The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§565.2, 565.3, 565.5, 565.7, 565.9, 565.11, 565.13, 565.15. 565.17, 565.19, 565.21, 565.23, 565.25, 565.27, 565.29, 565.31, 565.33, 565.35, 565.37, 565.39, 565.41, 565.43, 565.47, and 565.49 in Title 26 Texas Administrative Code Chapter 565, Home and Community-Based Services (HCS) Program and Community First Choice (CFC) Certification Standards.

BACKGROUND AND PURPOSE

The purpose of the proposal is to draft new rules that describe the regulatory certification standards for HCS Medicaid waiver program providers. Currently, rules describing HCS certification principles and rules regarding regulatory processes for HCS waiver program providers are in Title 40, Chapter 9, Subchapter D of the Texas Administrative Code.

The proposed rules describe certification standards regarding service delivery, rights of individuals, requirements related to abuse, neglect, and exploitation, staff member and service providers' requirements, and quality assurance. The proposed rules also include new requirements for emergency preparedness, fire drills, and evacuation drills in all residential types in the HCS program. Current requirements listed on the waiver survey and certification checklist that are not currently in rule are included in the proposed rules. The proposed rules set forth recommendations for increased oversight of HCS host home/companion care homes, clarify restraint and seclusion requirements, and add language for obtaining and using enclosed beds. The proposed rules also modify HHSC surveyor requirements to allow for survey flexibility as the HCS waiver program evolves.

The proposed rules reflect stakeholder engagement over the past two years.

SECTION-BY-SECTION SUMMARY

Proposed new sections listed in this paragraph replace and update rules in 40 TAC, Part 1, Chapter 9, Subchapter D, concerning Home and Community-based Services (HCS) Program. Sections 9.153, 9.171 - 9.175, 9.177 - 9.180, 9.182, 9.183, 9.187, and 9.188 are proposed for repeal elsewhere in this issue of the Texas Register.

The proposal changes the title of Chapter 565 from Home And Community-Based (HCS) Program and Community First Choice (CFC) Certification Standards to Home and Community-Based Services (HCS) Program Certification Standards.

Proposed new Subchapter B, Overview includes §565.2, Purpose, and §565.3, Definitions.

Proposed new §565.2, Purpose, describes the purpose and scope of the Home and Community-based program.

Proposed new §565.3, Definitions, describes terms used in the Home and Community-based program as it relates to Long-term Care Regulation and the Certification Standards.

Proposed new Subchapter C, Certification Standards: Individual's Rights, includes §565.5, Rights of Individuals.

Proposed new §565.5 Rights of Individuals, describes individual's rights in HCS programs and program providers' responsibility to ensure those rights are exercised.

Proposed new Subchapter D, Certification Standards: Staff member and Service Provider Requirements, includes §565.7, Staff Member and Service Provider Requirements; and §565.9, Program Provider Requirements.

Proposed new §565.7, Staff Member and Service Provider Requirements, describes the hiring requirements for a staff member and service provider of program providers.

Proposed new §565.9, Program Provider Requirements, describes the required registry checks program providers must perform on staff members and service providers.

Proposed new Subchapter E, Certification Standards: Service Delivery, includes §565.11, Service Delivery; §565.13, Nursing; §565.15, Individuals under the age of 22; §565.17, Pre-enrollment Minor Home Modification; §565.19, Community First Choice (CFC) Emergency Response Systems (ERS) Services; and §565.21, Transitional Assistance Service (TAS).

Proposed new §565.11, Service Delivery, describes the services available to an individual and how providers should deliver them, documentation program providers must maintain, instructions for back up plans, and suspension of services.

Proposed new §565.13, Nursing, describes the nursing services and how to deliver them along with instructions for the comprehensive nursing assessment. Proposed new §565.15, Individuals under the age of 22, describes additional requirements related to individuals who are under the age of 22.

Proposed new §565.17, Pre-enrollment Minor Home Modification, outlines mobility and accessibility requirements and minor home modifications.

Proposed new §565.19, Community First Choice (CFC) Emergency Response Systems (ERS) Services, details the criteria for services, how to deliver it, and installing/testing instructions.

Proposed new §565.21, Transitional Assistance Service (TAS), describes the TAS service and instructions for how to provide the service.

Proposed new Subchapter F, Certification Standards: Quality Assurance, includes §565.23, Residential Requirements; §565.25, Programmatic Requirements; §565.27, Finances and Rent; §565.29, Behavior Support Plan; §565.31, Requirements Related to Abuse, Neglect, and Exploitation; §565.33, Restraint; §565.35, Enclosed Beds; §565.37, Protective Devices; and §565.39 Prohibitions

Proposed new §565.23, Residential Requirements, describes the program providers' responsibilities for upkeep and maintenance of the residences. Requirements address outside areas, floors, walls and ceilings, kitchen, bathroom, and storage of chemicals and toxins. Requirements also include conditions for means of egress, emergency response plans, infection control, medication administration, fire extinguishers, and fire drills.

Proposed new §565.25, Programmatic Requirements, outlines the inspections program providers must do before an individual moves into a residence, reporting requirements for an individual's death and critical incidents, identification of an alternate contact to the Chief Executive Officer, retaliation prohibitions, and annual reviews.

Proposed new §565.27, Finances and Rent, establishes how program providers should charge an individual for rent and board in a three and four-person residence, how program providers should manage an individual's funds if they're the payee, and restrictions on what program providers cannot charge the individual.

Proposed new §565.29, Behavior Support Plan, outlines the process for obtaining a behavior support plan for an individual.

Proposed new §565.31, Requirements Related to Abuse, Neglect, and Exploitation, outlines program providers' responsibilities for documenting, reporting, and ensuring safety of the individual when incidents of abuse, neglect, and exploitation occur.

Proposed new §565.33, Restraints, describes when program providers may use restraint and when they must not use restraint, including required assessments, documentation, and notifications when restraint is used.

Proposed new §565.35, Enclosed Beds, describes program providers' responsibilities if they allow an individual to use an enclosed bed in a residence and the end date for all enclosed beds.

Proposed new §565.37, Protective Devices, describes program providers' responsibilities when implementing the use of protective devices, including required documentation and assessments.

Proposed new §565.39, Prohibitions, states that program providers must not use seclusion or an enclosed bed for behavioral management.

Proposed new Subchapter G, HHSC Actions, includes §565.41, HHSC Surveys of a Program Provider; §565.43, HHSC Approval of Four-Person Residences; §565.47, Amelioration; and §565.49, Program Provider Compliance and Corrective Action.

Proposed new §565.41, HHSC Surveys of a Program Provider, lists the type and frequency of surveys conducted by HHSC.

Proposed new §565.43, HHSC Approval of Four-Person Residences, describes how to obtain approval of a four-person residence.

Proposed new §565.47, Amelioration, allows HHSC to give program providers the opportunity for amelioration, in lieu of an administrative penalty for a violation. The proposed rule describes the circumstances under which program providers are, and are not, allowed the opportunity for amelioration and requirements for program providers seeking amelioration. The proposed rule requires HHSC to notify program providers regarding plan approval, or payment if a plan is denied, and it allows program providers to appeal the administrative penalty in accordance with 40 TAC §49.541 (relating to Contractor's Right to Appeal).

Proposed new §565.49, Program Provider Compliance and Corrective Action, outlines the requirements of HHSC, if it determines that program providers are, or are not, in compliance with the certification standards. The proposed rule requires program providers to submit a plan of correction for each concern identified by HHSC and outlines what happens if the plan needs to be revised, or if it is approved or not approved, and it details follow-up steps. The proposed rule describes administrative penalties for critical violations and HHSC's responsibilities in conducting surveys and citing program providers for violation of a certification standards.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new rules;

(6) the proposed rules will not expand, limit, or repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities to comply with the proposed rules.

HHSC has no basis for an expectation of whether there will be an adverse economic effect on small businesses, micro-businesses, or rural communities. While a program providers' noncompliance with the proposed regulations may result in administrative penalties, HHSC does not have sufficient data to estimate the cost to those businesses.

HHSC determined that alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities would not be consistent with ensuring the health and safety of individuals with intellectual and physical disabilities.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be the health and safety of the individuals in the HCS program. HCS program providers, HHSC staff, and the public will benefit from the proposed rules because rules will clarify providers' requirements, which are intended to ensure health and safety.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed rules update, clarify, and codify existing HHSC agency practices and requirements.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Kelly Donaldson at (512) 438-3161 in HHSC Regulatory Services Division.

Written comments on the proposal may be submitted to HHSC Long-term Care Regulation Policy and Rules, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751, or by email to HHSCLTCRRules@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 22R074" in the subject line.

STATUTORY AUTHORITY

The proposed new sections are authorized by 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 Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The proposed new sections implement Texas Government Code §531.0055, §531.021, and Chapter 531, Subchapter A-1, and Texas Human Resources Code §32.021.