The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 26, Part 1, new Chapter 263, Home and Community-based Services (HCS) Program and Community First Choice (CFC), Subchapters A - K, comprised of §§263.1 - 263.9; 263.101 - 263.108; 263.201; 263.301 - 263.304; 263.401; 263.501 - 263.503; 263.601; 263.701 - 263.708; 263.801; 263.802; 263.901 - 263.903; and 263.1000.

BACKGROUND AND PURPOSE

The HCS Program is a Medicaid waiver program approved by the Centers for Medicare & Medicaid Services (CMS) under §1915(c) of the Social Security Act. This waiver program provides community-based services and supports to an eligible individual as an alternative to services provided in an institutional setting. One purpose of the proposal is to move certain HCS Program rules from 40 TAC Chapter 9, Subchapter D to 26 TAC Chapter 263. The repeals of §§9.151, 9.152, 9.154 - 9.170, 9.186, and 9.189 - 9.192 in 40 TAC Chapter 9, Subchapter D, are proposed elsewhere in this issue of the Texas Register.

This rule proposal does not include program provider certification principles that are currently in §§9.173 - 9.180, and §§9.181 - 9.183 and reviewed through the survey process. Rules containing the certification standards for the HCS Program will be proposed in 26 TAC Chapter 565 in a future issue of the Texas Register.

Another purpose of the proposed new rules is to ensure that the HCS Program complies with the requirements in Title 42, Code of Federal Regulations (CFR), Chapter IV, Subchapter C, Part 441, Subpart G, §441.301(c)(1) - (5). In 2014, CMS amended this regulation to establish new requirements for Home and Community-based Services (HCBS) Medicaid Programs, including requirements for HCBS Program settings and person-centered planning. CMS has given states until March 2023 to be in full compliance with the requirements in 42 CFR §441.301(c)(1) - (5). The proposed new rules will also ensure compliance with the requirements in 42 CFR Chapter IV, Subchapter C, Part 441, Subpart K, §441.530, regarding Home and Community-Based Setting; §441.535, regarding Assessment of functional need; and §441.540, regarding the Person-centered service plan, for Community First Choice (CFC) services because CFC services are available in the HCS Program.

Additional purposes of the proposed new rules are described below.

The proposed new rules implement Texas Government Code §531.02161(b)(4) which requires HHSC to ensure that, if cost effective, clinically effective, and allowed by federal law, a Medicaid recipient has the option to receive certain services, including occupational therapy (OT), physical therapy (PT), and speech-language pathology as a telehealth service.

The proposed new rules require the initial HCS eligibility assessments to be conducted in person and the Community First Choice (CFC) personal assistance services/habilitation (PAS/HAB) assessment to be completed in person unless certain conditions exist in which case the assessment may be completed by telehealth, telephone, or video conferencing. These requirements help ensure the assessments are thorough and accurate.

The proposed new rules include provisions regarding the denial, suspension, reduction, or termination of an individual's HCS Program services to explain HHSC's process in taking one of these actions. The proposed new rules change the existing service coordination monitoring requirement from 90 days to 30 days during an individual's suspension.

The proposed new rules require a program provider and local intellectual and developmental disability authority (LIDDA) to submit a translation of non-English documentation submitted to HHSC. The purpose of the proposed new rule is to help ensure that HHSC's reviews of documentation are efficient.

The proposed new rules require a registered nurse (RN) to complete a comprehensive nursing assessment of an individual in person under specified circumstances. This requirement is included so that the entire comprehensive nursing assessment is completed when necessary to help ensure the health and safety of an individual.

The proposed new rules codify HHSC's current practice of increasing a level of need (LON) 1, 5, or 8 to the next LON because of an individual's high medical needs if the individual meets certain criteria. The proposed new rule also codifies current practice related to individuals transferring to another program provider or choosing a different service delivery option in the HCS Program.

The proposed new rules provide that HHSC may allow program providers and service coordinators to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. This provision is added to help ensure that providers and service coordinators are able to provide services effectively during a disaster.

SECTION-BY-SECTION SUMMARY

New Subchapter A, General Provisions

Proposed new §263.1, Purpose, describes the purpose of the rules.

Proposed new §263.2, Application, describes the persons to whom Chapter 263 applies.

Proposed new §263.3, Definitions, defines the terms used in the new chapter including definitions for the following terms: "audio-only," "comprehensive nursing assessment," "delegated nursing task," "DID--Determination of intellectual disability," "DID report," "EVV--Electronic visit verification," "health maintenance activities," "in person or in-person," "platform," "professional therapies," "store and forward technology," "Supported Decision-Making Agreement," "synchronous audio-visual," "TAC--Texas Administrative Code," "telehealth service," "transfer IPC," and "videoconferencing."

Proposed new §263.4, Description of the HCS Program and CFC, provides descriptions of the HCS Program and CFC including provisions about waiver contract areas and the consumer directed services option.

Proposed new §263.5, Description of HCS Program Services, provides a description of the HCS Program services available through the HCS Program.

Proposed new §263.6, Description of CFC Services, provides a description of the CFC services available through the HCS Program and explains that individuals receiving host home/companion care, supervised living, or residential support may not receive a CFC service.

Proposed new §263.7, Requirement for Translation, requires program providers and LIDDAs to, when they submit documentation to HHSC containing information that is not in English, submit a translation of the information in English at the same time.

Proposed new §263.8, Comprehensive Nursing Assessment, requires an RN to complete the comprehensive nursing assessment for an applicant or individual who has nursing on their individual plan of care (IPC), using the HHSC Comprehensive Nursing Assessment form. The proposed new rule also specifies when a comprehensive nursing assessment must be completed in person, and when the comprehensive nursing assessment does not have to be completed in person.

Proposed new §263.9, Providing Physical Therapy, Occupational Therapy, and Speech and Language Pathology as a Telehealth Service, allows a service provider of PT, OT, or speech and language pathology to provide PT, OT, or speech and language pathology to an individual as a telehealth service except for certain activities that must be performed in person in accordance with the Texas Medicaid Provider Procedures Manual. The proposed new rule also describes the requirements for providing PT, OT, or speech and language pathology as a telehealth service, including obtaining the individual's or legally authorized representative's (LAR) consent before the provision of the telehealth service.

New Subchapter B, Eligibility, Enrollment, and Review

Proposed new §263.101, Eligibility Criteria for HCS Program Services and CFC Services, describes the eligibility criteria for HCS Program Services and CFC Services. The proposed rule is different from the current rule regarding eligibility criteria because the proposed rule specifically lists a hospital, an inpatient chemical dependency treatment facility, and a mental health facility as settings in which an individual cannot reside instead of using the phrase, "a facility licensed or subject to being licensed by the Department of State Health Services." In addition, the proposed rule is different from the current rule because the proposed rule does not include as a prohibited residential setting, a setting in which two or more dwellings create a distinguishable residential area. This restriction is included in proposed new §263.501, Requirements for Service Settings.

Proposed new §263.102, Calculation of Co-payment, describes the method for determining an individual's or couple's co-payment for sharing in the cost of HCS Program services because their income exceeds the maximum personal needs allowance.

Proposed new §263.103, HCS Interest List, describes how HHSC maintains the interest list for individuals interested in receiving services in the HCS Program. The proposed rule is different from the current rule in how HHSC assigns an interest list date to an applicant after the applicant's name is removed from the interest list in accordance with subsection (g)(1) - (4) and the applicant requests to be placed back on the list. In the current rule, if such an applicant makes the request within 90 days after their name was removed from the list, HHSC adds the applicant's name to the HCS interest list using the interest list date that was in effect at the time the applicant's name was removed from the list. In the proposed rule, HHSC adds the applicant's name to the HCS interest list in this situation using the interest list date that was in effect at the time the applicant's name was removed, only if the request to be placed back on the list is the applicant's first request. Further, if the applicant's request to be placed back on the list is made more than 90 days after their name was removed from the list and the request is the applicant's first request, the proposed rule provides that HHSC adds the applicant's name to the interest list using the interest list date that was in effect at the time the applicant's name was removed from the list, if HHSC determines that extenuating circumstances exist. If a request to be placed back on an interest by an applicant in these situations is not the applicant's first request, the proposed rule provides that the applicant's name is added back using the date of the request as the interest list date. The reason for these changes is to remove an incentive for an applicant to repeatedly decline a written offer of HCS Program services.

Proposed new §263.104, Process for Enrollment of Applicants, describes the process for offering an applicant enrollment and enrolling an applicant into the HCS Program.

Proposed new §263.105, LOC Determination, describes the process for a LIDDA to request a level of care (LOC) from HHSC for an applicant and for a program provider to request an LOC from HHSC for an individual.

Proposed new §263.106, LON Assignment, describes the process for requesting a level of need (LON) from HHSC for an applicant and an individual and the LONs that may be assigned. The proposed rule also describes the criteria that must exist and the process for an individual's LON to be increased because of the individual's dangerous behavior or high medical needs.

Proposed new §263.107, HHSC Review of LON, describes the process by which HHSC reviews an LON.

Proposed new §263.108, Reconsideration of LON Assignment, describes the process by which a program provider may request a reconsideration by HHSC of an LON assignment, if the program provider disagrees with an LON assignment.

New Subchapter C, Person-Centered Planning

Proposed new §263.201, Person-Centered Planning Process, requires a service coordinator and program provider to ensure the person-centered planning process is led by an individual to the maximum extent possible and that the person-centered planning process be used to develop a person directed plan (PDP), implementation plan, initial IPC, renewal IPC, revised IPC, service backup plan, and transportation plan. The proposed new rule also describes the activities involved in the person-centered planning process.

New Subchapter D, Development and Review of an IPC

Proposed new §263.301, IPC Requirements, describes the requirements of an IPC.

Proposed new §263.302, Renewal and Revision of an IPC, describes the process for developing a renewal IPC and a revision IPC. The proposed rule includes several requirements that are not part of the current rule regarding renewal IPCs and revision IPCs. Specifically, the proposed rule requires the service planning team to complete the HHSC HCS/TxHmL CFC PAS/HAB Assessment form when revising the IPC to add CFC PAS/HAB or update the HHSC HCS/TxHmL CFC PAS/HAB Assessment form when revising the IPC to change the amount of CFC PAS/HAB. This requirement helps ensure a consistent method for determining the number of CFC PAS/HAB hours during an IPC revision. The proposed rule requires that the service planning team convene a meeting to update the PDP and develop a revised IPC if the addition, removal or change of a service results in the addition, removal, or change to an outcome in the PDP. If the change made to an existing service does not require the addition, removal, or a change to an outcome in the PDP, the proposed rule requires the service coordinator to document the reasons for the IPC revision. The proposed rule also requires the program provider to convene a meeting with the individual or LAR to revise the implementation plans for HCS Program services, and CFC services and transportation plan. The proposed rule requires the service coordinator to send a copy of the updated PDP and HHSC HCS/TxHmL CFC PAS/HAB Assessment form to the program provider, the individual or LAR and, if applicable, the financial management services agency (FMSA). The proposed rule provides that, for an individual who is receiving all service through the consumer directed services (CDS) option, the service coordinator is not required to comply with the requirement to review and agree or disagree with the IPC information entered in the HHSC data system.

Proposed new §263.303, HHSC Review of an IPC, describes HHSC's process for reviewing an IPC. The proposed rule provides that HHSC may review an IPC to determine if it meets the IPC requirements described in proposed §263.301(c), relating to IPC Requirements. In addition, the proposed rule codifies current practice that HHSC may deny or reduce an HCS or CFC service if an IPC does not meet requirements in §263.301(c).

Proposed new §263.304, Service Limits, lists the service limits for certain HCS Program services provided to an individual. The proposed rule includes several provisions that are not part of the current rule regarding service limits. Specifically, the proposed rule allows an individual to use $300 per IPC year for maintenance of a minor home modification (MHM) before reaching the lifetime limit for MHM. Under the current rule, the lifetime limit of $7,500 must be exhausted prior to the use of the $300 maintenance fee. This change gives the individual flexibility to use the MHM funds for maintenance. The proposed rule provides that the service limit is for respite and in-home respite combined. The proposed rule provides that the limit for day habilitation and in-home day habilitation is combined to clarify existing policy. The proposed rule also provides that a program provider may request authorization of a requisition fee for an adaptive aid that is in addition to the $10,000 service limit to codify current practice.

New Subchapter E, CDS Option

Proposed new §263.401, CDS Option, provides that if certain services are on an applicant's PDP, a service coordinator must perform specified activities including informing the applicant about the CDS option. The proposed rule also provides that if an applicant or individual chooses to receive a service through the CDS option, a service coordinator must perform specific activities including documenting the choice of FMSA. The proposed rule requires the service coordinator to provide information about the CDS option to individuals annually. The proposed rule describes the requirements regarding a recommendation by the service coordinator that HHSC terminate an individual's participation in the CDS option.

New Subchapter F, Requirements for Service Settings and Program Provider Owned or Controlled Residential Settings

Proposed new §263.501, Requirements for Service Settings, requires a program provider to ensure that a setting in which individual receives HCS Program and CFC services meet certain criteria including that it's based on the individual's preferences, and needs; it supports the individual's access to the greater community to the same degree as a person not enrolled in a Medicaid waiver program; it ensures the individual's rights of privacy, dignity and respect, and it optimizes an individual's independence in making life choices. In addition, the proposed rule requires that a setting in which an individual receives an HCS Program service or CFC service is not a setting presumed to have the qualities of an institution except that an HCS Program service or a CFC service may be provided in a setting that is presumed to have the qualities of an institution if CMS determines through a heightened scrutiny review that the setting does not have the qualities of an institution and does have the qualities of home and community-based settings.

Proposed new §263.502, Requirements for Program Provider Owned or Controlled Residential Settings, requires the program provider to ensure certain criteria in each residence in which residential support, supervised living, or host home/companion care is provided, including that an individual has privacy in the individual's bedroom, has an operable lock on an individual's bedroom door at no cost to the individual, and has the freedom and support to control the individual's schedule and activities that are not part of the implementation plan. The proposed rule also requires the program provider to notify the service coordinator if the program provider becomes aware that a modification to the criteria is needed and requires a service coordinator given such notification to convene a service planning team meeting to update the PDP.