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TITLE 40SOCIAL SERVICES AND ASSISTANCE
PART 1DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 49CONTRACTING FOR COMMUNITY SERVICES
SUBCHAPTER AAPPLICATION AND DEFINITIONS
RULE §49.102Definitions

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

  (1) AA--Adaptive aids.

  (2) Abuse--"Abuse" as defined by the statute or rule that governs the investigation of alleged abuse of an individual.

  (3) AFC--Adult foster care.

  (4) Applicant--A person seeking to obtain a contract.

  (5) Application denial period--A period of time during which HHSC denies a contract application submitted to HHSC.

  (6) Business day--Any day except a Saturday, a Sunday, or a national or state holiday listed in Texas Government Code §662.003(a) or (b).

  (7) CAS--Community attendant services.

  (8) CFC PAS/HAB--A Medicaid state plan service provided through the Community First Choice (CFC) Option, described in 1 Texas Administrative Code Chapter 354, Subchapter A, Division 27 (relating to Community First Choice), under a contract for:

    (A) the HCS Program;

    (B) the TxHmL Program;

    (C) a DSA in the CLASS Program; or

    (D) the DBMD program.

  (9) CFS--Continued family services.

  (10) Change of legal entity--An event that occurs when a contractor is required to obtain a new federal tax identification number.

  (11) Change of ownership--An event that occurs when:

    (A) as a result of a transfer or sale, at least 50 percent of the ownership of a contractor is held by one or more persons who owned less than 5 percent of the contractor before the transfer or sale; and

    (B) the contractor is not required to obtain a new federal tax identification number.

  (12) Choice list--A list of contracts under which an individual or LAR may choose to receive services.

  (13) CLASS Program--Community Living Assistance and Support Services Program.

  (14) Clean claim--In accordance with Code of Federal Regulations, Title 42, §447.45(b), a claim for services submitted by a contractor that can be processed without obtaining additional information from the contractor or a party other than HHSC, including a claim with errors originating in the Texas claims management system, but not including a claim from a contractor under investigation for fraud or abuse, or a claim under review for medical necessity.

  (15) CMA--Case management agency.

  (16) CMPAS--Consumer managed personal attendant services.

  (17) Contract--A written agreement between HHSC and another person that obligates the other person to provide a service to an individual in exchange for payment from HHSC. The term includes standard and provisional contracts.

  (18) Contractor--The person other than HHSC who is a party to a contract.

  (19) Contractual agreement--A written, legally binding agreement that is not a contract as defined in this section.

  (20) Controlling ownership interest--A direct ownership interest, an indirect ownership interest, or a combination of direct and indirect ownership interests, of 5 percent or more in an applicant or contractor.

  (21) Controlling person--A person who:

    (A) has a controlling ownership interest;

    (B) is a managing employee;

    (C) has been delegated the authority to obligate or act on behalf of an applicant or contractor;

    (D) is an officer or director of a corporation that is an applicant or contractor;

    (E) is a partner in a partnership that is an applicant or contractor;

    (F) is a member or manager in a limited liability company that is an applicant or contractor;

    (G) is a trustee or trust manager of a trust that is an applicant or contractor;

    (H) is a spouse of a person who is an applicant or contractor; or

    (I) because of a personal, familial, or other relationship with an applicant or contractor, is in a position of actual control or authority with respect to the applicant or contractor, regardless of the person's title.

  (22) Conviction--A determination of being found or proved guilty that:

    (A) is any of the following:

      (i) a judgment of conviction that has been entered by a federal, state or local court, regardless of whether:

        (I) there is a post-trial motion or an appeal pending; or

        (II) the judgment of conviction or other record relating to the criminal conduct has been expunged or otherwise removed;

      (ii) a finding of guilt made by a federal, state, or local court; or

      (iii) an acceptance of a plea of guilty or nolo contendere by a federal, state, or local court; and

    (B) does not include successful completion of a period of deferred adjudication community supervision and receipt of a dismissal and discharge in accordance with Texas Code of Criminal Procedure, Article 42.12, Section 5(c).

  (23) DADS--The Department of Aging and Disability Services.

  (24) DAHS--Day activity and health services.

  (25) Day--A calendar day, including weekends and holidays.

  (26) DBMD Program--Deaf Blind with Multiple Disabilities Program.

  (27) Desk review--A review by HHSC of a contractor's service delivery or business operation that takes place away from the contractor's administrative and service delivery sites, using records provided to HHSC by the contractor. The scope of the review is at the discretion of HHSC.

  (28) DFPS--The Department of Family and Protective Services.

  (29) Direct ownership interest--An interest in the ownership of an applicant or contractor as described in subparagraphs (A) and (B) of this paragraph.

    (A) Direct ownership interest is:

      (i) ownership of equity in the capital, stock, or profits of an applicant or contractor; or

      (ii) ownership in a mortgage, deed of trust, note, or other obligation secured by property of an applicant or contractor.

    (B) The percentage of direct ownership interest of an applicant or contractor, based on ownership of a mortgage, deed of trust, note, or other obligation, is determined by multiplying the percentage of ownership in the obligation by the percentage of the applicant's or contractor's assets used to secure the obligation. For example, ownership of 10 percent of a note secured by 60 percent of a contractor's or applicant's assets equals 6 percent direct ownership interest in the applicant or contractor (that is, 0.1 x 0.6 = 0.06).

  (30) DSA--Direct service agency.

  (31) Electronic record--Information that is stored in a medium having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities, and is retrievable in perceivable form.

  (32) Emergency response plan--A written plan that describes the actions that will be taken to protect individuals, including evacuation or sheltering-in-place, in the event of an emergency such as a fire or other man-made or natural disaster.

  (33) Exploitation--"Exploitation" as defined by the statute or rule that governs the investigation of alleged exploitation of an individual.

  (34) FC--Family care.

  (35) FMSA--Financial management services agency. An entity that contracts with HHSC to provide financial management services, as defined in §41.103 of this title (relating to Definitions).

  (36) Governmental entity--An agency or other entity of federal, state, or local government.

  (37) HCS Program--Home and Community-based Services Program.

  (38) HCSSA--Home and community support services agency.

  (39) HDM--Home delivered meals.

  (40) HHS list of exclusions--A list made before September 1, 2014, of individuals and entities prohibited from conducting business with DADS in any capacity for a specified period.

  (41) HHSC--The Texas Health and Human Services Commission.

  (42) Indirect ownership interest--An interest in the ownership of an applicant or contractor as described in subparagraphs (A) and (B) of this paragraph.

    (A) Indirect ownership interest is an ownership interest in a person that has a direct or indirect ownership interest in an applicant or contractor.

    (B) The percentage of indirect ownership interest is determined by multiplying the percentage of ownership interest in the person that has a direct ownership interest in the applicant or contractor by the percentage of direct ownership that the person has in the applicant or contractor. For example:

      (i) ownership of 10 percent of the stock of a corporation that owns 80 percent of the stock of an applicant or contractor equals 8 percent indirect ownership of the applicant or contractor (that is, 0.1 x 0.8 = 0.08); and

      (ii) ownership of 50 percent of the stock of a corporation that owns 10 percent of the stock of a corporation that owns 80 percent of the stock of an applicant or contractor equals 4 percent indirect ownership of the applicant or contractor (that is, 0.5 x 0.1 x 0.8 = 0.04).

  (43) Individual--A person who is enrolled in a program or service described in §49.101(a) of this subchapter.

  (44) LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a particular matter. The term may include a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

  (45) LEIE--List of excluded individuals and entities. In this context, "individual" does not have the meaning as defined in this section.

  (46) LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC in accordance with Texas Health and Safety Code, §533A.035.

  (47) Managing employee--A person who exercises operational or managerial control over, or who conducts the day-to-day operation of, an applicant or contractor.

  (48) Neglect--"Neglect" as defined by the statute or rule that governs the investigation of alleged neglect of an individual.

  (49) OHR--Out of home respite.

  (50) Paper record--Information that is stored on paper.

  (51) Person--A corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, natural person, or any other legal entity that can function legally, sue or be sued, and make decisions through agents.

  (52) Personal attendant--An employee or subcontractor of a contractor or an employee of a CDS employer who provides:

    (A) PHC;

    (B) FC;

    (C) CAS;

    (D) DAHS;

    (E) RC;

    (F) personal attendant services in the CMPAS Program;

    (G) habilitation or CFC PAS/HAB in the CLASS Program;

    (H) residential habilitation or CFC PAS/HAB in the DBMD Program;

    (I) chore services in the DBMD Program;

    (J) day habilitation in the DBMD Program;

    (K) supported home living or CFC PAS/HAB in the HCS Program; or

    (L) community support or CFC PAS/HAB in the TxHmL Program.

  (53) PHC--Primary home care.

  (54) Provisional contract--An initial contract that HHSC enters into in accordance with §49.208 of this chapter (relating to Provisional Contract Application Approval) that has a stated expiration date.

  (55) RC--Residential care.

  (56) Records--Paper records and electronic records.

  (57) Recoup--To reduce payments that are due to a contractor under a contract to satisfy a debt the contractor owes to HHSC but does not include making routine adjustments for prior overpayments to the contractor.

  (58) Referral hold--An action in which HHSC prohibits a contractor from, for a period of time determined by HHSC, providing services to an individual not receiving services from the contractor at the time the referral hold was imposed.

  (59) SFS--Support family services.

  (60) Signature authority--A person authorized to negotiate and execute a contract on behalf of a contractor as identified on the HHSC "Governing Authority Resolution" form.

  (61) SSPD--Special Services to Persons with Disabilities (SSPD) Program.

  (62) Standard contract--A contract that HHSC enters into in accordance with §49.209 of this chapter (relating to Standard Contract) that does not have a stated expiration date.

  (63) Subcontract--An agreement, other than a contract, between a contractor and another person that obligates the other person to provide all or part of the goods, services, work, or materials required of the contractor in a contract.

  (64) Subcontractor--The person other than a contractor who is a party to a subcontract.

  (65) TAS--Transition assistance services.

  (66) TxHmL Program--Texas Home Living Program.

  (67) Vendor hold--A temporary suspension of payments that are due to a contractor under a contract.

  (68) Volunteer--A person who works for a contractor without compensation, other than reimbursement for actual expenses.


Source Note: The provisions of this §49.102 adopted to be effective September 1, 2014, 39 TexReg 6637; amended to be effective March 20, 2016, 41 TexReg 1970; amended to be effective September 28, 2016, 41 TexReg 7514; amended to be effective September 1, 2018, 43 TexReg 5230

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