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Response: HHSC declines to make changes in response to this comment because the requirement in each rule serves a different purpose in the service provider's emergency plan. Proposed §565.23(e)(4) relates to staff execution of a fire drill. Proposed §565.23(e)(5) involves actions the service provider takes at any time in response to an identified shortcoming in the emergency plan.

Comment: A commenter suggested adding language to §555.23(b)(e)(5) regarding fire drills and whether a person must evacuate in a home rated impractical with sprinklers.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(f) requires the program provider to create and maintain an emergency plan to address fire drills and ensure the individual can exit the residence safely. The rule enables the HCS provider to create a plan based on the needs of the individual and adjust as necessary.

Comment: A commenter recommended adding text in quotes at the end of §565.25(d): "or electronically if available."

Response: HHSC agrees with the commenter and revised proposed §565.25(d) to include an option for electronic delivery of records, reports or other information requested by HHSC.

Comment: A commenter asked if providers could charge a deposit in accordance with the Texas Property Code in §565.27(a)(5)(A).

Response: Under 42 CFR 441.301(c)(4)(vi)(A), for a provider-owned or controlled residential setting, the individual receiving services has, at a minimum, the same responsibilities and protections from eviction that tenants have under the landlord/tenant law of the State, county, city, or other designated entity. As such, the program provider or service provider of host home/companion care and the individual or LAR agree that the residential agreement is a "lease," as defined in Texas Property Code Chapter 92, and that they are subject to state law governing residential tenancies, including Texas Property Code Chapters 24, 91, and 92 and Texas Rules of Civil Procedure Rule 510, in accordance with §263.503(c)(7)(A) of this title. Therefore, HHSC declines to make changes in response to this comment because the terms of a residential lease agreement would be controlled by the Texas Property Code.

Comment: A commenter stated that §565.27(c) is duplicative with financial impropriety provisions in §565.9(g)(2).

Response: HHSC declines to make changes in response to this comment because proposed §565.9(g)(2) is the prohibition against financial impropriety whereas proposed §565.27(c) requires written approval for all charges assessed by the program provider against the individual's personal funds.

Comment: A commenter requested to add, "have policies and procedures" to §565.31(a), Requirements Related to Abuse, Neglect, and Exploitation.

Response: HHSC declines to make changes in response to this comment because proposed §565.31(a) outlines the regulatory requirements to ensure compliance with the service provider's responsibility to inform the individual, the individual's LAR, and staff on the procedures to report abuse, neglect, and exploitation and to ensure staff is adequately trained. An additional regulatory requirement for the service provider to develop policies and procedures would require further discussion with stakeholders, advocates, and service providers.

Comment: A commenter requested adding the language "have policies and procedures" in §565.31(a)(2) so that it requires the provider to have policies and procedures for training staff on abuse, neglect, and exploitation and document the training.

Response: HHSC declines to make changes in response to this comment because proposed §565.31(a)(2) outlines the regulatory requirements to ensure compliance with the service provider's responsibility to ensure staff is adequately trained. An additional regulatory requirement for the service provider to develop policies and procedures would require further discussion with stakeholders, advocates, and service providers.

Comment: A commenter stated that it does not make sense that a provider must send Form 8494, Notification Regarding an Investigation of Abuse, Neglect or Exploitation, required in §565.31(f)(4) to HHSC because HHSC is the one who issues the outcome of the investigation; therefore, the commenter argues, HHSC is aware of the outcome before the provider. The commenter also stated that in some cases, HHSC has shown up with citations written for violations of this subsection when the provider never received the report of the investigation.

Response: HHSC declines to make changes in response to this comment because the purpose of Form 8494 is for the service provider to document any actions taken as a result of the outcome of the investigation.

Comment: A commenter questioned why HHSC continues to require that at least one person in a four-person residence must receive residential support. The commenter stated that the rates are the same for residential support and supervised living regardless of whether a person lives in a three or four-bedroom home; the designation of "residential support" requires 24-hour awake staff.

Response: HHSC declines to make changes in response to this comment because the federal CMS HCS waiver application requires one person receive residential support in a four-person residence. Making a change to this rule would conflict with the federal CMS HCS waiver application.

Comment: A commenter stated that the rules use the term "Billing Guidelines" when the terminology should be "Billing Requirements."

Response: HHSC agrees with the commenter and revised proposed §§565.3(89), (90), (99), (102), and §565.17(1)(A) to replace "Billing Guidelines" with "Billing Requirements."

Comment: A commenter stated that rules that allow individuals to choose any group home and rules that specify that individuals should have input on their roommates should be reconciled. The commenter argued that if providers allow an individual to move into any room he or she chooses, this could violate the rights of other individuals living in the home and their input on regarding perspective roommates.

Response: The commenter does not identify the rules that require reconciliation. Therefore, HHSC is unable to respond to these comments.

Comment: Regarding §565.11(a)(4), a commenter stated that a provider should be responsive to an individual's change in condition or specific request for services; however, a provider should not face "regulatory action when regulatory disagrees with the service plan." Rather, the commenter asserted that concerns should be referred back to the service planning team for consideration.

Response: As part of the provider's service delivery, the provider must maintain a system of delivering HCS Program and CFC services that is continuously responsive to changes in the individual's personal goals, condition, abilities, and needs as identified by the service planning team. It is unclear what the commenter means by references to a regulatory action when regulatory disagrees with the service plan. Proposed §565.11(a)(4) relates to a provider's response to an individual's change in condition or a specific request for services. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter stated that not every rights restriction requires a behavior support plan and that providers have an extensive process that they must undergo with the service planning team to justify any rights restriction and documentation in the PDP. This may or may not include a recommendation for a behavior support plan. Therefore, the commenter stated, §565.11(a)(6) should be modified.

Response: As part of the provider's service delivery, the provider must ensure that an individual's rights are not violated unless contraindications are documented with justification in a behavior support plan. The requirement of a behavior support plan to restrict an individual's rights ensures there is an identified need for the restriction, which is documented, and that lesser restrictive options are considered. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter had concerns regarding the full impact of including the residential review checklist in this rule because previously providers were given the opportunity to correct any concerns without penalty unless there was a hazard to health and safety or serious concerns that would constitute the need for an interim survey. The commenter stated that these rules and program changes may change this practice and lead to essentially licensing every three or four-bedroom group home in HCS, as well as the program as a whole.

Response: HHSC declines to make changes in response to this comment because program providers have an opportunity to correct any identified non-compliance in accordance with proposed §565.49, Program Provider Compliance and Corrective Action.

Comment: Two commenters had concerns with putting an end date on the use of enclosed beds. One stated that if HHSC is going to prohibit the use of enclosure beds in §565.35(a), enclosed beds should not be prohibited until the date the rule becomes effective, rather than January 1, 2023.

Response: HHSC agrees with the commenter and revised proposed §565.35(a) to change the effective date from January 1, 2023, to June 19, 2023, matching the effective date of the rules.

Comment: Two commenters expressed concern with the prohibition on enclosed beds, stating that there are unique circumstances where an individual may need a more restrictive bed or where an enclosed bed is the safest option, and asserted that they should be allowed with proper documentation and discussion.

Response: Under proposed §565.35(a), the program provider may allow the use of an enclosed bed in a residence if the enclosed bed is purchased, obtained, and complies with §565.35(c) prior to June 19, 2023. Under proposed §565.35(b), an enclosed bed is prohibited in a residence if it is purchased or obtained on or after June 19, 2023. Under proposed §565.35(e), all enclosed beds are prohibited after June 19, 2028, for health and safety of the individual. Therefore, HHSC declines to continue the use of enclosed beds after June 19, 2028, without further dialogue with stakeholders, advocates, and providers.

Comment: In reference to §565.35(c)(3)(B), a commenter suggested that producing a receipt for an enclosed bed for HHSC may not be feasible in all cases as families may not still have a receipt for the bed.

Response: HHSC declines to make changes in response to this comment because a receipt from a durable medical equipment company for the enclosed bed ensures the purchased bed meets industry standards for an enclosed bed.

Comment: A commenter reported that there is some inconsistency in the use of the term "enclosed beds" throughout §565.35(c), and stated that the description of the assessment, documentation, and review of enclosed bed usage in HCS settings other than the participant's own home or family home is somewhat duplicative and confusing.

Response: The commenter does not identify the inconsistencies in the use of the term "enclosed bed" or what is duplicative and confusing in proposed §565.35(c). Therefore, HHSC is unable to respond to these comments.

Comment: A commenter stated that the requirements in §565.35, Enclosed Beds, must be consistent with §565.37, Protective Devices, given that the definition of an enclosed bed identifies it as a protective device.

Response: HHSC agrees with the commenter and revised proposed §565.37 to state that if the protective device is an enclosed bed, providers should follow proposed §565.35.

Comment: A commenter was concerned that the requirements in §565.35(c)(3)(C) may cause a misunderstanding with other requirements and asked that the rule language be simplified for clarity.

Response: The commenter does not identify the other requirements that could cause a misunderstanding with proposed §565.35(c)(3)(C). Therefore, HHSC is unable to respond to these comments.

Comment: A commenter was concerned that highlighting the requirements in §565.35(e) that an enclosed bed must be commercially produced may cause a misunderstanding with the other requirements that are needed to meet the definition of enclosed bed located in §565.5(34).

Response: HHSC agrees with this comment and removed subsection(e) from §565.35 for clarity as this requirement was already listed in the definition section at §565.5(34).

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.172(4) requiring program providers to, "encourage involvement of the LAR or family members and friends in all aspects of the individual's life and provide as much assistance and support as is possible and constructive."

Response: The program provider must develop and implement policies to ensure the individual's family members and LAR are involved in the individual's services, as proposed in §565.5(b)(39). Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(9) requiring program providers to, "allow the individual's family members and friends access to an individual without arbitrary restrictions unless exceptional conditions are justified by the individual's service planning team and documented in the PDP."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the program provider to develop and implement policies to ensure the individual can receive visitors without prior notice, have privacy in visitation with family and others, and communicate, associate, and meet privately with any person of the individual's choice.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(11) requiring program providers to, "ensure that the individual who is living outside the family home is living in a residence that maximizes opportunities for interaction with community members to the greatest extent possible."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider develop and implement policies to ensure the individual's right to interaction within the community is not violated.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(15) requiring program providers to, "ensure that each individual has opportunities to develop relationships with peers with and without disabilities and receives support if the individual chooses to develop such relationships."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider to develop and implement policies to ensure an individual has the opportunity to develop relationships with peers, who may or may not have disabilities.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(19) requiring program providers to, "unless contraindications are documented with justification by the service planning team, ensure that an individual's routine provides opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and routines of other members of the community."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider to develop and implement policies to ensure an individual has opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and routines of other members of the community. Further, proposed §565.11(a)(6) would allow for restriction of an individual's right, under §565.5, if there was a documented justification for the restriction in the individual's behavior support plan.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(21) requiring program providers to, "unless contraindications are documented with justification by the service planning team, ensure that each individual is offered choices and opportunities for accessing and participating in community activities and experiences available to peers without disabilities."

Response: HHSC declines to make changes in response to this comment because proposed §565.5(b) requires the service provider to develop and implement policies to ensure an individual has an opportunity to participate in social, recreational, and community group activities. Further, proposed §565.11(a)(6) would allow for restriction of an individual's right, under §565.5, if there was a documented justification for the restriction in the individual's behavior support plan.

Comment: A commenter expressed concerns about removal of language in existing rules at 40 TAC §9.174(a)(22) requiring program providers to, "assist the individual to meet as many of the individual's needs as possible by using generic community services and resources in the same way and during the same hours as these generic services are used by the community at-large."

Response: HHSC declines to make changes in response to this comment as because proposed §565.5(b) requires the service provider develop and implement policies to ensure the individual's right to interaction within in the community is not violated.

Comment: A commenter expressed concerns about the removal of language in existing rules at 40 TAC §9.174(a)(51) requiring program providers to, "ensure that appropriate staff members, service providers, and the service coordinator are informed of a circumstance or event that occurs in an individual's life or a change to an individual's condition that may affect the provision of services to the individual."

Response: HHSC declines to make changes in response to this comment because proposed §565.11(a)(8) requires a program provider to inform appropriate staff members, service providers, and the service coordinator when a circumstance or even occurs in an individual's life or a change to an individual's condition affects the provision of services to the individual.

Comment: A commenter stated that while some individual rights remain in the proposed rules and the proposed rules require a program provider to inform and, in some cases, protect and promote the rights of an individual the rules do not require the provider to support the individual to exercise his or her rights. The commenter stated that this distinction is subtle, but important.

Cont'd...

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