The Texas Health and Human Services Commission (HHSC) adopts Title 26, Part 1, new Chapter 263, Home and Community-based Services (HCS) Program and Community First Choice (CFC), consisting of Subchapters A - K, comprising new §§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.

Sections 263.3, 263.5, 263.8, 263.9, 263.104, 263.107, 263.201, 263.302, 263.501 - 263.503, 263.601, 263.701, 263.702, 263.707, 263.708, 263.901, 263.902 and 263.1000 are adopted with changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5667). These rules will be republished.

Sections 263.1, 263.2, 263.4, 263.6, 263.7, 263.101, 263.102, 263.103, 263.105, 263.106, 263.108, 263.301, 263.303, 263.304, 263.401, 263.703, 263.704, 263.705, 263.706, 263.801, 263.802, and 263.903 are adopted without changes to the proposed text as published in the September 16, 2022, issue of the Texas Register (47 TexReg 5667). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

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 new sections 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 adopted elsewhere in this issue of the Texas Register.

The adopted rules do not include program provider certification principles that are currently in 40 TAC Chapter 9, Subchapter D, §§9.173 - 9.175 and §§9.177 -9.183. HHSC will propose rules containing the certification standards for the HCS Program in 26 TAC Chapter 565 in a different rule project.

The adopted rules are necessary to comply with 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 settings and person-centered planning. CMS has given states until March 17, 2023, to fully comply with the requirements in 42 CFR §441.301(c)(1) - (5). The adopted rules 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 to individuals enrolled in the HCS Program.

The adopted 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 adopted rules require the initial HCS eligibility assessments to be conducted in person and the 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 adopted rules include provisions regarding the denial, suspension, reduction, or termination of an individual's services in the HCS Program to explain HHSC's process in taking one of these actions. The adopted rules also change the existing service coordination monitoring requirement from 90 days to 30 days during an individual's suspension.

The adopted 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 adopted rules help ensure that HHSC's reviews of documentation are efficient.

The adopted rules require a registered nurse (RN) to complete a comprehensive nursing assessment of an individual in person under specified circumstances. This requirement is included to ensure the comprehensive nursing assessment is clinically effective, thorough, and accurate and to help ensure the health and safety of an individual.

The adopted 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 adopted rules also codify current practice related to individuals in the HCS Program transferring to another program provider or choosing a different service delivery option.

The adopted 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 helps to ensure that program providers and service coordinators are able to provide services effectively during a disaster.

COMMENTS

The 31-day comment period ended October 17, 2022.

During the 31-day comment period that ended October 17, 2022, and the public hearing held on September 26, 2022, HHSC received comments regarding the proposed rules from 197 commenters, including the Coalition of Texans with Disabilities; Disability Rights Texas; EveryChild, Inc.; Greenleaf Neurodiversity Community Center; Families for Effective Autism Treatment - Houston; Helen Farabee Centers; Lifetime Living Inc.; LTO Ventures; Providers Alliance for Community Services Texas (PACSTX); Private Providers Association of Texas (PPAT); Texas Council of Community Centers; Texas Parent to Parent; 29 Acres; and families and advocates of individuals with autism and neurodiversity.

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

COMMENT: One commenter suggested that the terms and definitions in proposed §263.3 and the terms and definitions in the HCS Billing Requirements be consistent and expressed concerns about the complexity that inconsistent definitions cause. Another commenter requested that HHSC provide the entire definition of a term instead of including a reference to another rule.

RESPONSE: HHSC declines to make changes in response to these comments. The commenter suggesting the need for consistent definitions did not identify the terms and definitions in question, however, some terms in the HCS Billing Requirements may have different definitions than those in proposed §263.3 because the context in which the terms are used in the HCS Billing Requirements is different than that in proposed Chapter 263. HHSC will take this comment under consideration when reviewing the HCS Billing Requirements. HHSC references another rule to define a term instead of providing the entire definition to avoid inconsistent definitions if the definition of the term in the other rule changes.

COMMENT: One commenter requested that HHSC revise the definition of "auxiliary aid" to allow the use of an auxiliary aid when an individual is communicating with others, not just during the person-centered planning process.

RESPONSE: HHSC declines to make changes in response to this comment because the term "auxiliary aid" is only used in §263.201 regarding the Person-Centered Planning Process.

COMMENT: Two commenters requested that HHSC include "integrated" in the term "competitive employment" or in its definition.

RESPONSE: HHSC declines to make changes in response to this comment. The term "competitive employment" is used only in the description of "supported employment" in §263.5. In that context, "competitive employment" means employment that pays an individual at least minimum wage if the individual is not self-employed and does not necessarily include employment integrated into the community.

COMMENT: One commenter recommended that HHSC create a separate definition for "representative payee" that is independent of the definition for "legally authorized representative (LAR)" because using both terms synonymously in the rules is confusing.

RESPONSE: HHSC declines to make changes in response to this comment because a representative payee is a type of LAR.

COMMENT: One commenter expressed appreciation that HHSC modified the "natural supports" definition to clarify that assistance provided by a natural support is voluntary and helps to achieve an individual's identified goals.

RESPONSE: HHSC appreciates the commenter's support for the proposed rule.

COMMENT: One commenter requested that HHSC remove the requirement to use an HHSC form for the person-directed plan (PDP) and add that the outcome of the PDP ensures the applicant or individual's "quality of life." The commenter also requested that HHSC restructure the definition. Another commenter requested that HHSC remove the reference to "applicant" in the PDP definition.

RESPONSE: HHSC declines to remove the requirement for an HHSC form for a PDP because requiring the HHSC form helps ensure that service coordinators are consistent in the documentation of information on the PDP and assists in timely and efficient HHSC reviews. HHSC declines to add "quality of life" to the PDP definition because the requirement in the definition for documentation of an individual's desired outcomes addresses ensuring a quality of life for the individual. HHSC declines to restructure the definition because the proposed structure is clear. HHSC also declines to remove the reference to an "applicant" because the requirement for a PDP applies to an applicant.

COMMENT: One commenter requested that HHSC remove the word "severe" used in the definition of "related condition" because "severe" is a subjective term.

RESPONSE: HHSC declines to make this change because the inclusion of "severe" in the definition of "related condition" is consistent with the definition of "persons with related condition" in 42 CFR §435.1010.

COMMENT: One commenter requested that HHSC revise the definition of "service planning team" to include a permanency planner. Another commenter suggested that the word "for" be changed to "to" in the definition of "service planning team".

RESPONSE: HHSC agrees with the commenter and revised the definition of "service planning team" in §263.3 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. In addition, HHSC added a definition for "permanency planner" in proposed §263.3. HHSC declines to make the grammatical change requested because it is unnecessary.

COMMENT: One commenter expressed appreciation that HHSC included "integration" in the description of HCS Program services.

RESPONSE: HHSC appreciates the commenter's support for the proposed rule.

COMMENT: One commenter requested that HHSC expand the description of adaptive aids to include enabling an individual to maintain or increase the ability to perform "instrumental activities of daily living (IADLS) and health related tasks." Another commenter suggested including iPads/tablets in the list of billable adaptive aid items.

RESPONSE: The description of adaptive aids in proposed §263.5(a)(1), which provides that adaptive aids enable an individual to maintain or increase the ability to perform activities of daily living (ADLs) or the ability to perceive, control, or communicate with the environment in which the individual lives, is based on the HCS waiver application. HHSC declines to revise proposed §263.5(a)(1) 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 make changes in response to the second comment because it is outside the scope of this rule project. The list of billable adaptive aids is addressed in the HCS Billing Requirements and not the program rules.

COMMENT: One commenter expressed appreciation that HHSC added that behavioral support "improve an individual's quality of life." The commenter also requested that HHSC allow a pre-enrollment behavioral assessment because having an assessment completed post enrollment delays an individual's access to behavior support.

Response: HHSC declines to make changes in response to this comment. A behavioral assessment is a billable activity of behavioral support. The requested change is inconsistent with the HCS waiver application and would require additional analysis and an amendment to the HCS waiver application with CMS approval to allow for the provision of behavioral support before an individual enrolls in the HCS Program.

COMMENT: One commenter requested allowing in-home day habilitation to be provided outside of the residence of an individual to allow an individual who receives in-home day habilitation to participate in community activities when appropriate.

RESPONSE: HHSC declines to make changes in response to this comment because the primary characteristic of in-home day habilitation is that it be provided in the individual's residence. Day habilitation is an HCS Program service that is provided outside of an individual's residence.

COMMENT: One commenter requested replacing "provision of residential services" with "provision of personal assistant services and habilitation" in the description of host home/companion care.

RESPONSE: HHSC declines to make changes in proposed §263.5(a)(19) in response to this comment. Host home/companion care is described as "residential assistance" in proposed §263.5(a)(19), not the "provision of residential services." This broad description is used because host home/companion care includes a variety of activities and is not limited to "personal assistant services and habilitation."

COMMENT: One commenter requested that remote supervision be included as a covered service in the HCS Program. Another commenter requested including protective supervision as a component of supported home living.

RESPONSE: HHSC declines to make changes in response to these comments. Revising the rules to add remote supervision as a new service in the HCS Program and include protective supervision as a component of supported home living is inconsistent with the HCS waiver application and would require additional analysis and a change to the HCS waiver application with CMS approval.

COMMENT: One commenter requested renaming "respite" as "out-of-home respite" for clarity. The commenter also requested allowing individuals living in host home/companion care settings to access respite.

RESPONSE: HHSC declines to make changes to rename "respite" as "out-of-home respite" because the service description for respite in proposed §263.5(a)(22) specifies that it must be provided in a location other than the individual's home and is distinguished from the service description for in-home respite. In addition, changing the name of the service would require numerous changes in other HHSC publications including rules and handbooks. HHSC declines to make changes to allow individuals living in host home/companion care settings to have access to respite because respite provides temporary relief only to unpaid caregivers.

COMMENT: A commenter requested that HHSC remove the word "intensive" from the description of supported employment because it is subjective and may lead to confusion.

RESPONSE: The description of supported employment in proposed §263.5(a)(25), which provides that "supported employment is assistance, in order to sustain competitive employment, to an individual who, because of a disability, requires intensive, ongoing support," is based on language in the HCS waiver application. HHSC declines to revise §263.5(a)(25) 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.

COMMENT: One commenter requested that HHSC revise the proposed rules to allow an applicant to receive transition assistance services (TAS) if the applicant is being discharged from a psychiatric hospital or residential treatment center (in addition to being discharged from an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID), nursing facility, or general residential operation) and enrolling into the HCS Program. Another commenter expressed a concern with grouping host home services and companion care services together in the HCS Program. Specifically, the commenter requested that HHSC revise the rules to allow an applicant who is moving into a host home/companion care residence that is the applicant's residence, not the service provider's residence, to receive the same amount of TAS as an applicant who is moving into their own residence but not receiving host home/companion care.

RESPONSE: Based on the HCS waiver application, proposed §263.5(a)(26) describes TAS as assistance to an applicant in setting up a household in the community before being discharged from a nursing facility, an ICF/IID, or a general residential operation and proposed §263.5(a)(26)(B) describes the specific benefits covered under TAS depending on whether residential support, supervised living, or host home/companion care is on the applicant's initial individual plan of care (IPC). 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 HCS waiver application with CMS approval.

COMMENT: One commenter expressed concern that HHSC is discriminating against HCS participants by prohibiting qualified household members from providing CFC services.

RESPONSE: HHSC did not make changes in response to this comment because it is outside the scope of this rule project. Qualifications of service providers in the HCS Program are not addressed in these proposed rules.

COMMENT: One commenter requested that transportation be added as a component of the CFC service because it is vital in fulfilling CFC activities such as community integration.

RESPONSE: Based on the Medicaid State Plan, proposed §263.6 includes a description of CFC PAS/HAB and the description does not include transportation as a CFC PAS/HAB activity. In addition, transportation is an available service through supported home living in the HCS Program. HHSC declines to make changes in response to this comment.