The Executive Commissioner of Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) Title 26, Part 1, Chapter 565, Home and Community-based Program (HCS) Certification Standards, 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.

New §§565.3, 565.5, 565.9, 565.11, 565.13, 565.15, 565.17, 565.19, 565.21, 565.23, 565.25, 565.27, 565.31, 565.35, 565.37, and 565.49 are adopted with changes to the proposed text as published in the February 17, 2023, issue of the Texas Register (48 TexReg 789). These rules will be republished. These rules contain references to §565.45, Administrative Penalties, which is being administratively transferred from 40 TAC §9.181, effective the same day these rules are adopted.

New §§565.2, 565.7, 565.29, 565.33, 565.39, 565.41, 565.43, and 565.47 are adopted without changes to the proposed text as published in the February 17, 2023, issue of the Texas Register (48 TexReg 789). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to describe the regulatory certification standards for HCS Medicaid waiver program providers.

The rules describe certification standards regarding service delivery; rights of individuals; requirements related to abuse, neglect, and exploitation; staff member and service provider requirements; and quality assurance. The rules also include requirements from the program's residential checklist along with new requirements for emergency preparedness, fire drills, and evacuation drills in all residential types in the HCS program. The rules set forth recommendations for increased oversight of HCS host home/companion care homes, clarify restraint and seclusion requirements, and add language for restricting the use of enclosed beds. The rules also modify HHSC surveyor requirements to allow for survey flexibility as the HCS waiver program evolves.

COMMENTS

The 31-day comment period ended March 20, 2023. During this period, HHSC received 57 comments regarding the proposed rules from three commenters: Every Child, Inc., Private Provider's Alliance of Texas, and Provider's Alliance for Community Services of Texas. A summary of comments and HHSC's responses follows.

Comment: A commenter recommended removing the term "emotional well-being" from the definition of "actual harm" because the term is subjective, not defined, and has been used broadly to establish harm.

Response: The concept of an individual's emotional well-being as it relates to harm is consistently used across Long-Term Care Regulation programs, including similar community settings for individuals diagnosed with intellectual disabilities or related conditions. Therefore, HHSC declines to make changes to this definition without further dialogue with stakeholders, advocates, and providers.

Comment: A commenter said it is unclear why there is "emotional injury" in the definition of neglect in §565.3(76) but not in the definition of neglect in the Texas Department of Family and Protective Services (DFPS) rules. The commenter asked what the definition of emotional injury is and stated that the definition of neglect should match that of DFPS's definition and include DFPS's definition for emotional harm, which is "a highly unpleasant mental reaction with obvious signs of distress, such as anguish, grief, fright, humiliation, or fury." The commenter added that emotional harm is innate in living and associating with other people, whether a roommate or direct care staff, but does not constitute neglect or abuse. The commenter recommended, at a minimum, adding a definition for "emotional harm," and that the outcome must be tied to abuse or neglect.

Response: HHSC declines to make changes in response to these comments because the language "emotional injury" is used in the HHSC definition of neglect located in 26 TAC §711.19, How is neglect defined? HHSC is the investigative authority for HCS abuse, neglect, and exploitation allegations, and as such, this term is consistent for the definition of neglect in both HCS and investigative rules.

Comment: A commenter stated that the definition of relative in §565.3(99) is different from what HHSC is using for "relative host home."

Response: HHSC declines to make changes in response to this comment because proposed §565.3(99) is used in context with HHSC Billing Requirements.

Comment: A commenter recommended deleting §565.7(c)(1)(B) unless there is a statutory or policy requirement that this web-based training be completed. Behavioral support services must be provided by a behavior therapist; therefore, it is unclear to the commenter what HHSC's web-based training would offer that a trained professional did not already gain from educational and hands-on experience.

Response: HHSC declines to make changes in response to these comments because proposed §565.7(c)(1)(B) is, in part, a federal Medicaid requirement as outlined in the CMS HCS waiver application.

Comment: A commenter stated that §565.9(b)(5), under Program Provider Requirements, may be the appropriate place to add a requirement that providers ensure the licenses of their licensed contractors are in good standing.

Response: HHSC declines to make changes in response to this comment. Proposed §565.7(c)(2)(A), under Staff Member and Service Provider Requirements, is specific to licensed contractors and requires a program provider to develop and implement policy and procedures to ensure a service provider continues to be licensed and in good standing with its licensing board during the provision of services to an individual.

Comment: Regarding §565.9(c), a commenter stated that licensure checks of service providers should be made upon employment (and upon expiration of the license) and that automobile insurance should only be required for the period of the policy, because it is unclear what an "ongoing verification process" would be other than requiring staff to inform providers if their insurance is canceled or changes, or if their license is revoked.

Response: HHSC agrees with the commenter and revised proposed §565.9(c) to require a program provider to develop and implement policy and procedures to ensure only staff members and service providers with a valid driver's license and insurance transport individuals.

Comment: A commenter recommended adding "unless" to the beginning of §565.9(e)(2).

Response: Changing the language of proposed §565.9(e)(2) in response to the requestor's suggestion would change the meaning of the rule so that the rule would no longer align with HHSC's intent. Therefore, HHSC declines to make the commenter's proposed change. However, proposed §565.9(e)(2) was revised to clarify the intent of the subsection.

Comment: A commenter recommended the following revision to §565.9(g)(2)(B) related to financial impropriety toward an individual: "unauthorized purchase of goods not requested for the individual and cannot be used by the individual or not intended for the individual's use." The commenter stated that it is subjective for regulators to independently determine what an individual can or cannot use and that this regulation does not require consideration of the intent of the purchase.

Response: HHSC agrees with the commenter and revised proposed §565.9(g)(2)(B) to clarify that financial impropriety toward an individual includes "any purchase of goods that are not requested for the individual, cannot be used by the individual, or are not intended for the individual's use."

Comment: A commenter stated, "After an approved individual plan of care (IPC) has been signed and shared with the provider, and unless the person has chosen a group home and the provider does not have a group home vacancy, or the provider cannot ensure the health and safety of the individual. Providers may offer vacancies in other contract areas to satisfy this requirement."

Response: In accordance with the federal CMS HCS waiver application, the program provider must accommodate the individual's preference regarding where to live. HHSC declines to make changes in response to this comment because the requested revision is inconsistent with the federal HCS waiver application and would require additional analysis and a change to the federal HCS waiver application.

Comment: In reference to §565.11(a)(4), a commenter recommended changing the wording to, "facilitate modifications to a service plan if requested by the individual and maintain service plans to be responsive to individual's personal goals, conditions, abilities, and needs as identified by the service planning team and identified in the person directed plan."

Response: HHSC declines to make changes in response to these comments. To ensure an individual has access to services in a timely manner, the service provider is responsible for maintaining a system of delivering services that is responsive to the individual's personal goals, condition, abilities, and needs as identified by the service planning team, in accordance with proposed §565.11(a)(4).

Comment: A commenter stated that §565.11(a)(6) requires providers go through the process of obtaining a behavior plan to restrict an individual's rights. The commentor would like to have a separate process in rule for restricting an individual's right, when applicable, since not all restrictions of rights are linked to an undesirable behavior, and creating a behavior plan involves multiple entities, not just the program provider.

Response: An individual receiving HCS services has all the same rights and responsibilities exercised by people without disabilities unless otherwise justified. The federal CMS HCS waiver application requires that providers justify any restriction of rights and that those restrictions only occur with adequate discussion and documentation through the person-centered planning process. Therefore, HHSC declines to make changes in response to this without further dialogue with stakeholders, advocates, and providers.

Comment: A commenter expressed concerns regarding §565.11(a)(10), which requires providers to initiate an individual plan of care (IPC) renewal although they have no control over local intellectual and developmental disability authority availability, HHSC timeliness, or the families of the individuals. The commenter stated that providers already go without payment if the renewal deadline is missed. The commenter argued that if failure to meet this renewal requirement could result in an administrative penalty, the requirement should not also be a part of HHSC Billing Requirement nor a contract requirement under Medicaid and Children's Health Insurance Program.

Response: The IPC document provides information related to the care and needs of the individual. This document must be up to date to ensure the health and safety of the individual. Medicaid program rules located in 26 TAC §263.302 provide a 60-day window for renewals, which gives program providers sufficient time to initiate IPC renewals. Therefore, HHSC declines to makes changes in response to these comments because an accurate IPC is essential to the health and safety of the individual.

Comment: A commenter stated that since §565.11(a)(12) is already in the billing requirements, it should not also be in rule.

Response: HHSC declines to make changes in response to this comment because proposed §565.11(a)(12) is a different requirement than that of the HCS billing requirement. Billing requirements provide the documentation that is necessary for reimbursement. The proposed rules describe what the program provider must do to document the individual's progress or lack of progress towards goals and objectives.

Comment: In reference to §565.11(a)(14), a commenter stated that, "The state has specified that individuals can no longer receive paid work as part of a habilitation service so it is unclear whether individuals will still have access to sub-minimum wage, however, HHSC should not dictate the options available to individuals that are not covered by Medicaid."

Response: Proposed §565.11(a)(14) ensures that individuals who produce marketable goods and services in habilitation training programs are paid at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work. Compensation is based on requirements contained in the Fair Labor Standards Act. This rule applies to HCS program providers and what they must do for individuals who receive HCS waiver program services. Therefore, HHSC declines to make changes in response to this comment.

Comment: A commenter stated that the language in §565.11(a)(20) is already outlined in licensure requirements for Individualized Skills and Socialization as well as the program service rules. Additionally, the commenter asserted that additional efforts are needed to set reasonable expectations for service providers who are contracting services with licensed providers that are expected to meet this standard under their license (and separately regulated by HHSC).

Response: HHSC made changes to this rule language and removed the program description language from the rule. The revised language requires the HCS program provider to ensure delivery of contracted services in accordance with the individual's person-directed plan (PDP), IPC, implementation plan, and Appendix C of the CMS federal HCS waiver application, but it does not require the HCS program provider to abide by the licensing requirements in the Individualized Skills and Socialization licensure rules.

Comment: The commenter recommended adding "including an electronic copy" to §565.11(a)(42)(B).

Response: HHSC agrees with the commenter and revised proposed §565.11(a)(42)(B) to include service by an electronic copy.

Comment: A commenter stated that the language about CFC ERS in §565.19 is not in the HCS Billing Requirements or as a service with a rate in the HCS rate tables.

Response: HHSC declines to make changes in response to this comment. Proposed §565.19 requires the program provider to deliver CFC ERS services as required by the federal CMS HCS waiver application. The rule ensures that an individual receives the appropriate services as indicated in the HCS waiver application and for the health and safety of the individual.

Comment: In reference to §565.19(1), a commenter asked why CFC ERS would not be approved for a person who is receiving host home companion care.

Response: HHSC declines to make changes in response to this comment because this comment is outside the scope of this rule project.

Comment: A commenter suggested adding "program providers should have policies and procedures to ensure:" to §565.23(b).

Response: HHSC declines to make changes in response to this comment because a program provider is directly responsible for the condition of an HCS residence rather than creating policies and procedures for selecting and maintaining HCS residences.

Comment: A commenter asked HHSC to explain how a neighborhood or community in §565.23(b)(1) can ensure the health, safety, and well-being of the individual.

Response: HHSC declines to make changes in response to this comment because the requestor was asking HHSC to provide examples of how a neighborhood could ensure the health, safety, and well-being of the individual rather than make changes to the rule language. A program provider may consider whether the neighborhood or community is adjacent to resources the individual may require, such as community engagement opportunities or medical resources.

Comment: A commenter recommended adding "including documentation of identified broken equipment and order date" to §565.23(b)(3). The commenter added that equipment breaks and may not be available for a time if the break is unexpected.

Response: HHSC agrees with this comment and revised proposed §565.23(b)(3) to clarify how a service provider will identify adaptive equipment that is not functional.

Comment: A commenter suggested adding "provided by the provider" to §565.23(b)(5). The commenter stated that host homes may have furnishings not in good repair, but that this should not necessarily be held against them, particularly if they are the parents of the individual and have limited income and resources.

Response: HHSC agrees with the commenter and revised proposed §565.23(b)(5) to include a requirement that furnishings must be safe and fit for use.

Comment: A commenter stated that the rules in §565.23(b)(7) should allow for a process for identifying and treating possible infestations and should not be penalized if the provider is treating a potential infestation and keeping individuals safe.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(b)(7) only requires the home to be free of infestations including bugs, rodents, and other pests. The rule enables the provider to determine how to identify and treat infestations within the home.

Commenter: To ensure consistency with the Home and Community-based Services settings requirements located in 26 TAC §263.502, a commenter requested that the following be added to the end of §565.23(b)(14)(C): "Unless the LAR is the individual's host home provider."

Response: Under §263.502(b)(4), a lock is installed on the individual's bedroom door at no cost to the individual. The requirement for a lock to be installed on an individual's bedroom door at no cost to the individual or the individual's LAR, as proposed in rule §565.23(b)(14)(C), is consistent with §263.502 of this title. Therefore, HHSC declines to make changes in response to this comment.

Comment: In §565.23(b)(14)(C), a commenter asked to clarify in LTCR rule whether a family can purchase a different lock if they do not like the lock installed by the provider as long as it meets requirements.

Response: HHSC declines to make changes in response to this comment because proposed §565.23(b)(13) only requires that the program provider ensure a lock is on the individual's bedroom door.

Comment: A commenter asked HHSC to clarify the settings and frequency of fire drills in §565.23(e)(1).

Response: HHSC agrees with the commenter and made changes to §565.23 for clarity.

Comment: A commenter suggested that §565.23(e)(4) and (5) be consolidated into one statement, "Providers should retrain or revise emergency plans based upon assessment of staff and individual performance of the fire drill."