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COMMENT: One commenter requested that HHSC remove the phrase "in a clean, sanitary, and safe environment" in proposed §263.6(a)(1)(A)(i)(II) regarding the definition of CFC PAS/HAB and the provision of household chores, because it is unnecessary. The commenter also requested that HHSC add "and to help people be integrated into the community" in proposed §263.6(a)(1)(A)(ii)(IX) regarding the description of CFC HAB. RESPONSE: Based on the Medicaid State Plan, Attachment 3.1-K, proposed §263.6(a)(1)(A)(i)(II) provides that CFC personal assistance services consist of household chores necessary to maintain the home in a clean, sanitary, and safe environment; and proposed §263.6(a)(1)(A)(ii)(IX), provides that CFC habilitation include reduction of challenging behaviors to allow individuals to accomplish ADLs, IADLs, and health-related tasks. HHSC declines to make changes in response to these comments because the requested revisions are inconsistent with the HCS waiver application and would require additional analysis and a change to the Medicaid State Plan with CMS approval. COMMENT: Several commenters expressed concern about the cost to program providers and LIDDAs to translate non-English information that is submitted to HHSC to English as required by proposed §263.7. Two commenters expressed concern about the integrity of translated information by a program provider or LIDDA and a commenter suggested that HHSC hire multi or bilingual translators to complete the translations. Another commenter suggested that HHSC delete this provision or clarify what it means by "documentation." RESPONSE: HHSC proposed §263.7 requiring a program provider and a LIDDA to provide HHSC a translation of information in English to help ensure that HHSC staff can perform utilization review functions timely and efficiently. HHSC believes it is the program provider's or LIDDA's responsibility to provide documentation to HHSC that does not require translation by HHSC staff, and that program providers and LIDDAs are capable of providing accurate translations. The word "documentation" in proposed §263.7 means any documentation submitted to HHSC by a program provider or LIDDA and, therefore, no clarification is needed. HHSC declines to make changes in response to these comments. COMMENT: One commenter requested that HHSC revise proposed §263.8 to require a comprehensive nursing assessment if an individual has a need for nursing services, instead of requiring the assessment if an individual's initial IPC includes a sufficient number of RN nursing units to perform a comprehensive nursing assessment. The commenter requested this change because they believed it is unclear what is meant by "a sufficient number of RN nursing units." RESPONSE: HHSC declines to make changes in response to this comment. Proposed §263.8(a)(1) requires an RN to complete a comprehensive nursing assessment if the initial IPC includes a sufficient number of RN nursing units as described in proposed §263.104(k)(9). Proposed §263.104(k)(9) requires a service coordinator to include a sufficient number of RN units on an initial IPC if an applicant or LAR want to receive certain specified services. COMMENT: One commenter suggested HHSC allow a pre-enrollment comprehensive nursing assessment to accelerate an individual's access to nursing service. The commenter also requested that HHSC not exempt host home/companion care providers from access to delegated nursing services or the appropriate nursing service for an individual regardless of the individual's age. RESPONSE: HHSC declines to make changes in response to the comments because the change to allow for the performance of a comprehensive nursing assessment, a registered nursing service, before an individual enrolls in the HCS Program would require additional analysis and an amendment of the HCS waiver application. HHSC is unclear what the commenter means by the request for HHSC not to "exempt host home/companion care providers from access to delegated nursing services or the appropriate nursing service for an individual regardless of the individual's age." The proposed HCS rules do not include an exemption to the provision of nursing services based on an individual's residential type or age. In accordance with 40 TAC §9.174(a)(31), nursing services are provided in accordance with an individual's PDP; IPC; implementation plan; Texas Occupations Code Chapter 301; 22 TAC Chapter 217; 22 TAC Chapter 224; and 22 TAC Chapter 225. COMMENT: One commenter requested that the comprehensive nursing assessment requirement in proposed §263.8 be removed and included only in the HCS Program certification principles or be removed from the certification principles and included only in proposed §263.8. The commenter suggested that if HHSC decides to maintain the comprehensive nursing assessment requirements in both sets of rules then each set of rules should cross-reference each other. Another commenter requested that HHSC revise the HHSC comprehensive nursing assessment form to align with the requirements in proposed §263.8. RESPONSE: HHSC declines to make changes in response to the comments about the comprehensive nursing assessment requirement in proposed §263.8. The certification principles are included in rules that are not part of this project and that may be proposed in a future issue of the Texas Register. HHSC will consider revising the HHSC comprehensive nursing assessment form as requested when that form is under review by HHSC. COMMENT: One commenter expressed concern that proposed §263.9(b)(3) requires informed consent of the individual or LAR before providing a telehealth service even though consent would have already been obtained for the provision of the service. RESPONSE: HHSC declines to make changes in response to this comment because the requirement to obtain consent from an individual or LAR before delivering a service as a telehealth service is based on Texas Occupations Code §111.002. COMMENT: One commenter expressed concern that an individual may have to change Medicaid coverage type to be eligible to receive HCS services. RESPONSE: HHSC did not make changes in response to this comment because this comment is outside the scope of the project. COMMENT: One commenter suggested that decisions about IPC cost caps and rates of services should be indexed to inflation. Another commenter recommended replacing the specific dollar amounts assigned as LON cost caps with 200% of the ICF/IID cost. Another commenter expressed concern that the IPC cost cap for a LON 6 is insufficient to meet the staffing needs for an individual with a LON 6. RESPONSE: HHSC did not make changes in response to these comments because the comments are outside the scope of this rule project. The provision in proposed §263.101(a)(3) that lists the IPC cost limits for each LON is based on the HCS waiver application. COMMENT: Several commenters expressed strong support of HHSC's decision to remove the provision in §263.101(a)(5)(J) that includes as a prohibited residential setting, a setting in which two or more dwellings create a distinguishable residential area, and instead adding provisions in proposed §263.501 consistent with 42 CFR §441.301(c)(5)(v) regarding home and community-based settings, settings that are presumed to have the qualities of an institution, and that address a heightened scrutiny review conducted by CMS. RESPONSE: HHSC appreciates the support. COMMENT: Several commenters expressed disagreement with HHSC's decision to not include the provision from 40 TAC §9.155(a)(5)(H) that prohibits an individual from living in a setting in which two or more dwellings create a distinguishable residential area, because this type of setting is not home and community-based. Two commenters expressed concerns about HHSC including "intentional communities" as an eligible setting to receive HCS service. The commenters requested that HHSC be precise in its definition of "intentional communities" and prohibit any "intentional community" whose policies violate the HCS principles to serve any eligible person who selects the "intentional community" as a program provider or has a preponderance of residents of people with disabilities. One commenter expressed concern about the inequity of allowing "intentional communities" to be eligible for HCS funding considering that HCS rates are significantly higher than the inadequate rates in the Community Living Assistance & Support Services Program. Another commenter expressed that heightened scrutiny is an inadequate safeguard to prevent the provision of an HCS Program service or CFC service in "segregated intentional communities." RESPONSE: HHSC believes that the heightened scrutiny process described in 42 CFR §441.301(c)(5)(v) and included in proposed 26 TAC §263.501 will be a fair and effective method to determine whether a setting that is presumed to have the qualities of an institution, including one identified as an intentional community, does not have institutional qualities and qualifies as a home and community-based setting. Further, the heightened scrutiny process may allow for a greater number of residential options for an individual. An HCS program provider is required to comply with all HCS program rules including 40 TAC §9.174(a)(1) which requires a program provider to serve an eligible applicant who has selected the program provider unless the program provider's enrollment has reached its service capacity. HHSC declines to make changes in response to these comments. COMMENT: One commenter suggested HHSC revise proposed §263.103(d) to allow an applicant who is residing in an ICF/IID or nursing facility to maintain their HCS interest list date if the HCS interest list date is an earlier date than the date of admission to the ICF/IID or nursing facility. RESPONSE: HHSC declines to make changes in response to this comment. If an applicant is on the HCS interest list with an interest list date that is earlier than the date of admission to the ICF/IID or nursing facility, HHSC would not need to add the name of the applicant on the HCS interest list again with the later interest list date. COMMENT: One commenter requested that HHSC revise proposed §263.103(h) and (i) to require that HHSC add an applicant's name back to the HCS interest list using the HCS interest list date that was in effect at the time the applicant's name was removed from the list by HHSC, regardless of whether the applicant's request to add the name back is the applicant's first request. The commenter requested this change because some families making these requests may have chaotic and complicated lives. RESPONSE: HHSC declines to make changes in response to this comment. The reason for limiting use of the HCS interest list date in effect at the time the applicant's name was removed from the list, as described in proposed §263.103(h)-(j), is to discourage an applicant from repeatedly declining a written offer of HCS Program services. COMMENT: One commenter requested that HHSC clarify the difference between "regular United States mail" and "United States mail." The commenter also asked if references to United States mail precludes the use of Federal Express or United Parcel Service. RESPONSE: The term "United States mail" refers to mail delivered by the United States Postal Service. "Regular United States mail" as used in 40 TAC Chapter 9, Subchapter D referred to first class mail delivered by the United States Postal Service. References to "United States mail" do not include delivery by a carrier other than the United States Postal Service. HHSC declines to make changes in response to this comment. COMMENT: One commenter requested adding a requirement to §263.104(e) for a LIDDA to provide information about permanency planning and family-based-alternatives when an applicant under the age of 22 or LAR responds to an offer of enrollment. The commenter also requested that the permanency planner be required to participate as part of the service planning team in the development of the PDP and determination of an individual's need for TAS. RESPONSE: HHSC agrees with the commenter and revised §263.902 that describes the permanency planning process. Specifically, HHSC revised §263.902(b) to require a LIDDA to, during the enrollment process, provide information about permanency planning and the benefits of living in a family setting to an applicant under 22 years of age moving from a family setting and requesting supervised living or residential support. HHSC also revised the definition of "service planning team" in §263.3(89) to include a permanency planner as a member of the service planning team for an applicant or individual under 22 years of age in certain situations. This change ensures that the permanency planner is involved in the development of service plans, including the PDP and IPC. COMMENT: One commenter requested that HHSC revise proposed §263.104(f)(2) to allow 14 calendar days, instead of seven calendar days, for an applicant or LAR to document the applicant's choice on the HHSC Waiver Program Verification of Freedom of Choice form because of delayed postal delivery. RESPONSE: HHSC declines to make a change in response to this comment because seven calendar days is a reasonable timeframe for an applicant or LAR to document an applicant's choice of HHSC waiver program on the HHSC Waiver Program Verification of Freedom of Choice form. COMMENT: Several commenters disagreed with the requirements in proposed §263.104(j)(2)(A)(i)(I) and (B)(i) for a LIDDA to conduct a determination of intellectual disability (DID) and an inventory for client and agency planning (ICAP) in person. The commenters expressed that these requirements would limit or delay access to services for individuals. These commenters requested that HHSC consider the established validity of several psychological assessments conducted remotely and allow an authorized provider/clinician to use their clinical judgement in deciding the best modality for conducting the DID and ICAP. One commenter requested that synchronous audiovisual interactions be considered an appropriate alternative to in-person meetings when the practitioner determines such remote interaction to be clinically appropriate. The commenter also asked to include in proposed §263.104(j)(2)(B)(i) that the LIDDA conduct an "initial" ICAP assessment in person or "via synchronous audiovisual interaction that allows for a real-time interface to ensure validity of the results." The commenter asked to add "initial" because subsequent ICAPs are conducted by providers. RESPONSE: HHSC declines to make changes in response to these comments. HHSC believes that initial assessments for waiver program eligibility, including the standardized measures of an individual's intellectual functioning, adaptive abilities, and deficits that informs the DID and the ICAP, must be conducted in person to ensure the assessments are thorough and accurate. HHSC declines to add "initial" before ICAP assessment, because the additional wording is not needed to understand the purpose of the assessment. COMMENT: One commenter suggested that HHSC replace the phrase "for completing" to "to complete" in §263.104(j)(5)(A). The commenter also suggested adding "or transmits the signed and dated document" for clarity in §263.104(k)(11). RESPONSE: HHSC agrees with the commenter and revised the proposed rules for clarity. Specifically, HHSC replaced "for completing" with "to complete" in proposed §263.104(j)(5)(A), §263.302(a)(2)(A) and §263.302(b)(4)(A). HHSC also revised proposed §263.104(k)(11) and 263.302(e)(1)(B) to clarify that an applicant or LAR provides a signed and dated IPC to the service coordinator in person, electronically, by fax, or by United States mail. COMMENT: Two commenters expressed concerns about assigning LONs based on an individual's ICAP service level score. One of the commenters noted that the ICAP does not effectively capture an individual's high behavioral needs and requested revision to the HHSC ICAP scoring guideline to count an individual's behaviors in the scoring model regardless of the presence of a behavior support plan. The other commenter expressed that an ICAP does not capture the needs of individuals with high physical or medical needs, and as such, LON assigned to individuals are often inadequate to meet their needs. RESPONSE: The ICAP is the current instrument utilized by HHSC to determine an individual's needs. Based on the HCS waiver application, proposed §263.106(h) provides that HHSC assigns a certain LON to an individual based on the individual's ICAP service level. HHSC declines to revise proposed §263.106(h) in response to this comment because the requested revision is inconsistent with the HCS waiver application and would require additional analysis and a change to the HCS waiver application with CMS approval. HHSC declines to revise the HHSC ICAP scoring guidelines in response to the second comment because it is outside the scope of this project. COMMENT: One commenter requested that HHSC revise proposed §263.106(g) to outline the supporting documentation that must be submitted to HHSC in accordance with HHSC guidelines. RESPONSE: HHSC declines to make changes in response to this comment because the documentation requirements for demonstrating an individual has a high medical or behavioral need are lengthy and listed on the HHSC website. COMMENT: One commenter requested increased staffing for individuals with high behavior needs such as one staff to one individual or one staff to two individuals. RESPONSE: HHSC will increase an individual's LON to the next LON or assign an individual an LON 9 requiring a 1:1 staffing ratio if the individual exhibits certain dangerous behaviors, in accordance with proposed §263.106(i) and §263.106(j). HHSC declines to make changes in response to this comment because this revision would require additional analysis and funding. COMMENT: Two commenters expressed concerns about the documentation requirements to support a request for an increase in LON due to an individual's dangerous behavior in proposed §263.106(i), because the process to obtain the required documentation can take months and puts the HCS placements of an individual at risk. One of the commenters suggested HHSC develop a process to allow for a temporary LON increase when an individual exhibits dangerous behavior that manifest quickly and requires immediate increase in support and services. One of the commenters also suggested that HHSC remove the documentation requirement in proposed §263.106(i)(3) showing more service providers are available than would be needed if the individual did not exhibit dangerous behavior. RESPONSE: The documentation required to demonstrate an individual's dangerous behavior, as described in proposed §263.106(i), is reasonable and necessary to justify an increase in an individual's LON and in the payment rate to the program provider, therefore, HHSC declines to make changes in proposed §263.106(i) in response to these comments. Cont'd... |