Proposed new §263.503, Residential Agreements, requires a program provider to have a residential agreement with an individual or LAR if the individual is living in a three-person residence or four-person residence, and to ensure that the individual or LAR has a residential agreement with the service provider of host home/companion care if the individual is living in a residence in which host home/companion care is provided. In addition, the proposed rule describes the required contents of the residential agreement and requires the program provider to give the individual or LAR at least three calendar days to review, request changes, and sign the residential agreement; and to provide a copy of the residential agreement to the individual or LAR. The proposed rule also describes the requirements for a program provider and service coordinator if an individual or LAR is delinquent in payment of room or board and the program provider wants to evict the individual. Further, the proposed rule describes the criteria that must exist before a program provider proceeds to evict an individual. The proposed rule describes the requirements for a program provider and service coordinator after an individual is evicted. Also, the proposed rule describes the required actions for a program provider or service coordinator if the program provider determines that the provision in the residential agreement regarding decoration of the individual's bedroom needs to be modified.

New Subchapter G, Reimbursement by HHSC

Proposed new §263.601, Program Provider Reimbursement, describes how a program provider is reimbursed for services provided in the HCS Program. The proposed rule describes the basis for payment of service by HHSC to a program provider and requires a program provider to submit a service claim that meets certain requirements including 40 TAC §49.311, relating to Claims Payment, and the HCS Program Billing Requirements or the CFC Billing Requirements for HCS and TxHmL Program Providers. The proposed rule explains when a program provider may submit a claim for a service provided during the period of the individual's suspension or after termination of the service. The proposed rule requires a claim submitted for an adaptive aid that costs $500 or more or for a minor home modification that costs $1,000 or more to be supported by a written assessment from a licensed professional. The proposed rule describes reasons that HHSC does not pay for or recoups payments for a service, including a program provider not complying with 40 TAC §49.305, relating to Records; providing CFC PAS/HAB or in-home day habilitation to an individual with a residential type of "own/family home" or providing in-home respite and the service claim does not match the electronic visit verification (EVV) visit transaction. The proposed rule provides that HHSC conducts fiscal compliance reviews and describes the actions HHSC may take as a result of a review.

New Subchapter H, Transfer, Denials, Suspension, Reduction, and Termination

Proposed new §263.701, Process for Individual to Transfer to a Different Program Provider or FMSA, describes the process for an individual to transfer to a different program provider or FMSA.

Proposed new §263.702, Process for Individual to Receive a Service Through the CDS Option that the Individual is Receiving from a Program Provider, describes the process for an individual to transfer services received through the CDS option to a program provider.

Proposed new §263.703, Denial of a Request for Enrollment into the HCS Program, describes the basis and process for HHSC to deny an individual's request for enrollment into the HCS Program.

Proposed new §263.704, Denial of HCS Program Services or CFC Services, describes the basis and process for HHSC to deny an HCS Program Service or CFC Service.

Proposed new §263.705, Suspension of HCS Program Services and CFC Services, describes the basis and process for HHSC to suspend an individual's HCS Program services and CFC services.

Proposed new §263.706, Reduction of HCS Program Services or CFC Services, describes the basis and process for HHSC to reduce an individual's HCS Program service or CFC service.

Proposed new §263.707, Termination of HCS Program Services and CFC Services with Advance Notice, describes the basis and process for HHSC to terminate an individual's HCS Program Services and CFC Services when advance notice of the termination is required.

Proposed new §263.708, Termination of HCS Program Services and CFC Services Without Advance Notice, describes the basis and process for HHSC to terminate an individual's HCS Program Services and CFC Services when advance notice of the termination is not required.

New Subchapter I, Hearings

Proposed new §263.801, Fair Hearing, describes the requirement for applicants and individuals to receive a notice of the right to request a fair hearing in accordance with 1 TAC Chapter 357, Subchapter A, relating to Uniform Fair Hearing Rules.

Proposed new §263.802, Program Provider's Right to Administrative Hearing, describes when a program provider may request an administrative hearing and that the program provider may receive an administrative hearing for a dispute involving a LON assignment only if reconsideration was requested by the program provider in accordance with proposed new §263.108.

New Subchapter J, LIDDA Requirements

Proposed new §263.901, LIDDA Requirements for Providing Service Coordination in the HCS Program, describes requirements for the LIDDA in the provision of service coordination to applicants and individuals. The proposed rule includes several provisions that are not part of the current rule regarding LIDDA requirements. Specifically, the proposed rule changes the timeframe requirement for a service coordinator to complete a comprehensive non-introductory person-centered service planning training from two years to within six months after the service coordinator's date of hire unless an extension of the six-month timeframe is granted by HHSC. The proposed rule describes when the service coordinator is required to provide an individual, LAR, or family member with the Your Rights In the Home and Community-based Services (HCS) Program booklet, and the HHSC HCS Rights Addendum form, and an oral explanation of the rights in the booklet and the form. The proposed rule requires the service coordinator to ensure that the updated finalized PDP is signed by the individual or LAR. In addition, the proposed rule requires the service coordinator to ensure the service planning team determines whether an individual who does not have a guardian would benefit from having a guardian or a less restrictive alternative to a guardian. Further, the proposed rule requires the service coordinator to update an individual's PDP with specific information described in the rule, if a service coordinator is notified by the program provider that a modification to a program provider owned or controlled residential setting requirement is needed based on a specific assessed need of an individual. The proposed rule also describes the requirements for a service coordinator to inform applicants and individuals about responsibilities related to EVV.

Proposed new §263.902, Permanency Planning, describes the required activities a LIDDA must perform regarding permanency planning for an applicant under 22 years of age moving from a family setting and requesting supervised living or residential support.

Proposed new §263.903, Referral from HHSC to DFPS, provides that if HHSC is unable to locate a parent or LAR of an individual, HHSC refers the case to the Department of Family and Protective Services (DFPS).

New Subchapter K, Declaration of Disaster

Proposed new §263.1000, Exceptions to Certain Requirements During Declaration of Disaster, provides that HHSC may allow program providers and service coordinators to use one or more of the exceptions described in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. The rule provides that HHSC notifies program providers and LIDDAs if it allows an exception to be used and the date an allowed exception must no longer be used. The proposed rule also defines "disaster area."

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the proposed rule that allows an individual to use $300 per IPC year for maintenance of a MHM before reaching the lifetime limit for MHMs.

The effect on state government for each year of the first five years the proposed rule is in effect is an estimated cost of $5,186 in fiscal year (FY) 2022, $5,186 in FY 2023, $5,186 in FY 2024, $5,186 in FY 2025, and $5,186 in FY 2026.

In addition, Trey Wood has determined that for each year of the first five years that the rules will be in effect, there may be additional costs to state government if an individual in a disaster area needs to exceed the service limits for adaptive aids and MHMs if an adaptive aid or MHM is damaged or destroyed as a result of the disaster. There may also be additional costs to state government if HHSC denies a residential service until an individual or LAR pays the amount of delinquent room or board, from preparing and sending written notices of the denial, and to pay the cost for conducting a fair hearing, if requested by the individual or LAR. However, HHSC lacks sufficient information to provide an estimate of these costs.

Trey Wood has also determined that for each year of the first five years that the rules will be in effect, there will be an additional cost to local government as a result of enforcing and administering the rules that require a LIDDA to conduct an inventory for client and agency planning, and certain standardized measures for completing a determination of intellectual disability in person. There will also be an additional cost to local government for administering the rules that require a LIDDA service coordinator to perform activities relating to an individual who becomes delinquent or does not pay room and board under a residential agreement as proposed. However, there are multiple complexities and uncertainties related to the fiscal impact of this requirements for HHSC to provide an estimate of these costs.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

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

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

(5) the proposed rules will create a new rule;

(6) the proposed rules will repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that the rules could have an adverse economic effect on small businesses and micro-businesses due to the cost to comply.

HHSC does not have the data to estimate the number of small businesses or micro-businesses subject to the rule, however as of January 24, 2022, there are 583 HCS program providers. As of January 24, 2022, there are 610 HCS and TxHmL legal entities. Legal entities include program providers that may be contracted to be both HCS program providers and TxHmL program providers and program providers that are only contracted to be HCS program providers or TxHmL program providers.

HHSC did not consider any alternative methods that would achieve the purpose of the proposed new rules while minimizing the adverse impact on small businesses or micro-businesses because the rules requiring a program provider to have a residential agreement with each individual living in an HCS residential setting, and to install a lock on an individual's bedroom door if there is not one, are necessary for the HCS Program to comply with federal law and for HHSC to receive federal funds.

HHSC did not consider any alternative methods for the proposed new rule requiring a program provider or LIDDA to submit a translation of information in English if the program provider or LIDDA submits documentation to HHSC containing information that is not in English, because there is no alternative method that would achieve the purpose of ensuring that HHSC's reviews of the documentation submitted are efficient.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFIT AND COSTS

Stephanie Stephens, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, individuals will benefit from the implementation of federal regulations that help ensure an individual receives services that are person-centered and promote the autonomy of the individual and that are provided in a setting that is integrated in the greater community.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs because program providers will develop and implement a residential agreement with each individual who receives host home/companion care, residential support, or supervised living. Further, Program providers may incur court costs to evict an individual who fails to pay room or board and for attorney's fees arising out of any dispute relating to the residential agreement. In addition, HCS program providers may also incur a cost to purchase and install a lock on a bedroom door for an individual receiving host home/companion care, residential support, or supervised living, if the door does not currently have a lock; and to submit a translation of information in English if the program provider submits documentation to HHSC containing information that is not in English. However, HHSC lacks sufficient information to provide an estimate of these costs.

TAKINGS IMPACT ASSESSMENT

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

PUBLIC HEARING

A public hearing to receive comments on this proposal will be held via GoToWebinar on September 26, 2022, at 1:00 p.m. (central time). The link to register for the GoToWebinar meeting is https://attendee.gotowebinar.com/register/5797564706801514763.

Persons requiring further information, special assistance, or accommodations should contact Olu Oguntade at (512) 438-4478.

PUBLIC COMMENT

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

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 21R058" in the subject line.

STATUTORY AUTHORITY

The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §32.021, which authorizes the Executive Commissioner of HHSC to adopt rules necessary for the proper and efficient operation of the Medicaid program.

The new sections affect Texas Government Code §531.0055 and Texas Human Resources Code §32.021.