADS, or the applicant's or individual's LAR is entitled to a fair hearing in accordance with Subchapter G of this chapter (relating to Medicaid Fair Hearings).

 

§9.572 Other Program Provider Requirements

 

Program providers must comply with requirements of the Omnibus Budget Reconciliation Act of 1990, 42 United States Code §1396a(w)(1), regarding advanced directives under state plans for medical assistance.

 

§9.573 Reimbursement

 

(a) Program provider reimbursement.

(1) DADS pays the program provider for service components as follows:

(A) Community support, nursing, respite, day habilitation, employment assistance, supported employment, behavioral support, and specialized therapies are paid for in accordance with the reimbursement rate for the specific service component.

(B) Adaptive aids, minor home modifications, and dental treatment are paid for based on the actual cost of the item or service and an allowed requisition fee.

(2) The program provider must accept DADS' payment for a service component as payment in full for the service component.

(3) If the program provider disagrees with the enrollment date of an individual as determined by DADS, the program provider must notify DADS in writing of its disagreement, including the reasons for the disagreement, within 180 days after the end of the month in which the program provider receives the enrollment approval letter. DADS reviews the information submitted by the program provider and notifies the program provider, the MRA, and the individual or LAR of its determination regarding the individual's enrollment date.

(4) The program provider must prepare and submit claims for service components in accordance with this subchapter, the TxHmL Provider Agreement, and the TxHmL Service Definitions and Billing Guidelines.

(5) The program provider must submit an initial claim for a service component as follows:

(A) Community support, nursing, respite, day habilitation, employment assistance, supported employment, behavioral support, and specialized therapies must be electronically transmitted to DADS via the automated enrollment and billing system.

(B) Adaptive aids, minor home modifications, and dental treatment must be submitted in writing to DADS for entry into the automated enrollment and billing system.

(6) The program provider must submit a claim for a service component to DADS by the latest of the following dates:

(A) within 95 calendar days after the end of the month in which the service component was provided;

(B) within 45 calendar days after the date of the enrollment approval letter issued by DADS; or

(C) within 95 calendar days after the end of the month in which the program provider obtains from the MRA a dated response from a non-TxHmL Program source for which the individual may be eligible, refusing or denying a correctly submitted request for payment for or provision of the service component.

(7) If an individual is temporarily or permanently discharged from the TxHmL Program, the program provider may submit a claim for a service component provided on the day of the individual's discharge.

(8) If DADS rejects a claim for adaptive aids, minor home modifications, or dental treatment, the program provider may submit a corrected claim to DADS. The corrected claim must be received by DADS within 180 days after the end of the month in which the service component was provided or within 45 days after the date of the notification of the rejected claim, whichever is later.

(9) If the program provider submits a claim for an adaptive aid or dental treatment, the program provider must submit documentation obtained from the MRA demonstrating that sources of payment other than the TxHmL Program for which the individual may be eligible, including Medicare, Medicaid (such as Texas Health Steps and Home Health), a state rehabilitation agency, the public school system, and private insurance, denied a request for payment. Such documentation must include evidence that a proper, complete, and timely request for payment or provision of the service component was made to the other payment source and that payment or provision of the service was denied.

(10) If the program provider submits a claim for an adaptive aid that costs $500 or more or for a minor home modification that costs $1,000 or more, the program provider must submit an individualized assessment conducted by a professional qualified to assess whether the aid or modification is necessary and appropriate to address the individual's needs and other documentation in accordance with DADS instructions.

(11) DADS does not pay the program provider for a service component or recoups any payments made to the program provider for a service component if:

(A) the individual receiving the service component was, at the time the service component was provided, ineligible for the TxHmL Program or Medicaid benefits, or was an inpatient of a hospital, nursing facility, or intermediate care facility for persons with mental retardation;

(B) the service component was not included on the signed and dated IPC of the individual in effect at the time the service component was provided;

(C) the service component provided did not meet the service definition as described in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components) or was not provided in accordance with the TxHmL Service Definitions and Billing Guidelines;

(D) the service component was not documented in accordance with the TxHmL Service Definitions and Billing Guidelines;

(E) the claim for the service component was not prepared and submitted in accordance with the TxHmL Service Definitions and Billing Guidelines;

(F) documentation as required by paragraph (10) of this subsection was not submitted by the program provider;

(G) DADS determines that the service component would have been paid for by a source other than the TxHmL Program;

(H) the service component was provided by a service provider who did not meet the qualifications to provide the service component as described in the TxHmL Service Definitions and Billing Guidelines;

(I) the service component was not provided in accordance with a signed and dated IPC meeting the requirements set forth in §9.558 of this subchapter (relating to Individual Plan of Care (IPC);

(J) the service component was not provided in accordance with the PDP;

(K) the service component was provided before the individual's enrollment date into the TxHmL Program; or

(L) the service component was not provided.

(12) The program provider must refund to DADS any overpayment made to the program provider within 60 days after the program provider's discovery of the overpayment or receipt of a notice of such discovery from DADS, whichever is earlier.

(13) Payments by DADS to a program provider are not withheld in the event the MRA erroneously fails to submit a renewal of an enrolled individual's LOC or IPC and the program provider continues to provide services in accordance with the most recent IPC as approved by DADS.

(b) CDSA reimbursement. For an individual participating in CDS, DADS pays the CDSA for the service components listed in §9.554(g) of this subchapter (relating to Description of the TxHmL Program) that are provided through CDS, in accordance with the reimbursement rate established by HHSC.

(c) Billing and payment reviews.

(1) DADS conducts billing and payment reviews to monitor a program provider's compliance with this subchapter and the TxHmL Program Service Definitions and Billing Guidelines. DADS conducts such reviews in accordance with the TxHmL Billing and Payment Review Protocol set forth in the TxHmL Program Service Definitions and Billing Guidelines. As a result of a billing and payment review, DADS may:

(A) recoup payments from a program provider; and

(B) based on the amount of unverified claims, require a program provider to develop and submit, in accordance with DADS instructions, a corrective action plan that improves the program provider's billing practices.

(2) A corrective action plan required by DADS in accordance with paragraph (1)(B) of this subsection must:

(A) include:

(i) the reason the corrective action plan is required;

(ii) the corrective action to be taken;

(iii) the person responsible for taking each corrective action; and

(iv) a date by which the corrective action will be completed that is no later than 90 calendar days after the date the program provider is notified the corrective action plan is required;

(B) be submitted to DADS within 30 calendar days after the date the program provider is notified the corrective action plan is required; and

(C) be approved by DADS before implementation.

(3) Within 30 calendar days after the corrective action plan is received by DADS, DADS notifies the program provider if the corrective action plan is approved or if changes to the plan are required.

(4) If DADS requires a program provider to develop and submit a corrective action plan in accordance with paragraph (1)(B) of this subsection and the program provider requests an administrative hearing for the recoupment in accordance with §9.575 of this chapter (relating to Program Provider's Right to Administrative Hearing), the program provider is not required to develop or submit a corrective action plan while a hearing decision is pending. DADS notifies the program provider if the requirement to submit a corrective action plan or the content of such a plan changes based on the outcome of the hearing.

(5) If the program provider does not submit the corrective action plan or complete the required corrective action within the time frames described in paragraph (2) of this subsection, DADS may impose a vendor hold on payments due to the program provider under the program provider agreement until the program provider takes the corrective action.

(6) If the program provider does not submit the corrective action plan or complete the required corrective action within 30 calendar days after the date a vendor hold is imposed in accordance with paragraph (5) of this subsection, DADS may terminate the program provider agreement.

 

§9.574 Record Retention

 

(a) A program provider must retain original records described in this subchapter necessary to disclose the extent of the service components provided by the program provider or required by the program provider agreement and, on request, provide DADS, at no cost to DADS, any such records and any information regarding claims filed by the program provider until the latest of the following occurs:

(1) six years elapse from the date the records were created;

(2) any audit exception or litigation involving the records is resolved; or

(3) the individual becomes 21 years of age.

(b) An MRA must retain original records described in this subchapter necessary to disclose the extent of the services provided to the individual and, on request, provide DADS, at no cost to DADS, any such records until the latest of the following occurs:

(1) six years elapse from the date the records were created;

(2) any audit exception or litigation involving the records is resolved; or

(3) the individual becomes 21 years of age.

 

§9.575 Program Provider's Right to Administrative Hearing

 

A program provider may request an administrative hearing in accordance with Subchapter B of this chapter (relating to Adverse Actions), if DADS takes or proposes to take the following action:

(1) vendor hold;

(2) contract termination;

(3) recoupment of payments made to the program provider; or

(4) denial of a program provider's request for payment.

 

§9.576 Program Provider Certification and Review

 

(a) The program provider must be in continuous compliance with the certification principles contained in this subchapter.

(b) DADS conducts an on-site certification review of the program provider to evaluate evidence of the program provider's compliance with certification principles. Based on its review, DADS takes action as described in §9.577 of this subchapter (relating to Corrective Action and Program Provider Sanctions).

(c) Following the initial on-site certification review by DADS, conducted in accordance with Subchapter Q of this chapter (relating to Enrollment of Medicaid Waiver Program Providers), DADS conducts an on-site certification review at least annually.

(d) DADS certifies a program provider for a period of 365 calendar days after the date of an initial or annual certification review.

(e) DADS may conduct announced or unannounced reviews of the program provider at any time.

(f) During any review, including a follow-up review or a review in which corrective action from a previous review is being evaluated, DADS may review the TxHmL Program services provided to any individual to determine if the program provider is in compliance with the certification principles.

(g) DADS conducts an exit conference at the end of all on-site reviews, at a time and location determined by DADS, to inform the program provider of DADS' findings, determination, any proposed actions, and any actions required of the program provider.

 

§9.577 Corrective Action and Program Provider Sanctions

 

(a) If DADS determines that the program provider is in compliance with all certification principles at the end of the review exit conference, DADS certifies the program provider and no action by the program provider is required.

(b) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, but the program provider is in compliance with all principles found out of compliance in the previous review, the program provider must submit a corrective action plan to DADS within 14 calendar days after the program provider receives DADS' certification report.

(1) The corrective action plan must specify a date by which corrective action will be completed, and such date must be no later than 90 calendar days after the certification review exit conference.

(2) If the program provider submits a corrective action plan in accordance with this subsection and the plan is approved by DADS, DADS certifies the program provider. DADS evaluates the program provider's required corrective action during DADS' first review of the program provider after the corrective action completion date.

(3) If the program provider does not submit a corrective action plan in accordance with this subsection or the plan is not approved by DADS, DADS initiates termination of the program provider's program provider agreement, implements vendor hold against the program provider and, in conjunction with the local MRA, coordinates the provision of alternate services for the individuals receiving TxHmL Program services from the program provider.

(c) If DADS determines that the program provider is out of compliance with 10 percent or fewer of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS:

(1) certifies the program provider, if the program provider:

(A) presents evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submits a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance; or

(2) does not certify the program provider and initiates termination of the program provider's program provider agreement, if the provider does not:

(A) present evidence before the end of the current certification period that it is in compliance with all principles found out of compliance in the previous review; and

(B) submit a corrective action plan in accordance with subsection (b) of this section addressing any new principles found out of compliance.

(d) If DADS determines that the program provider is out of compliance with between 10 and 20 percent of the certification principles at the end of the review exit conference, including any principles found out of compliance in the previous review, DADS does not certify the program provider and applies Level I sanctions against the program provider.

(1) Under Level I sanctions, the program provider must complete corrective action within 30 calendar days after the review exit conference, and DADS conducts an on-site follow-up review within 30 to 45 calendar days after the review exit conference.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider, if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of and implements vendor hold against the program provider if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(3) If DADS implements vendor hold against the provider, DADS conducts a second on-site follow-up review between 30 and 45 calendar days after the effective date of the vendor hold. Based on the results of the review, DADS:

(A) certifies the program provider and removes the vendor hold if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with the principles found out of compliance.

(e) If DADS determines that the program provider is out of compliance, at the end of the review exit conference, with 20 percent or more of the certification principles, including any principles found out of compliance in the previous review, DADS does not certify the program provider, implements vendor hold, and applies Level II sanctions against the program provider.

(1) Under Level II sanctions:

(A) the program provider must complete corrective action within 30 calendar days after the review exit conference; and

(B) DADS conducts an on-site follow-up review within 30 to 45 calendar days after the required correction date.

(2) Based on the results of the follow-up review, DADS:

(A) certifies the program provider and removes the vendor hold, if DADS determines that the program provider is in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance; or

(B) denies certification of the program provider and initiates termination of the program provider's program provider agreement if DADS determines that the program provider is not in compliance, by the end of the follow-up review exit conference, with all principles found out of compliance.

(f) Notwithstanding subsections (b)-(e) of this section, if DADS determines that a hazard to the health, safety, or welfare of one or more individuals exists and the hazard is not eliminated before the end of the review exit conference, DADS denies certification of the program provider, initiates termination of the program provider agreement, implements vendor hold against the program provider, and, in conjunction with the local MRA, coordinates the provision of alternate services for individuals receiving TxHmL Program services from the program provider. A hazard to health, safety, or welfare is any condition that could result in life-threatening harm, serious injury, or death of an individual or other person within 48 hours. If hazards are identified by DADS during a review and the program provider corrects the hazards before the end of the review exit conference, the correction is designated in DADS' report of the review.

(g) Notwithstanding subsections (b)-(e) of this section, if DADS determines that a program provider's failure to comply with one or more of the certification principles is of a serious or pervasive nature, DADS may, at its discretion, take any action described in this section against the program provider. Serious or pervasive failure to comply includes but is not limited to conditions that have potentially dangerous consequences for an individual served by the program provider or conditions that affect a large percentage of individuals served by the program provider.

(h) Notwithstanding subsections (b)-(e) of this section, if DADS determines that a program provider has falsified documentation used to demonstrate compliance with this subchapter, DADS may, at its discretion, take any action described in this section against the program provider.

 

§9.578 Program Provider Certification Principles: Service Delivery

 

(a) A program provider must serve an eligible applicant or individual who selects the program provider unless the program provider's enrollment has reached its service capacity as identified in the Client Assignment and Registration System (CARE).

(b) The program provider must maintain a separate record for each individual enrolled with the provider. The individual's record must include:

(1) a copy of the individual's current PDP as provided by the MRA;

(2) a copy of the individual's current IPC as provided by the MRA; and

(3) a copy of the individual's current MR/RC Assessment as provided by the MRA.

(c) The program provider must:

(1) participate as a member of the service planning team, if requested by the individual or LAR;

(2) develop, in conjunction with the individual, the individual's family or LAR written support methodologies that describe actions and methods to be used to accomplish outcomes identified in the PDP; and

(3) at least 14 calendar days before the implementation date of the IPC, submit such methodologies to the service coordinator.

(d) The program provider must ensure that service provision is accomplished in accordance with the individual's PDP and the support methodologies described in subsection (c)(2) of this section.

(e) The program provider must ensure that services and supports provided to an individual assist the individual to achieve the outcomes identified in the PDP.

(f) The program provider must ensure that an individual's progress or lack of progress toward achieving the individual's identified outcomes is documented in observable, measurable terms that directly relate to the specific outcome addressed, and that such documentation is available for review by the service coordinator.

(g) The program provider must communicate to the individual's service coordinator changes needed to the individual's PDP or IPC as such changes are identified by the program provider or communicated to the program provider by the individual or LAR.

(h) The program provider must ensure that an individual who performs work for the program provider is paid at a wage level commensurate with that paid to a person without disabilities who would otherwise perform that work. The program provider must comply with local, state, and federal employment laws and regulations.

(i) The program provider must ensure that an individual provides no training, supervision, or care to another individual unless the individual is qualified and compensated in accordance with local, state and federal regulations.

(j) The program provider must ensure that an individual who produces marketable goods and services during habilitation activities is paid at a wage level commensurate with that paid to a person without disabilities who would otherwise perform that work. Compensation must be paid in accordance with local, state, and federal regulations.

(k) The program provider must offer an individual opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and the routines of other members of the community.

(l) The program provider must offer an individual of retirement age opportunities to participate in activities appropriate to individuals of the same age and provide supports necessary for the individual to participate in such activities consistent with the individual's or LAR's choice and the individual's PDP.

(m) The program provider must offer an individual choices and opportunities for accessing and participating in community activities including employment opportunities and experiences available to peers without disabilities and provide supports necessary for the individual to participate in such activities consistent with an individual's or LAR's choice and the individual's PDP.

(n) The program provider must provide all TxHmL Program service components:

(1) authorized in an individual's IPC;

(2) in accordance with the applicable service component definition as specified in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components); and

(3) in accordance with an individual's PDP.

(o) If respite is provided in a location other than an individual's family home, the location must be acceptable to the individual or LAR and provide an accessible, safe, and comfortable environment for the individual that promotes the health and welfare of the individual.

(1) Respite may be provided in the residence of another individual receiving TxHmL Program services or similar services if the program provider has obtained written approval from the individuals living in the residence or their LARs and:

(A) no more than three individuals receiving TxHmL Program services and other persons receiving similar services are provided services at any one time; or

(B) no more than four individuals receiving TxHmL Program services and other persons receiving similar services are provided services in the residence at any one time and the residence is approved in accordance with §9.188 of this chapter (relating to DADS' Approval of Residences).

(2) Respite may be provided in a respite facility if the program provider provides or intends to provide respite to more than three individuals receiving TxHmL Program services or persons receiving similar services at the same time; and

(A) the program provider has obtained written approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances; and

(B) the program provider obtains such written approval from the local fire authority having jurisdiction on an annual basis.

(3) Respite must not be provided in an institution such as an ICF/MR, skilled nursing facility, or hospital.

 

§9.579 Certification Principles: Qualified Personnel

 

(a) The program provider must ensure the continuous availability of trained and qualified employees and contractors to provide the service components in an individual's IPC.

(b) The program provider must comply with applicable laws and regulations to ensure that:

(1) its operations meet necessary requirements; and

(2) its employees or contractors possess legally necessary licenses, certifications, registrations, or other credentials and are in good standing with the appropriate professional agency before performing any function or delivering services.

(c) The program provider must employ or contract with a service provider of the individual's or LAR's choice if that service provider:

(1) is qualified to provide the service component;

(2) provides the service within the direct services portion of the applicable TxHmL Program rate; and

(3) contracts with or is employed by the program provider.

(d) The program provider must implement and maintain a plan for initial and periodic training of personnel that assures personnel are:

(1) trained and qualified to deliver services as required by the current needs and characteristics of the individual to whom they deliver services;

(2) knowledgeable of:

(A) acts that constitute abuse, neglect, or exploitation of an individual, as defined in Chapter 711, Subchapter A of this title (relating to Introduction);

(B) the requirement to report acts of abuse, neglect, or exploitation, or suspicion of such acts, to DFPS in accordance with §9.580(e) of this subchapter (relating to Certification Principles: Quality Assurance); and

(C) methods to prevent the occurrence of abuse, neglect, and exploitation.

(e) The program provider must implement and maintain personnel practices that safeguard an individual against infectious and communicable diseases.

(f) The program provider must prevent:

(1) conflicts of interest between program provider personnel and an individual;

(2) financial impropriety toward an individual;

(3) abuse, neglect, or exploitation of an individual; and

(4) threats of harm or danger toward an individual's possessions.

(g) The program provider must employ or contract with a person who has a minimum of three years work experience in planning and providing direct services to people with mental retardation or other developmental disabilities, as verified by a written professional reference, to oversee the provision of direct services to an individual.

(h) The program provider must ensure that the provider of community support, day habilitation, employment assistance, supported employment, or respite is at least 18 years of age and:

(1) has a high school diploma or a certificate recognized by a state as the equivalent of a high school diploma; or

(2) has documentation of a proficiency evaluation of experience and competence to perform the job tasks that includes:

(A) written competency-based assessment of the ability to document service delivery and observations of an individual to be served; and

(B) at least three personal references from persons not related by blood that indicate the ability to provide a safe, healthy environment for an individual being served.

(i) The program provider must ensure that the provider of community support, day habilitation, employment assistance, supported employment, or respite provides transportation in accordance with applicable state laws.

(j) The program provider must ensure that at least one of the following service components is provided by a person who is employed by, not contracting with, the program provider:

(1) community support;

(2) day habilitation;

(3) supported employment; or

(4) respite.

(k) The program provider must ensure that dental treatment is provided by a dentist currently licensed by the Texas State Board of Dental Examiners.

(l) The program provider must ensure that nursing is provided by a nurse who is currently licensed as a registered nurse or as a vocational nurse by the Board of Nurse Examiners for the State of Texas.

(m) The program provider must ensure that adaptive aids meet applicable standards of manufacture, design, and installation.

(n) The program provider must ensure that the provider of behavioral support is currently:

(1) licensed as a psychologist by the Texas State Board of Examiners of Psychologists;

(2) licensed as a psychological associate by the Texas State Board of Examiners of Psychologists and working under the supervision of a licensed psychologist;

(3) licensed as a psychological associate by the Texas State Board of Examiners of Psychologists or certified as a DADS-certified psychologist in accordance with §5.161 of this title (relating to TDMHMR-Certified Psychologist) and working in a public agency; or

(4) certified as a behavior analyst by the Behavior Analyst Certification Board, Inc.

(o) The program provider must ensure that minor home modifications are delivered by contractors who provide the service in accordance with state and local building codes and other applicable regulations.

(p) The program provider must ensure that a provider of specialized therapies is licensed by the appropriate State of Texas licensing authority for the specific therapeutic service provided by the provider.

(q) The program provider must comply with THSC, Chapters 250 and 253, including taking the following action regarding certain applicants, employees, and contractors:

(1) obtain criminal history record information that relates to the applicant, employee, or contractor and refrain from employing or contracting with, or immediately discharge, a person who has been convicted of an offense that bars employment under THSC,§250.006, or an offense that the program provider determines is a contraindication to the person's employment or contract with the program provider;

(2) search the Nurse Aide Registry maintained by DADS in accordance with THSC, Chapter 250, and refrain from employing or contracting with, or immediately discharge, a person who is designated in the registry as having abused, neglected, or mistreated a consumer of a facility or has misappropriated a consumer's property; and

(3) search the Employee Misconduct Registry maintained by DADS in accordance with THSC, Chapter 253, and refrain from employing or contracting with, or immediately discharge, a person who is designated in the registry as having abused, neglected, or exploited a consumer or has misappropriated a consumer's property.

 

§9.580 Certification Principles: Quality Assurance

 

(a) The program provider must:

(1) assist the individual or LAR in understanding the requirements for participation in the TxHmL Program and include the individual or LAR in planning service provision and any changes to the plan for service provision if changes become necessary;

(2) assist and cooperate with the individual's or LAR's request to transfer to another program provider;

(3) assist the individual to access public accommodations or services available to all citizens;

(4) assist the individual to manage the individual's financial affairs upon documentation of the individual's or LAR's written request for such assistance;

(5) ensure that any restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(6) inform the individual or LAR about the individual's health, mental condition, and related progress;

(7) inform the individual or LAR of the name and qualifications of any person serving the individual and the option to choose among various available service providers;

(8) provide the individual or LAR access to TxHmL Program records, including, if applicable, financial records maintained on the individual's behalf, about the individual and the delivery of services by the program provider to the individual;

(9) assist the individual to communicate by phone or by mail during the provision of TxHmL Program services unless the service planning team has agreed to limit the individual's access to communicating by phone or by mail;

(10) assist the individual, as specified in the individual's PDP, to attend religious activities as chosen by the individual or LAR;

(11) ensure the individual is free from unnecessary restraints during the provision of TxHmL Program services;

(12) regularly inform the individual or LAR about the individual's or program provider's progress or lack of progress made in the implementation of the PDP;

(13) receive and act on complaints about the program services provided by the program provider;

(14) ensure that the individual is free from abuse, neglect, or exploitation by program provider personnel;

(15) provide active, individualized assistance to the individual or LAR in exercising the individual's rights and exercising self-advocacy, including:

(A) making complaints;

(B) registering to vote;

(C) obtaining citizenship information and education;

(D) obtaining advocacy services; and

(E) obtaining information regarding legal guardianship;

(16) provide the individual privacy during treatment and care of personal needs;

(17) include the individual's LAR in decisions involving the planning and provision of TxHmL Program services;

(18) inform the individual or LAR of the process for reporting a complaint to DADS or the MRA when the program provider's resolution of a complaint is unsatisfactory to the individual or LAR, including the DADS Office of Consumer Rights and Services telephone number to initiate complaints (1-800-458-9858) or the MRA telephone number to initiate complaints;

(19) inform the individual or LAR, orally and in writing, of the requirements described in paragraphs (1)-(18) of this subsection:

(A) when the individual is enrolled in the program provider's program;

(B) if the requirements described in paragraphs (1)-(18) of this subsection are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes;

(20) obtain an acknowledgement stating that the information described in paragraph (19) of this subsection was provided to the individual or LAR and that is signed by:

(A) the individual or LAR;

(B) the program provider staff person providing such information; and

(C) a third-party witness; and

(21) notify the individual's service coordinator of an individual's or LAR's expressed interest in CDS and document such notification.

(b) The program provider must make available all records, reports, and other information related to the delivery of TxHmL Program services as requested by DADS, other authorized agencies, or CMS and deliver such items, as requested, to a specified location.

(c) At least annually, the program provider must conduct a satisfaction survey of individuals, their families, and LARs, and take action regarding any areas of dissatisfaction.

(d) The program provider must publicize and make available a process for receiving complaints, and maintain a record of verifiable resolutions of complaints received from:

(1) individuals, their families, or LARs;

(2) the MRA;

(3) the program provider's personnel or service providers; and

(4) the general public.

(e) The program provider must ensure that:

(1) the individual and the LAR are informed of how to report allegations of abuse, neglect, or exploitation to DFPS and are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(2) all program provider personnel:

(A) are instructed to report to DFPS immediately, but not later than one hour after having knowledge or suspicion, that an individual has been or is being abused, neglected, or exploited; and

(B) are provided with the DFPS toll-free telephone number (1-800-647-7418) in writing; and

(C) report suspected abuse, neglect or exploitation as instructed.

(f) Upon suspicion that an individual has been or is being abused, neglected, or exploited or notification of an allegation of abuse, neglect or exploitation, the program provider must take necessary actions to secure the safety of the alleged victim, including:

(1) obtaining immediate and on-going medical and other appropriate supports for the alleged victim, as necessary;

(2) restricting access by the alleged perpetrator of the abuse, neglect, or exploitation to the alleged victim or other individuals pending investigation of the allegation, when an alleged perpetrator is an employee or contractor of the program provider; and

(3) notifying, as soon as possible but no later than 24 hours after the program provider reports or is notified of an allegation, the alleged victim, the alleged victim's LAR, and the MRA of the allegation report and the actions that have been or will be taken.

(g) The program provider personnel must cooperate with the DFPS investigation of an allegation of abuse, neglect, or exploitation, including:

(1) providing complete access to all TxHmL Program service sites owned, operated, or controlled by the program provider;

(2) providing complete access to individuals and program provider personnel;

(3) providing access to all records pertinent to the investigation of the allegation; and

(4) preserving and protecting any evidence related to the allegation in accordance with DFPS instructions.

(h) The program provider must:

(1) report the program provider's response to the finding of a DFPS investigation of abuse, neglect, or exploitation to DADS in accordance with DADS procedures within 14 calendar days of the program provider's receipt of the investigation findings;

(2) promptly, but not later than five calendar days from the program provider's receipt of the DFPS investigation finding, notify the alleged victim or LAR of:

(A) the investigation finding;

(B) the corrective action taken by the program provider if DFPS confirms that abuse, neglect, or exploitation occurred;

(C) the process to appeal the investigation finding as described in Chapter 711, Subchapter M of this title (relating to Requesting an Appeal if You are the Reporter, Alleged Victim, Legal Guardian, or with Advocacy, Incorporated); and

(D) the process for requesting a copy of the investigative report from the program provider; and

(3) upon request of the alleged victim or LAR, provide to the alleged victim or LAR a copy of the DFPS investigative report after concealing any information that would reveal the identity of the reporter or of any individual who is not the alleged victim.

(i) If the DFPS investigation confirms that abuse, neglect, or exploitation by program provider personnel occurred, the program provider must take appropriate action to prevent the recurrence of abuse, neglect or exploitation including, when warranted, disciplinary action against or termination of the employment of program provider personnel confirmed by the DFPS investigation to have committed abuse, neglect, or exploitation.

(j) In all respite facilities, the program provider must post in a conspicuous location:

(1) the name, address, and telephone number of the program provider;

(2) the effective date of the program provider agreement; and

(3) the name of the legal entity named on the program provider agreement.

(k) At least quarterly, the program provider must review incidents of confirmed abuse, neglect, or exploitation, complaints, temporary and permanent discharges, transfers, and unusual incidents to identify program operation modifications that will prevent the recurrence of such incidents and improve service delivery.

(l) A program provider must ensure that all personal information maintained by the program provider or its contractors concerning an individual, such as lists of names, addresses, and records created or obtained by the program provider or its contractor, is kept confidential, that the use or disclosure of such information and records is limited to purposes directly connected with the administration of the TxHmL Program, and is otherwise neither directly nor indirectly used or disclosed unless the written permission of the individual to whom the information applies or the individual's LAR is obtained before the use or disclosure.

(m) The program provider must ensure that:

(1) the individual or LAR has agreed in writing to all charges assessed by the program provider against the individual's personal funds before the charges are assessed; and

(2) charges for items or services are reasonable and comparable to the costs of similar items and services generally available in the community.

(n) The program provider must not charge an individual or LAR for costs for items or services reimbursed through the TxHmL Program.

(o) At the written request of an individual or LAR, the program provider:

(1) must manage the individual's personal funds entrusted to the program provider;

(2) must not commingle the individual's personal funds with the program provider's funds; and

(3) must maintain a separate, detailed record of all deposits and expenditures for the individual.

(p) When a behavioral support plan includes techniques that involve restriction of individual rights or intrusive techniques, the program provider must ensure that the implementation of such techniques includes:

(1) approval by the individual's service planning team;

(2) written consent of the individual or LAR;

(3) verbal and written notification to the individual or LAR of the right to discontinue participation in the behavioral support plan at any time;

(4) assessment of the individual's needs and current level/severity of the behavior targeted by the plan;

(5) use of techniques appropriate to the level/severity of the behavior targeted by the plan;

(6) a written behavior support plan developed by a psychologist or behavior analyst with input from the individual, LAR, the individual's service planning team, and other professional personnel;

(7) collection and monitoring of behavioral data concerning the targeted behavior;

(8) allowance for the decrease in the use of intervention techniques based on behavioral data;

(9) allowance for revision of the behavioral support plan when the desired behavior is not displayed or techniques are not effective;

(10) consideration of the effects of the techniques in relation to the individual's physical and psychological well-being; and

(11) at least annual review by the individual's service planning team to determine the effectiveness of the program and the need to continue the techniques.

(q) The program provider must report the death of an individual to the MRA and DADS by the end of the next business day following the death of the individual or the program provider's knowledge of the death and, if the program provider reasonably believes that the individual's LAR or family does not know of the individual's death, to the individual's LAR or family as soon as possible, but not later than 24 hours after the program provider learns of the individual's death.

(r) A program provider must enter critical incident data in CARE no later than 30 days after the last day of the month being reported.

 

§9.582 Compliance with TxHmL Program Principles for Mental Retardation Authorities (MRAs)

 

(a) An MRA participating in the TxHmL Program must be in continuous compliance with the TxHmL Program Principles for Mental Retardation Authorities as described in §9.583 of this subchapter (relating to TxHmL Program Principles for Mental Retardation Authorities).

(b) DADS conducts a compliance review at least annually of each MRA participating in the TxHmL Program.

(c) If any item of noncompliance remains uncorrected by the MRA at the time of the review exit conference, the MRA must, within 30 calendar days after the exit conference, submit to DADS a plan of correction with timelines to implement the plan after approval by DADS. DADS may take action as specified in the performance contract between the MRA and DADS if the MRA fails to submit or implement an approved plan of correction.

 

§9.583 TxHmL Program Principles for Mental Retardation Authorities

 

(a) An MRA must notify an applicant of a TxHmL Program vacancy in accordance with §9.566 of this subchapter (relating to Notification of Applicants).

(b) An MRA must process requests for enrollment in the TxHmL Program in accordance with §9.567 of this subchapter (relating to Process for Enrollment).

(c) An MRA must have a mechanism to ensure objectivity in the process to assist an individual or LAR in the selection of a program provider and a system for training all MRA staff who may assist an individual or LAR in such process.

(d) An MRA must ensure the development and completion of the initial IPC and all necessary assessments within 45 working days of the individual or LAR documenting the choice of TxHmL Program services over ICF/MR Program services in accordance with §9.566(d)(2) of this subchapter.

(e) An MRA must submit to DADS necessary documentation for an applicant's enrollment within 10 working days after the applicant's or LAR's selection of a program provider.

(f) An MRA must ensure that its employees and contractors possess legally necessary licenses, certifications, registrations, or other credentials and are in good standing with the appropriate professional agency before performing any function or delivering services.

(g) An MRA must ensure that an individual or LAR is informed orally and in writing of the following processes for filing complaints about service provision:

(1) processes for filing complaints with the MRA about the provision of service coordination; and

(2) processes for filing complaints about the provision of TxHmL Program services including:

(A) the telephone number of the MRA to file a complaint;

(B) the toll-free telephone number of DADS to file a complaint; and

(C) the toll-free telephone number of DFPS (1-800-647-7418) to file a complaint of abuse, neglect, or exploitation.

(h) An MRA must maintain for each individual:

(1) a current IPC;

(2) a current PDP;

(3) a current MR/RC Assessment; and

(4) current service information.

(i) For an individual receiving TxHmL Program services within the MRA's local service area, the MRA must provide the individual's program provider a copy of the individual's current PDP, IPC, and MR/RC Assessment.

(j) An MRA must employ service coordinators who:

(1) meet the minimum qualifications and staff training requirements specified in Chapter 2, Subchapter L of this title (relating to Service Coordination for Individuals with Mental Retardation); and

(2) have received training about the TxHmL Program, including the requirements of this subchapter and the TxHmL Program service components as specified in §9.555 of this subchapter (relating to Definitions of TxHmL Program Service Components).

(k) An MRA must ensure that a service coordinator:

(1) initiates, coordinates, and facilitates the person-directed planning process to meet the desires and needs as identified by an individual and LAR in the individual's PDP;

(2) coordinates the development and implementation of the individual's PDP;

(3) submits a correctly completed request for authorization of payment from non-TxHmL Program sources for which an individual may be eligible;

(4) coordinates and develops an individual's IPC based on the individual's PDP;

(5) coordinates and monitors the delivery of TxHmL Program and non-TxHmL Program services;

(6) integrates various aspects of services delivered under the TxHmL Program and through non-TxHmL Program sources;

(7) records each individual's progress;

(8) develops discharge and transfer plans, when necessary; and

(9) keeps records as they pertain to the implementation of an individual's PDP.

(l) An MRA must ensure that an individual or LAR is informed of the name of the individual's service coordinator and how to contact the service coordinator.

(m) A service coordinator must:

(1) assist the individual or LAR in exercising the legal rights of the individual as a citizen and as a person with a disability;

(2) assist the individual's LAR or family members to encourage the individual to exercise the individual's rights;

(3) inform the individual or LAR orally and in writing of:

(A) the eligibility criteria for participation in the TxHmL Program;

(B) the services and supports provided by the TxHmL Program and the limits of those services and supports; and

(C) the reasons an individual may be discharged from the TxHmL Program as described in §9.570 of this subchapter (relating to Permanent Discharge from the TxHmL Program);

(4) ensure that the individual and LAR participate in developing a personalized PDP and IPC that meet the individual's identified needs and service outcomes and that the individual's PDP is updated when the individual's needs or outcomes change but not less than annually;

(5) ensure that a restriction affecting the individual is approved by the individual's service planning team before the imposition of the restriction;

(6) ensure that the individual or LAR is informed of decisions regarding denial or termination of services and the individual's or LAR's right to request a fair hearing as described in §9.571 of this subchapter (relating to Fair Hearings);

(7) ensure that, if needed, the individual or LAR participates in developing a discharge plan that addresses assistance for the individual after the individual is discharged from the TxHmL Program; and

(8) inform the individual or LAR that the service coordinator will assist the individual or LAR to transfer the individual's TxHmL Program services from one program provider to another program provider as chosen by the individual or LAR.

(n) When a change to an individual's PDP or IPC occurs or is needed, the service coordinator must communicate the need for the change to the individual or LAR, the individual's program provider, and other appropriate persons as necessary.

(o) At least 30 calendar days before the expiration of an individual's IPC, the service coordinator must:

(1) update the individual's PDP in conjunction with the individual's service planning team; and

(2) submit the updated information to the program provider for completion of necessary support methodologies to be incorporated in the updated PDP.

(p) A service coordinator must:

(1) review the status of an individual who is temporarily discharged at least every 90 calendar days following the effective date of the temporary discharge and document in the individual's record the reasons for continuing the discharge; and

(2) if the temporary discharge continues 270 calendar days, submit written documentation of the 90, 180, and 270 calendar day reviews to DADS for review and approval to continue the temporary discharge status.

(q) A service coordinator must:

(1) inform the individual or LAR orally and in writing, of the requirements described in subsection (m) of this section:

(A) upon receipt of DADS approval of the enrollment of the individual;

(B) if the requirements described in subsection (m) of this section are revised;

(C) at the request of the individual or LAR; and

(D) if the legal status of the individual changes; and

(2) document that the information described in paragraph (1) of this subsection was provided to the individual or LAR.

(r) A service coordinator must, at least annually

(1) inform the individual or LAR of the individual's right to participate in CDS and discontinue participation in CDS at any time, except as provided in §41.405(a) of this title (relating to Suspension of Participation in CDS);

(2) provide the individual or LAR a copy of Forms 1581, 1582, and 1583, which are available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS, and which contain information about CDS, including financial management services and support consultation;

(3) provide an oral explanation of the information contained in Forms 1581, 1582, and 1583 to the individual or LAR; and

(4) provide the individual or LAR the opportunity to choose to participate in CDS and document the individual's choice on Form 1584, which is available at http://www.dads.state.tx.us/handbooks/forms/default.asp?HB=CDS.

(s) If an individual or LAR chooses to participate in CDS, the service coordinator must:

(1) provide names and contact information to the individual or LAR regarding all CDSAs providing services in the MRA's local service area;

(2) document the individual's or LAR's choice of CDSA on Form 1584;

(3) document, in the individual's PDP, a description of the service components provided through CDS; and

(4) document, in the individual's PDP, a description of the individual's service back-up plan.

(t) The service coordinator must document in the individual's PDP that the information described in subsections (r) and (s)(1) of this section was provided to the individual or LAR.

(u) For an individual participating in CDS, the MRA must recommend to DADS that financial management services and support consultation, if applicable, be terminated if the service coordinator determines that:

(1) the individual's continued participation in CDS poses a significant risk to the individual's health, safety or welfare; or

(2) the individual or LAR has not complied with Chapter 41, Subchapter B of this title (relating to Responsibilities of Employers and Designated Representatives).

(v) If an MRA makes a recommendation under subsection (u) of this section, the MRA must:

(1) submit the individual's IPC to DADS electronically; and

(2) submit the following, in writing, to the Department of Aging and Disability Services, Access and Intake, Program Enrollment, P.O. Box 149030, Mail Code W-354, Austin, Texas 78714-9030:

(A) a description of the service recommended for termination;

(B) the reasons why termination is recommended;

(C) a description of the attempts to resolve the issues before recommending termination; and

(D) other supporting documentation, as appropriate.

Appendices

Appendix I, TXHML, Mutually Exclusive Services

Appendix II, TXHML, HIV/AIDS in the Workplace

Appendix III, TXHML, Medicaid for the Elderly and People with Disabilities

Appendix IV, TXHML, List of Excluded Individuals and Entities (LEIE)

Appendix V, TXHML, Advance Directives

Appendix VI, TXHML, Appendix VI, Retired Information Letters

Revision 15-1; Effective December 11, 2015

 

 

The Department of Aging and Disability Services (DADS) will from time to time retire Information Letters (ILs) when policy has expired, retired or been replaced with new information.

Content in this handbook and the Texas Administrative Code (TAC) supersedes any previous ILs or similar guidance published by DADS. The ILs retired as a result are listed below. DADS recommends that providers remove these ILs from their records to ensure they reference the most current information. Any letters or program guidance issued prior to Internet accessibility is null and void, including policy previously sent by U.S. mail.

Number Title Date
Posted
Date
Removed
09-155 Personal Care Services (PCS) and Home and Community-based Services (HCS) or Texas Home Living (TxHmL) Program Services Replaced by IL 2015-71 12/14/2009 11/03/2015
09-153 Personal Care Services (PCS) and Waiver Services Replaced by IL 2015-71 10/30/2009 11/03/2015

Appendix VII, Approved Diagnostic Codes for Persons with Related Conditions List

View the Approved Diagnostic Codes for Persons with Related Conditions List at:

https://hhs.texas.gov/sites/default/files/documents/doing-business-with-hhs/providers/health/icd10-codes.pdf

Forms

Form Title
0702 Fax Cover Sheet for TxHmL and HCS
1572 Informacion en espanol Nursing Tasks Screening Tool
1581 Informacion en espanol Consumer Directed Services Option Overview
1582 Informacion en espanol Consumer Directed Services Responsibilities
1583 Informacion en espanol Employee Qualification Requirements
1584 Informacion en espanol Consumer Participation Choice
1586 Informacion en espanol Acknowledgement of Information Regarding Support Consultation Services in the Consumer Directed Services (CDS) Option
1592 RN Delegation Checklist
1740 Informacion en espanol Service Backup Plan
1741 Informacion en espanol Corrective Action Plan
1742 Service Backup Plan for HCS, TxHmL and CFC Services
1744 TxHmL/CFC Entrance Conference
1746 HCS/TxHmL/CFC Exit Conference
2124 Community Support Transportation Log
3598 Individual Transportation Plan
3610 Informal Review Request
3611 Involuntary Termination of Consumer Directed Services (CDS) Individual Plan of Care (IPC) Cover Sheet (HCS and TxHmL)
3612 Transfer Process Checklist
3615 Request to Continue Suspension of Waiver Program Services
3616 Request for Termination of Services Provided by HCS/TxHmL Waiver Provider
3617 Request for Transfer of Waiver Program Services
4116-Dental Dental Summary Sheet
4116-MHM-AA Minor Home Modification/Adaptive Aids Summary Sheet
4117 Supported Employment/Employment Assistance Service Delivery Log
4118 Respite Service Delivery Log
4120 Day Habilitation Service Delivery Log
5607 Review of DFPS Reports and ANE Trends
5608 Waiver Survey and Certification TxHmL DFPS Checklist
5611 Personnel Checklist
5842 TxHmL Financial Eligibility Information
8492 Random Sample Review of Nursing On-Call Required Submission of Documentation
8493 Notification Regarding a Death in HCS, TxHmL and DBMD Programs
8494 Notification Regarding An Investigation of Abuse, Neglect or Exploitation
8509 Unlicensed Personnel Tracking of Delegated Tasks
8510 HCS/TxHmL CFC PAS/HAB Assessment
8511 Understanding Program Eligibility
8572 TxHmL Individual Profile Information
8574 Administration of Medications by Unlicensed Personnel
8575 Notification of Local Authority (LA) Reassignment
8578 Intellectual Disability/Related Condition Assessment
8580 Request for Variance of Supported Employment - Employer Requirements
8581 Corrective Action Plan Form
8582 Individual Plan of Care - TxHmL/CFC
8583 Informacion en espanol HCS and TxHmL Program Contact Information
8584 Nursing Comprehensive Assessment
8586 Informacion en espanol TxHmL Service Coordination Notification
8599 Individual Plan of Care (IPC) Cover Sheet
8601 Informacion en espanol Verification of Freedom of Choice
8608 Sample Appeal Letter
8627 Request for Review of Individual Plan of Care (IPC) Cost Over Maximum Cost Ceiling Cover Sheet
8628 Request to Increase in Service Category Limits Worksheet
8662 Related Conditions Eligibility Screening Instrument

Informacion in espanol = form also available in Spanish.

Revisions, TXHML

Revision 18-1, Appendix VII Added

Revision Notice 18-1; Effective February 14, 2018

 

The following changes were made:

Adds Appendix VII, Approved Diagnostic Codes for Persons with Related Conditions List.

Revision 15-1, TXHML, Appendix Added

Revision Notice 15-1; Effective December 11, 2015

 

The following changes were made:

Adds Appendix VI, Retired Information Letters.

Revision 10-1, TXHML, Forms Table of Contents

Revision Notice 10-1; Effective June 25, 2010

 

This revision deletes obsolete forms from the Forms Table of Contents and adds the following forms and instructions:

Form 0702, Fax Cover Sheet for TxHmL and HCS

Form 3615, Request to Continue Suspension of Waiver Program Services

Form 3616, Request for Termination of Waiver Program Services

Form 3617, Request for Transfer of Waiver Program Services

Form 4116-Dental, Dental Summary Sheet

Form 4116-MHM-AA, Minor Home Modification/Adaptive Aids Summary Sheet

Form 8582-0610, Individual Plan of Care – TxHmL

Revision 08-1, TXHML, Cost Limits, Billing Practices

Revision Notice 08-1; Effective June 1, 2008

 

This revision deletes the specific monetary limits regarding service
component categories in the Texas Home Living (TxHmL) Program and
references the program waiver application approved by the Centers for
Medicare & Medicaid Services (CMS). The amendment describes the
types of institutional and congregate settings in which an individual
may not live and receive TxHmL Program services. The amendments also
place current billing and payment review practices into rule and permit
DADS to require a program provider to develop and submit, in accordance
with DADS instructions, a corrective action plan that improves the
program provider’s billing practices. The amendments allow DADS to take
discretionary sanction actions against a provider if the provider
falsifies documents to demonstrate compliance with the rule.

The following changes were made:

§9.553 adds definitions for "CARE," "critical incident data" and "own
home or family home," which specifies the institutional and congregate
settings that disqualify an individual from receiving TxHmL Program
services, and deletes the definitions of "family home" and "own home."

§9.554 removes the monetary cost limits for the Community Living
Service Category and Professional and Technical Support Service Category
and replaces them with references to Appendix C of the TxHmL Program
waiver application.

§9.556 updates terminology regarding eligibility criteria.

§9.558 removes the annual Individual Plan of Care (IPC) monetary cost
limit and replaces it with language referencing the combined cost limit
specified in the TxHmL Program waiver application approved by CMS.

§9.559 removes the annual IPC monetary cost limit and replaces it
with language referencing the combined cost limit specified in the TxHmL
Program waiver application approved by CMS.

§9.570 identifies the settings to which an individual may be
temporarily admitted, during which time DADS may suspend program
services. The amendment also revises the section title.

§9.573 places current billing practices into rule, references DADS
billing and payment review protocol, and allows DADS to require a
program provider to develop and submit, in accordance with DADS
instructions, a corrective action plan that improves the program
provider’s billing practices. The amendment adds provisions that allow
DADS to place a hold on vendor payments or terminate a program provider
agreement if a program provider does not submit a corrective action plan
or complete the required action. The amendment makes the TxHmL rules
consistent with the Home and Community-based Services Program rules.

§9.577 adds falsification of documentation as a reason DADS may take
discretionary sanctions against a program provider and clarifies the
time period in which DADS conducts a second on-site follow-up review.

§9.580 requires that a program provider record critical incident data
in the Client Assignment and Registration System within 30 days after
the last day of the month the incident is reported, consistent with a
requirement in the program provider agreement.

Contact Us, TXHML

For questions about the Texas Home Living Program, email: txhmlpolicy@hhsc.state.tx.us

For technical or accessibility issues with this handbook, email: Editorial_Services@hhsc.state.tx.us