The Texas Health and Human Services Commission (HHSC) adopts new §263.2001, concerning Definitions; §263.2003, concerning Types of Individualized Skills and Socialization; §263.2005, concerning Description of On-Site and Off-Site Individualized Skills and Socialization; §263.2007, concerning Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization; §263.2009, concerning Exceptions to Certain Requirements During Declaration of Disaster; §263.2011, concerning Provision of On-Site and Off-Site Individualized Skills and Socialization; §263.2013, concerning Provision of In-Home Individualized Skills and Socialization; §263.2015, concerning Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §263.2017, concerning Staffing Ratios for Off-Site Individualized Skills and Socialization; §263.2019, concerning Discontinuation of Day Habilitation; §263.2021, concerning Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC; §263.2023, concerning Service Provider Qualifications and Training for In-Home Individualized Skills and Socialization; §263.2025, concerning Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; and §263.2027, concerning Enhanced Staffing Rate, in Texas Administrative Code (TAC), new Chapter 263, Subchapter L, Individualized Skills and Socialization.

Sections 263.2001, 263.2005, 263.2011, 263.2017, 263.2023, 263.2025, and 263.2027 are adopted with changes to the proposed text as published in the August 12, 2022, issue of the Texas Register (47 TexReg 4818). These rules will be republished.

Sections 263.2003, 263.2007, 263.2009, 263.2013, 263.2015, 263.2019, and 263.2021 are adopted without changes to the proposed text as published in the August 12, 2022, issue of the Texas Register (47 TexReg 4818). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The adopted rules are necessary to comply with Title 42, Code of Federal Regulations (CFR), §441.301(c)(4)(i) - (v), which require home and community based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated in and supporting full access of individuals to the greater community. The Centers for Medicare and Medicaid Services (CMS) is requiring that states be in compliance with these regulations by March 17, 2023.

The 2020-21 General Appropriations Act (GAA), House Bill 1, 86th Legislature, Regular Session, 2019 (Article II, Health and Human Services Commission, Rider 21) required HHSC to develop a plan to replace day habilitation in its Medicaid §1915(c) waiver programs for individuals with intellectual and developmental disabilities with more integrated services that maximize participation and integration of the individuals in the community.

In accordance with Rider 21, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals.

The 2022-2023 GAA, Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the HCS, TxHmL, and DBMD Programs.

The adopted rules implement the plan required by Rider 21 to replace day habilitation with individualized skills and socialization in the HCS Program and will ensure HHSC's compliance with 42 CFR §441.301(c)(4)(i) - (v) by March 17, 2023.

The adopted rules describe the three types of individualized skills and socialization - on-site individualized skills and socialization, off-site individualized skills and socialization, and in-home individualized skills and socialization. The adopted rules require that on-site and off-site individualized skills and socialization be provided by an individualized skills and socialization provider.

The rules requiring a provider of individualized skills and socialization to be licensed in accordance with Texas Human Resources Code Chapter 103, are being adopted in 26 TAC Chapter 559, Subchapter H and published elsewhere in this issue of the Texas Register. The rules in Chapter 559, Subchapter H will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization.

The adopted rules include requirements for a program provider to make available both on-site and off-site individualized skills and socialization to individuals. The adopted rules include requirements for an individualized skills and socialization provider to meet staffing ratios based on levels of need for off-site individualized skills and socialization.

The adopted rules also include requirements for the provision of in-home individualized skills and socialization including criteria that must be met for an individual to receive the service and that the service must be provided in the residence of the individual receiving the service.

The adopted rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023.

To help providers to operate and provide services effectively during a disaster, the adopted rules provide that HHSC may allow program providers 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.

The rules implementing individualized skills and socialization in the TxHmL and DBMD Programs are being adopted in 26 TAC Chapter 262 Subchapter J and in 26 TAC Chapter 260, Subchapter I and published elsewhere in the same issue of the Texas Register.

COMMENTS

The 31-day comment period ended September 12, 2022.

During the 31-day comment period, HHSC received comments regarding the proposed rules from 88 commenters, including the ARC of the Capital Area, the ARC of San Antonio, the Mary Lee Foundation, LTO Ventures, Community Healthcore, Genesis Behavior, Aging and Disability Services Local Authority, MHMR of Tarrant County, Advantage Care Services, Down Home Ranch, EveryChild, Inc., Golden Rule Services, IDD Center in Beaumont, Ability Connection, Citizens Development Center, dba U&I, Texas Council of Community Centers, Inc. (Texas Council), the Private Providers Association of Texas (PPAT), Providers Alliance for Community Services of Texas (PACSTX), Mission Road Ministries, Lubbock Adult Day Center, 29 Acres, Tri-County Behavioral Healthcare, Metrocrest Community Services, Gateway Community Partners, Caregiver Long-term Care Services and Supports, and 51 individuals.

A summary of comments relating to the rules and HHSC's responses follows.

Comment: Multiple commenters expressed concerns that the rates adopted for individualized skills and socialization are not adequate.

Response: HHSC declines to make changes in response to the comments. The comments are outside the scope of this project because the rate methodology for individualized skills and socialization will be adopted in a separate rule project.

Comment: Multiple commenters requested that HHSC allow individualized skills and socialization to include activities in which an individual produces marketable goods and is paid below minimum wage for producing the goods in accordance with Section 14(c) of the Fair Labor Standards Act.

Response: HHSC declines to make these changes in response to the comments because the activities in question are not consistent with the home and community settings requirements in 42 CFR §441.301(c)(4)(i) - (v) and HHSC does not want these activities to hinder an individual's opportunity to obtain competitive employment in the community.

Comment: Multiple commenters expressed disagreement with the implementation of off-site individualized skills and socialization due to concerns about an individual's safety because there is a lack of a controlled environment while the individual is out in the community.

Response: HHSC declines to make changes in response to these comments. Individuals have a choice of whether they participate in off-site individualized skills and socialization. Also, the adopted rules include staffing ratios for service providers of off-site individualized skills and socialization to individuals receiving the service to help ensure the health and safety of the individuals.

Comment: Multiple commenters requested that HHSC delay the implementation of individualized skills and socialization. One commenter requested that HHSC host a one day working session to address providers' concerns and delay the implementation of the service.

Response: HHSC declines to delay the implementation of individualized skills and socialization because the implementation of this service is necessary to ensure HHSC's compliance with 42 CFR §441.301(c)(4) before the deadline of March 17, 2023, established by CMS. HHSC will continue to hold trainings regarding the implementation of individualized skills and socialization. No changes were made to the rules in response to this comment.

Comment: Several commenters requested the ability for individualized skills and socialization providers to provide only off-site individualized skills and socialization.

Response: Changes were made in response to comments in the licensing rules being adopted in 26 TAC Chapter 559 to allow an individualized skills and socialization provider to provide only off-site individualized skills and socialization. HHSC did not make changes in this rule project in response to this comment.

Comment: One commenter requested additional training opportunities for local intellectual and developmental disability authorities (LIDDAs) and program providers on the new service of individualized skills and socialization.

Response: HHSC agrees that training opportunities for LIDDAs and program providers on individualized skills and socialization is important and has continued to provide trainings on the new service of individualized skills and socialization. HHSC will inform stakeholders about future training opportunities available for the service. HHSC did not make changes in response to this comment.

Comment: One commenter expressed that the premise for individualized skills and socialization is unfounded based on the federal Home and Community-Based Settings rules and that there is nothing in the federal requirements that requires day habilitations to close. Other commenters expressed concerns about individualized skills and socialization causing current day habilitations to close.

Response: HHSC agrees that the home and community-based settings requirements in 42 CFR §441.301(c)(4)(i) - (v) do not require a location that provides day habilitation to close. HHSC determined, however, that day habilitation does not meet the requirements in 42 CFR §441.301(c)(4)(i) - (v) and, therefore, is implementing individualized skills and socialization to comply the federal regulation. Sites that currently provide day habilitation may choose to provide individualized skills and socialization in accordance with the new rules. HHSC did not make changes to the rules in response to this comment.

Comment: Several commenters requested increasing the daily, weekly, and monthly service limit for individualized skills and socialization.

Response: HHSC declines to make changes in response to this comment. Increasing the service limit for individualized skills and socialization would require additional analysis.

Comment: Several commenters requested changes in the staffing ratios for off-site individualized skills and socialization in order to provide for additional flexibility for program providers in light of current staffing shortages.

Response: HHSC revised proposed §263.2017 to allow for a higher staffing ratio for individuals with a level of need (LON) 1 or LON 5. Specifically, HHSC revised this section to require that the staffing ratio for off-site individualized skills and socialization for an individual with a LON 1 or LON 5 be no higher than one service provider of off-site individualized skills and socialization to eight individuals and other persons receiving the service (1:8) instead of a one service provider of off-site individualized skills and socialization to six individuals and other persons receiving the service (1:6).

Comment: One commenter requested additional language in proposed §263.2005 and §263.2007 for how HHSC will measure how individuals will meet their personal goals for individualized skills and socialization.

Response: HHSC declines to make changes in response to this comment because the individual's service planning team develops the person-directed plan for an individual in the HCS Program to accurately reflect and measure the individual's goals and desires.

Comment: Multiple commenters requested additional clarity regarding when public and private intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs) are allowed to provide individualized skills and socialization.

Response: In accordance with §263.2011(a), on-site and off-site individualized skills and socialization must be provided by an individualized skills and socialization provider. Based on direction from CMS, HHSC revised proposed §263.2005, Description of On-Site and Off-Site Individualized Skills and Socialization, by adding new subsection (d) to explain that individualized skills and socialization must not be provided in a setting that is presumed to have the qualities of an institution and to describe settings that have the qualities of an institution. HHSC added subsection (e) to proposed §263.2005 to provide that an individualized skills and socialization provider may provide individualized skills and socialization in a setting presumed to have the qualities of an institution if CMS has determined through heightened scrutiny that the setting meets certain criteria. HHSC also included definitions for the terms "hospital," "Medicaid HCBS," and "nursing facility" in proposed §263.2001 for clarity because these terms were used in proposed §263.2005(d) and (e).

Comment: One commenter requested future changes to the HCS Billing Requirements and HCS Handbook to clarify the difference between employment assistance and individualized skills and socialization.

Response: HHSC did not make changes in response to this comment but will take the comment under consideration when reviewing the HCS Billing Requirements.

Comment: One commenter requested that HHSC "continue to provide supportive services for persons with disabilities and special needs."

Response: HHSC provides many services that benefit and support persons with disabilities. No changes were made in response to this comment.

Comment: Several commenters requested that duplicative provisions that are included in the individualized skills and socialization licensure rules be removed from the rules published as adopted. One commenter specifically requested the removal of proposed §263.2023.

Response: HHSC agrees with the requested changes and deleted proposed §263.2011(d) and (e) and §263.2023(b) and revised proposed §263.2023(a) and (c) to delete references to on-site and off-site individualized skills and socialization because these provisions are addressed in 26 TAC Chapter 559, Subchapter H the licensure rules for individualized skills and socialization providers. HHSC also made a corresponding change in proposed §263.2025(d)(15) to correct the reference to 26 TAC §263.2023.

Comment: Several commenters requested revising the criteria in proposed §263.2007(b) to allow the service planning team to determine whether an individual may receive in-home individualized skills and socialization.

Response: HHSC declines to make the requested change because revising the criteria in proposed §263.2007(b) would require additional analysis.

Comment: Several commenters requested that HHSC allow for in-home individualized skills and socialization to be provided outside of the residence of the individual.

Response: HHSC declines to make changes in response to this comment because the primary characteristic of in-home individualized skills and socialization is that it must be provided in the individual's residence. On-site and off-site individualized skills and socialization are available for individuals to be provided outside of the individual's residence.

Comment: One commenter requested that HHSC align the definitions of "abuse," "neglect," and "exploitation" with the licensure requirements for individualized skills and socialization.

Response: HHSC removed the definitions of "abuse," "neglect," "exploitation," "physical abuse," "sexual abuse," and "verbal or emotional abuse" in the adopted rules because these terms are not used in the rules.

Comment: One commenter encouraged the use of the Corrective Action Plan (CAP) allowable by CMS to ensure that the service is feasible and adequately funded.

Response: HHSC did not make changes to the rules in response to this comment because this comment is outside of the scope of this project.

Comment: One commenter requested that language be added to proposed §263.2005(b)(1)-(2), Description of On-Site and Off-Site Individualized Skills and Socialization to add "education and transition" to the individual's goals.

Response: HHSC declines to make changes in response to this comment because the focus of individualized skills and socialization is an individual's employment goals or current or future volunteer goals, not education and transition goals.

Comment: One commenter requested that HHSC allow individualized skills and socialization to be provided through the consumer directed services (CDS) Option.

Response: HHSC declines to make changes in response to this comment because allowing individualized skills and socialization to be provided through the CDS option would require additional analysis.

Comment: One commenter requested that individuals be given the choice to participate or not to participate in off-site individualized skills and socialization.

Response: HHSC did not make changes in response to this comment because the new rules do not require an individual to receive any type of individualized skills and socialization.

Comment: One commenter requested that volunteers be allowed to become service providers of individualized skills and socialization, provided that they meet the service provider qualifications in the rule.