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TITLE 40SOCIAL SERVICES AND ASSISTANCE
PART 1DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 9INTELLECTUAL DISABILITY SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER NTEXAS HOME LIVING (TXHML) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
RULE §9.578Program 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 DADS data system.

(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 and, if CFC PAS/HAB is included on the PDP, a copy of the completed DADS HCS/TxHmL CFC PAS/HAB Assessment form as provided by the LIDDA;

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

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

(c) The program provider must:

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

  (2) develop:

    (A) in conjunction with the individual, the individual's family or LAR, an implementation plan for:

      (i) TxHmL Program services, except for transportation as a community support activity; and

      (ii) CFC services, except for CFC support management; and

    (B) a transportation plan, if transportation as a community support activity is included on the PDP.

(d) The program provider must provide:

  (1) TxHmL Program services in accordance with an individual's PDP, IPC, implementation plan, transportation plan, §9.555 of this subchapter (relating to Description of TxHmL Program Services), and Appendix C of the TxHmL Program waiver application approved by CMS and found at www.dads.state.tx.us; and

  (2) CFC services in accordance with an individual's PDP, IPC, and implementation plan.

(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 opportunity 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) A program provider must develop a written service backup plan for a TxHmL Program service or a CFC service identified on the PDP as critical to meeting an individual's health and safety.

  (1) A service backup plan must:

    (A) contain the name of the service;

    (B) specify the period of time in which an interruption to the service would result in an adverse effect to the individual's health or safety; and

    (C) in the event of a service interruption resulting in an adverse effect as described in subparagraph (B) of this paragraph, describe the actions the program provider will take to ensure the individual's health and safety.

  (2) A program provider must ensure that:

    (A) if the action in the service backup plan required by paragraph (1) of this subsection identifies a natural support, that the natural support receives pertinent information about the individual's needs and is able to protect the individual's health and safety; and

    (B) a person identified in the service backup plan, if paid to provide the service, meets the qualifications described in this subchapter.

  (3) If a service backup plan is implemented, a program provider must:

    (A) discuss the implementation of the service backup plan with the individual and the service providers or natural supports identified in the service backup plan to determine whether or not the plan was effective;

    (B) document whether or not the plan was effective; and

    (C) revise the plan if the program provider determines the plan was ineffective.

(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 or CFC 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 or CFC 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 CFC 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) If respite is provided in a camp setting, the program provider must ensure the camp is accredited by the American Camp Association.

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

(p) The program provider must ensure that nursing is provided in accordance with:

  (1) Texas Occupations Code, Chapter 301 (Nursing Practice Act);

  (2) 22 TAC Chapter 217 (relating to Licensure, Peer Assistance, and Practice);

  (3) 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); and

  (4) 22 TAC Chapter 225 (relating to RN Delegation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions).

(q) A program provider may determine that an individual does not require a nursing assessment if:

  (1) nursing services are not on the individual's IPC and the program provider has determined that no nursing task will be performed by the program provider's unlicensed service provider as documented on DADS form "Nursing Task Screening Tool"; or

  (2) a nursing task will be performed by the program provider's unlicensed service provider and a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician.

(r) If an individual or LAR refuses a nursing assessment described in §9.555(c)(10)(A) of this subchapter, the program provider must not:

  (1) provide nursing services to the individual; or

  (2) provide community support, day habilitation, employment assistance, supported employment, respite, or CFC PAS/HAB to the individual unless:

    (A) an unlicensed service provider does not perform nursing tasks in the provision of the service; and

    (B) the program provider determines that it can ensure the individual's health, safety, and welfare in the provision of the service.

(s) If an individual or LAR refuses a nursing assessment and the program provider determines that the program provider cannot ensure the individual's health, safety, and welfare in the provision of a service as described in subsection (r) of this section, the program provider must:

  (1) immediately notify the individual or LAR and the individual's service coordinator, in writing, of the determination; and

  (2) include in the notification required by paragraph (1) of this subsection the reasons for the determination and the services affected by the determination.

(t) If notified by the service coordinator that the individual or LAR refuses the nursing assessment after the discussion with the service coordinator as described in §9.583(j)(6) of this subchapter (relating to TxHmL Program Principles for LIDDAs), the program provider must immediately send the written notification described in subsection (s) of this section to DADS.

(u) The program provider must, if a physician delegates a medical act to an unlicensed service provider in accordance with Texas Occupations Code, Chapter 157, and the program provider has concerns about the health or safety of the individual in performance of the medical act, communicate the concern to the delegating physician and take additional steps as necessary to ensure the health and safety of the individual.

(v) The program provider must:

  (1) for an applicant 21 years of age or older residing in a nursing facility who is enrolling in the TxHmL Program:

    (A) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator;

    (B) assist in the implementation of the applicant's transition plan as described in the plan; and

    (C) be physically present for the pre-move site review and assist the service coordinator during the review as requested; and

  (2) for 365 calendar days after an individual 21 years of age or older has enrolled in the TxHmL Program from a nursing facility or has enrolled in the TxHmL Program as a diversion from admission to a nursing facility:

    (A) be physically present for each post-move monitoring visit and assist the service coordinator during the visit as requested;

    (B) assist in the implementation of the individual's transition plan as described in the plan;

    (C) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator; and

    (D) within one calendar day after becoming aware of an event or condition that may put the individual at risk of admission or readmission to a nursing facility, notify the service planning team of the event or condition.

(w) A program provider must ensure that CFC PAS/HAB is provided in accordance with the individual's PDP, IPC, and implementation plan.

(x) CFC ERS must be provided in accordance with this subsection.

  (1) A program provider must ensure that CFC ERS is provided only to an individual who:

    (A) lives alone, who is alone for significant parts of the day, or has no regular caregiver for extended periods of time; and

Cont'd...

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