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Texas Register Preamble


Response: HHSC did not make changes in response to this comment because although a service provider must meet certain qualifications, proposed §263.2023 does not prohibit a volunteer from being a service provider.

Comment: One commenter requested the ability for provisional licensure for individualized skills and socialization providers.

Response: HHSC did not make changes in response to this comment because it is outside the scope of this project. The proposed rules do not address the licensing of individualized skills and socialization providers.

Comment: One commenter requested expanding the criteria to receive in-home individualized skills and socialization to allow for a nurse, physician assistant, or nurse practitioner to be able to document the medical need for in-home individualized skills and socialization.

Response: HHSC declines to make changes in response to this comment because the changes would require additional analysis.

Comment: One commenter requested a 1:1 enhanced staffing rate be available for all individuals who are not an LON 9. Another commenter requested that individuals with an LON 8 be able to request an enhanced staffing rate. One commenter requested that a program provider be able to request a 1:4 ratio as an enhanced staffing rate for an individual.

Response: HHSC agrees with the request for a 1:1 enhanced staffing rate for all individuals who are not an LON 9. Therefore, HHSC made changes in proposed §263.2027 and §263.2017 to allow a program provider to request a level two enhanced staffing rate for off-site individualized skills and socialization so that the ratio of service providers for an individual with an LON 1, LON 5, LON 8, or LON 6 is no higher than one service provider to one individual (1:1). HHSC also made changes in proposed §263.2027 and §263.2017 so that a level one enhanced staffing rate provides for one service provider of off-site individualized skills and socialization to two individuals (1:2). HHSC also made changes to §263.2025(b) to provide that HHSC pays for a level two enhanced staffing rate for off-site individualized skills and socialization for an individual with an LON 1, LON 5, LON 8, or LON 6 and to distinguish between a level one and a level two enhanced staffing rate. HHSC declines to make changes in response to the request for an enhanced staffing rate that would allow for a 1:4 staffing ratio because the changes would require additional analysis.

Comment: One commenter requested fewer service provider requirements for service providers of in-home individualized skills and socialization.

Response: HHSC did not make changes in response to this comment. The service provider requirements in proposed §263.2023 help ensure that service providers are qualified to provide in-home individualized skills and socialization. HHSC is deleting the provisions related to on-site and off-site service provider qualifications in §263.2023 because these provisions are in 26 TAC Chapter 559, Subchapter H.

Comment: One commenter requested a change in proposed §263.2027(a)(2) to replace the "ICAP Scoring Booklet" with "scoring of a client needs assessment" in the event the ICAP is replaced with another assessment.

Response: HHSC declines to make changes in response to this comment, because the ICAP is the current tool utilized by HHSC to determine an individual's needs and changing the assessment tool is outside of the scope of this project.

Comment: Several commenters requested flexibility in renewing individual plans of care (IPCs) when the IPC expires.

Response: HHSC declines to make changes in response to this comment. Federal regulation at 42 CFR §441.301(c)(3) requires an individual's person-centered service plan, which includes the IPC, to be reviewed and revised at least every 12 months, when the individual's circumstances or needs change significantly, or at the request of the individual.

Comment: Several commenters requested changes to proposed §263.2017(c) to allow service providers to work with individuals outside of their assigned staffing ratios.

Response: HHSC declines to make changes in response to this comment because the required staffing ratio will not be met if a service provider provides services to individuals not in the assigned staffing ratio.

Comment: One commenter requested flexibility in proposed §263.2025(d) to allow for the program provider to only verify licensure requirements and that the individualized skills and socialization provider has received an implementation plan.

Response: HHSC declines to make changes in response to this comment because, to ensure the integrity of the HCS Program, HHSC must not pay a program provider or must recoup payments made to the program provider for any of the reasons described in §263.2025(d).

Comment: One commenter requested clarification in the rules to add language that a family member and a service provider of host home/companion care would be allowed to provide in-home individualized skills and socialization.

Response: HHSC declines to make changes in response to this comment. HHSC will take this comment under consideration when reviewing the HCS Billing Requirements.

Comment: One commenter requested that HHSC clarify in the rules that the individualized skills and socialization provider is not responsible for the individual's costs for off-site individualized skills and socialization activities.

Response: HHSC added subsection (i) to proposed §263.2005 to state that an individualized skills and socialization provider or the program provider is not responsible for the cost, if any, of an individual to participate in an off-site activity that the individual chooses to participate in, such as purchasing movie tickets.

Comment: One commenter requested adding a requirement in proposed §263.2021(b) that the in-home individualized skills and socialization provider will participate in developing the implementation plan.

Response: The process in proposed §263.2021(b) for development of an implementation plan for individualized skills and socialization does not require that an individualized skills and socialization provider participate in developing the plan. This process is the same as that for development of an implementation plan for other HCS Program services. To keep the process consistent for all HCS Program services, HHSC declines to make changes in response to this comment.

Comment: One commenter requested additional language in proposed §263.2025(d)(2) to clarify that HHSC will only recoup or will not pay if there is not a signed and dated initial authorized IPC for the individual.

Response: HHSC declines to make changes in response to this comment. To ensure the integrity of the HCS Program, HHSC must not pay a program provider or must recoup payments made to the program provider for providing individualized skills and socialization to an individual during a period of time for which there is not an authorized initial, renewal, or revision IPC for the individual.

Comment: One commenter requested that HHSC clarify in proposed §263.2025(d)(1) that HHSC will not refuse to pay for a service if an individual has a temporary lapse in Medicaid eligibility.

Response: HHSC declines to make changes in response to this comment. The rules governing the HCS Program do not allow HHSC to pay a program provider for services provided to an individual who does not meet the eligibility criteria at the time the service was provided.

Comment: Several commenters requested that children be allowed to receive individualized skills and socialization.

Response: School-aged individuals are allowed to receive individualized skills and socialization if it is not being provided when the individual is regularly scheduled to attend school. In accordance with 40 TAC §9.190(e)(28), unless contraindications are documented with justification by the service planning team, a service coordinator must ensure that a school-age individual receives educational services in a six-hour-per-day program, five days per week, provided by the local school district. HHSC did not make changes in response to this comment.

Comment: Several commenters requested that individuals be allowed to volunteer in a person's residence, including private residences or settings in which an individual must not reside.

Response: HHSC agrees with this request and made changes in proposed §263.2005(h)(4)(B) and §263.2005(h)(4)(C) to allow for an off-site individualized skills and socialization activity to be provided in an individual's residence or in a setting in which an individual must not reside, as set forth in the rules governing the HCS Program, if the activity is a volunteer activity performed by an individual.

Comment: One commenter requested that HHSC allow for a range of hours on an individual's IPC instead of a specific amount of hours.

Response: HHSC declines to make changes in response to this comment. The content of an IPC is governed by 40 TAC §9.159(c) which requires that an individual's IPC be based on the person-directed plan (PDP) and specify the type and amount of each HCS Program service and CFC service to be provided to an individual. Therefore, this comment is outside the scope of this project.

Comment: One commenter requested that HHSC add additional guidance for what to do if an individual chooses off-site individualized skills and socialization but there is not a provider that offers off-site individualized skills and socialization in their community.

Response: HHSC did not make changes in response to this comment. Currently, 40 TAC §9.174(a)(3) requires an HCS Program provider to provide or obtain as needed and without delay all HCS Program services and CFC services.

Comment: Several commenters requested that HHSC remove the requirement in proposed §263.2011(e) to document when an individual or the individual's legally authorized representative (LAR) decides that the individual will not participate in an on-site individualized skills and socialization activity.

Response: HHSC disagrees with the commenter and believes that an individualized skills and socialization provider must document the individual's or LAR's decision for the individual not to participate in an activity the individual scheduled for on-site individualized skills and socialization or off-site individualized skills and socialization. This requirement helps ensure that if an individual does not receive individualized skills and socialization, it is because the individual or the individual's LAR declined to receive the service. However, because the licensing rules for individualized skills and socialization providers being adopted in 26 TAC Chapter 559, Subchapter H, include this documentation requirement, HHSC removed the provisions in proposed §263.2011(e) to avoid duplicative provisions in different rule chapters.

Comment: One commenter requested that HHSC create a definition of "Representative Payee" to differentiate from an LAR.

Response: HHSC declines to make changes in response to this comment because the definition of "LAR" makes clear that a representative payee is appointed by the Social Security Administration and is an example of an LAR.

Comment: Several commenters expressed concerns that the off-site staffing ratios in the rules could cause discrimination based on an individual's LON and not support personal choice. The commenters also expressed concerns that individuals must be grouped based on LON.

Response: HHSC declines to make changes in response to this comment. HHSC implemented staffing ratios to ensure the health and safety of individuals participating in off-site individualized skills and socialization so that individuals may meet their goals. The staffing ratios in proposed §263.2017 for off-site individualized skills and socialization do not require that individuals be only with other individuals who have the same LON.

Comment: One commenter states that HHSC did not make a good faith effort to determine the adverse economic effect on small businesses and microbusinesses in drafting these rules.

Response: HHSC determined that the rules could have an adverse economic effect on small businesses and micro-businesses due to the cost to comply. However, the new rules are necessary to comply with the federal regulations for home and community-based settings in 42 CFR §441.301(c)(4)(i) - (v). HHSC did not make any changes in response to this comment.

Comment: One commenter expressed concerns that the service limit would keep individuals out in the community too long.

Response: HHSC did not make changes in response to this comment. The service limit in proposed §263.2015(2) specifies the maximum amount of hours per day for on-site, off-site, and in-home individualized skills and socialization that an individual may receive. The service planning team determines, within the service limit, the amount of hours per day for on-site, off-site, or in-home individualized skills and socialization for each individual based on the individual's needs.

Comment: Several commenters expressed concerns about finding low cost activities for off-site individualized skills and socialization.

Response: HHSC did not make changes in response to this comment. Off-site individualized skills and socialization providers are able to provide free activities for individuals in the community such as volunteering and visiting a public library or public park.

HHSC revised the definition in proposed §263.2001 of "individualized skills and socialization provider" to replace the reference to "Texas Human Resources Code, Chapter 103" with a more specific reference to "26 TAC Chapter 559, Subchapter H," the licensing requirements for an individualized skills and socialization provider, being adopted in this same issue of the Texas Register.

HHSC revised proposed §263.2005(a) to state that individualized skills and socialization is a HCS Program service described in this section. The reference to Appendix C of the HCS Program waiver application approved by CMS was removed because §263.2005 contains a complete description of individualized skills and socialization.

HHSC revised proposed §263.2005(c)(4)(A) to remove "unless provided in an event open to the public." HHSC removed this wording because on-site individualized skills and socialization must be provided in a facility licensed in accordance with 26 TAC Chapter 559, Subchapter H.

HHSC revised proposed §263.2011 to require that a program provider, instead of the individualized skills and socialization provider, make both on-site and off-site individualized skills and socialization available to an individual. This change was made because the licensure process for individualized skills and socialization providers will allow an individualized skills and socialization provider to only provide off-site individualized skills and socialization.

HHSC revised the title of proposed §263.2023 to add "and Training" so that the section title more accurately reflects the contents of the section.

HHSC added paragraph (9) to proposed §263.2025(d) to provide that HHSC does not pay a program provider for, or recoups any payments made to the program provider for individualized skills and socialization if on-site or off-site individualized skills and socialization is not provided in accordance with 26 TAC Chapter 559, Subchapter H. This change was made so that HHSC may recoup or deny payment for noncompliance with 26 TAC Chapter 559, Subchapter H.

Based on direction from CMS that a setting in which on-site individualized skills and socialization is provided is a provider-controlled setting, HHSC revised proposed §263.2005 by adding new subsection (f) to add that the setting in which on-site individualized skills and socialization is provided must allow the individual to control the individual's schedule and activities, have access to the individual's food at any time, receive visitors at any time, and be physically accessible and free of hazards, in accordance with 42 CFR §441.301(c)(4)(vi)(C) - (E). HHSC also revised proposed §263.2005 by adding new subsection (g) to add the requirements that must be met if an individual's service planning team determines that any of the requirements in new subsection (f)(1) must be modified, in accordance with 42 CFR §441.301(c)(4)(vi)(F).

STATUTORY AUTHORITY

The new sections are adopted under 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.



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