Header:
TEXAS ADMINISTRATIVE CODE
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 9. INTELLECTUAL DISABILITY SERVICES--MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
SUBCHAPTER D. HOME AND COMMUNITY
Date:
03/07/2014
Document:
§ 9.174. Certification Principles: Service Delivery
(a) The program provider must:
(1) serve an eligible applicant who has selected the program provider unless the program provider's enrollment has reached its service capacity as identified in CARE;
(2) serve an eligible applicant without regard to age, sex, race, or level of disability;
(3) provide or obtain as needed and without delay all HCS Program services;
(4) ensure that each applicant or individual, or LAR on behalf of the applicant or individual, has chosen where the individual or applicant is to reside from available options consistent with the individual's needs;
(5) encourage involvement of the LAR or family members and friends in all aspects of the individual's life and pro-vide as much assistance and support as is possible and constructive;
(6) request from and encourage the parent or LAR of an individual under 22 years of age receiving supervised liv-ing or residential support to provide the program provider with the following information:
(A) the parent's or LAR's: (i) name; (ii) address; (iii) telephone number; (iv) driver license number and state of is-suance or personal identification card number issued by the Department of Public Safety; and (v) place of employment and the employer's address and telephone number;
(B) name, address, and telephone number of a relative of the individual or other person whom DADS or the pro-gram provider may contact in an emergency situation, a statement indicating the relationship between that person and the individual, and at the parent's or LAR's option: (i) that person's driver license number and state of issuance or personal identification card number issued by the Department of Public Safety; and (ii) the name, address, and tele-phone number of that person's employer; and
(C) a signed acknowledgement of responsibility stating that the parent or LAR agrees to: (i) notify the program provider of any changes to the contact information submitted; and (ii) make reasonable efforts to participate in the individual's life and in planning activities for the individual;
(7) inform the parent or LAR that if the information described in paragraph (6) of this subsection is not provided or is not accurate and the service coordinator and DADS are unable to locate the parent or LAR as described in § 9.190(e)(35) of this subchapter (relating to Local Authority Requirements for Providing Service Coordination in the HCS Program) and § 9.189 of this subchapter (relating to Referral to DFPS), DADS refers the case to DFPS;
(8) for an individual under 22 years of age receiving supervised living or residential support:
(A) make reasonable accommodations to promote the participation of the LAR in all planning and decision-making regarding the individual's care, including participating in meetings conducted by the program provider;
(B) take the following actions to assist a local authority in conducting permanency planning: (i) cooperate with the local authority responsible for conducting permanency planning by:
(I) allowing access to an individual's records or providing other information in a timely manner as requested by the local authority or HHSC;
(II) participating in meetings to review the individual's permanency plan; and
(III) identifying, in coordination with the individual's local authority, activities, supports, and services that can be provided by the family, LAR, program provider, or the local authority to prepare the individual for an alternative living arrangement; (ii) encourage regular contact between the individual and the LAR and, if desired by the individual and LAR, between the individual and advocates and friends in the community to continue supportive and nurturing rela-tionships; (iii) keep a copy of the individual's current permanency plan in the individual's record; and (iv) refrain from providing the LAR with inaccurate or misleading information regarding the risks of moving the individual to another institutional setting or to a community setting;
(C) if an emergency situation occurs, attempt to notify the parent or LAR and service coordinator as soon as the emergency situation allows and request a response from the parent or LAR; and
(D) if the program provider determines it is unable to locate the parent or LAR, notify the service coordinator of such determination;
(9) allow the individual's family members and friends access to an individual without arbitrary restrictions unless exceptional conditions are justified by the individual's service planning team and documented in the PDP;
(10) notify the service coordinator if changes in an individual's age, skills, attitudes, likes, dislikes, or conditions necessitate a change in residential, educational, or work settings;
(11) ensure that the individual who is living outside the family home is living in a residence that maximizes op-portunities for interaction with community members to the greatest extent possible;
(12) ensure that the IPC for each individual is renewed, revised, and authorized by DADS in accordance with § 9.166 of this subchapter (relating to Renewal and Revision of an IPC) and § 9.160 of this subchapter (relating to DADS' Review of a Proposed IPC);
(13) ensure that HCS Program services identified in the individual's implementation plan are provided in an indi-vidualized manner and are based on the results of assessments of the individual's and the family's strengths, the indi-vidual's personal goals and the family's goals for the individual, and the individual's needs rather than which services are available;
(14) ensure that each individual's progress or lack of progress toward desired outcomes is documented in ob-servable, measurable, or outcome-oriented terms;
(15) ensure that each individual has opportunities to develop relationships with peers with and without disabilities and receives support if the individual chooses to develop such relationships;
(16) ensure that individuals who perform work for the program provider are paid on the basis of their production or performance and at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work, and that compensation is based on local, state, and federal regulations, including Department of Labor regulations, as applicable;
(17) ensure 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, which include:
(A) accurate recordings of individual production or performance;
(B) valid and current time studies or monitoring as appropriate; and
(C) prevailing wage rates;
(18) ensure that individuals provide no training, supervision, or care to other individuals unless they are qualified and compensated in accordance with local, state, and federal regulations, including Department of Labor regulations;
(19) unless contraindications are documented with justification by the service planning team, ensure that an indi-vidual's routine provides opportunities for leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual's choice and the routines of other members of the community;
(20) unless contraindications are documented with justification by the service planning team, ensure that an indi-vidual of retirement age has opportunities to participate in day activities appropriate to individuals of the same age and consistent with the individual's or LAR's choice;
(21) unless contraindications are documented with justification by the service planning team, ensure that each in-dividual is offered choices and opportunities for accessing and participating in community activities and experiences available to peers without disabilities;
(22) assist the individual to meet as many of the individual's needs as possible by using generic community services and resources in the same way and during the same hours as these generic services are used by the community at large;
(23) for an individual receiving foster/companion care, residential support, or supervised living:
(A) ensure that the individual lives in a home that is a typical residence within the community;
(B) ensure that the residence, neighborhood, and community meet the needs and choices of the individual and provide an environment that ensures the health, safety, comfort, and welfare of the individual;
(C) unless contraindications are documented with justification by the service planning team, assist the individual to live near family and friends and needed or desired community resources consistent with the individual's choice, if possible; and
(D) ensure that the individual or LAR is involved in planning the individual's residential relocation, except in the case of an emergency;
(24) ensure that adaptive aids are provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and include the full range of lifts, mobility aids, control switches/pneumatic switches and devices, environmental control units, medically necessary supplies, and communication aids and repair and maintenance of the aids as determined by the individual's needs;
(25) together with an individual's service coordinator, ensure the coordination and compatibility of HCS Program services with non-HCS Program services;
(26) ensure that an individual has a current implementation plan;
(27) ensure that the following specialized therapy services are provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us:
(A) audiology services;
(B) speech/language pathology services;
(C) occupational therapy services;
(D) physical therapy services;
(E) dietary services;
(F) social work services; and
(G) behavioral support;
(28) ensure that day habilitation is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:
(A) assisting individuals in acquiring, retaining, and improving self-help, socialization, and adaptive skills necessary to reside successfully in the community;
(B) providing individuals with age-appropriate activities that enhance self-esteem and maximize functional level;
(C) complementing any specialized therapies listed in the IPC;
(D) reinforcing skills or lessons taught in school, therapy, or other settings;
(E) training and support activities that promote the individual's integration and participation in the community;
(F) providing assistance for the individual who cannot manage personal care needs during day habilitation activi-ties; and
(G) providing transportation during day habilitation activities as necessary for the individual's participation in day habilitation activities;
(29) ensure that dental treatment is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:
(A) emergency dental treatment;
(B) preventive dental treatment;
(C) therapeutic dental treatment; and
(D) orthodontic dental treatment, excluding cosmetic orthodontia;
(30) ensure that minor home modifications are provided in accordance with the individual's PDP, IPC, implemen-tation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, including:
(A) purchase and repair of wheelchair ramps;
(B) modifications to bathroom facilities;
(C) modifications to kitchen facilities; and
(D) specialized accessibility and safety adaptations or additions, including repair and maintenance;
(31) ensure that nursing is provided in accordance with the individual's PDP; IPC; implementation plan; Texas Oc-cupations Code, Chapter 301 (Nursing Practice Act); 22 TAC Chapter 217 (relating to Licensure, Peer Assistance, and Practice); 22 TAC Chapter 224 (relating to Delegation of Nursing Tasks by Registered Professional Nurses to Unlicensed Personnel for Clients with Acute Conditions or in Acute Care Environments); 22 TAC Chapter 225 (relating to RN Dele-gation to Unlicensed Personnel and Tasks Not Requiring Delegation in Independent Living Environments for Clients with Stable and Predictable Conditions); and Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and consists of performing health care activities and monitoring the individual's health conditions, including:
(A) administering medication;
(B) monitoring the individual's use of medications;
(C) monitoring health risks, data, and information, including ensuring that an unlicensed service provider is per-forming only those nursing tasks identified from a nursing assessment;
(D) assisting the individual to secure emergency medical services;
(E) making referrals for appropriate medical services;
(F) performing health care procedures ordered or prescribed by a physician or medical practitioner and required by standards of professional practice or law to be performed by a licensed nurse; and
(G) delegating nursing tasks to an unlicensed service provider and supervising the performance of those tasks in accordance with state law and rules;
(H) teaching an unlicensed service provider about the specific health needs of an individual;
(I) performing an assessment of an individual's health condition;
(J) an RN doing the following: (i) performing a nursing assessment for each individual:
(I) before an unlicensed service provider performs a nursing task for the individual unless a physician has dele-gated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician; and
(II) as determined necessary by an RN, including if the individual's health needs change; (ii) documenting infor-mation from performance of a nursing assessment; (iii) if an individual is receiving a service through CDS, providing a copy of the documentation described in clause (ii) of this subparagraph to the individual's service coordinator; (iv) developing the nursing service portion of an individual's implementation plan, which includes developing a plan and schedule for monitoring and supervising delegated nursing tasks; and (v) making and documenting decisions related to the delegation of a nursing task to an unlicensed service provider;
(K) in accordance with Texas Human Resources Code, Chapter 161: (i) allowing an unlicensed service provider to provide administration of medication to an individual without the delegation or oversight of an RN if:
(I) an RN has performed a nursing assessment and, based on the results of the assessment, determined that the individual's health permits the administration of medication by an unlicensed service provider;
(II) the medication is:
(-a-) an oral medication;
(-b-) a topical medication; or
(-c-) a metered dose inhaler;
(III) the medication is administered to the individual for a predictable or stable condition; and
(IV) the unlicensed service provider has been:
(-a-) trained by an RN or an LVN under the direction of an RN regarding the proper administration of medication; or
(-b-) determined to be competent by an RN or an LVN under the direction of an RN regarding proper administra-tion of medication, including through a demonstration of proper technique by the unlicensed service provider; and (ii) ensuring that an RN or an LVN under the supervision of an RN reviews the administration of medication to an individual by an unlicensed service provider at least annually and after any significant change in the individual's condition.
(32) ensure that supported home living is available to an individual living in his or her own home or the home of his or her natural or adoptive family members, or to an individual receiving foster care services from DFPS;
(33) ensure that supported home living is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and includes the following elements:
(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hy-giene);
(B) assistance with meal planning and preparation;
(C) securing and providing transportation;
(D) assistance with housekeeping;
(E) assistance with ambulation and mobility;
(F) reinforcement of specialized therapy activities;
(G) assistance with medications and the performance of tasks delegated by an RN;
(H) supervision of individuals' safety and security;
(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and
(J) habilitation, exclusive of day habilitation;
(34) ensure that HCS foster/companion care is provided:
(A) by a foster/companion care provider who lives in the residence in which no more than three individuals or other persons receiving similar services are living at any one time; and
(B) in a residence in which the program provider does not hold a property interest;
(35) ensure that foster/companion care is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at
www.dads.state.tx.us, and includes the following elements:
(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hy-giene);
(B) assistance with meal planning and preparation;
(C) securing and providing transportation;
(D) assistance with housekeeping;
(E) assistance with ambulation and mobility;
(F) reinforcement of specialized therapy activities;
(G) assistance with medications and the performance of tasks delegated by an RN;
(H) supervision of individuals' safety and security;
(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and
(J) habilitation, exclusive of day habilitation;
(36) ensure that supervised living is provided:
(A) in a four-person residence that is approved in accordance with § 9.188 of this subchapter (relating to DADS Approval of Residences) or a three-person residence;
(B) by a service provider who provides services and supports as needed by the individuals residing in the resi-dence and is present in the residence and able to respond to the needs of the individuals during normal sleeping hours; and
(C) only with approval by the DADS commissioner or designee for the initial six months and one six-month exten-sion and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an indi-vidual under 22 years of age;
(37) ensure that supervised living is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, and includes the following elements:
(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hy-giene);
(B) assistance with meal planning and preparation;
(C) securing and providing transportation;
(D) assistance with housekeeping;
(E) assistance with ambulation and mobility;
(F) reinforcement of specialized therapy activities;
(G) assistance with medications and the performance of tasks delegated by an RN;
(H) supervision of individuals' safety and security;
(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and
(J) habilitation, exclusive of day habilitation;
(38) ensure that residential support is provided:
(A) in a four-person residence that is approved in accordance with § 9.188 of this subchapter or a three-person residence;
(B) by a service provider who is present in the residence and awake whenever an individual is present in the resi-dence;
(C) by service providers assigned on a daily shift schedule that includes at least one complete change of service providers each day; and
(D) only with approval by the DADS commissioner or designee for the initial six months and one six-month exten-sion and only with approval by the HHSC executive commissioner after such 12-month period, if provided to an indi-vidual under 22 years of age;
(39) ensure that residential support is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us, and includes the following elements:
(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hy-giene);
(B) assistance with meal planning and preparation;
(C) securing and providing transportation;
(D) assistance with housekeeping;
(E) assistance with ambulation and mobility;
(F) reinforcement of specialized therapy activities;
(G) assistance with medications and the performance of tasks delegated by an RN;
(H) supervision of individuals' safety and security;
(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and
(J) habilitation, exclusive of day habilitation;
(40) if making a recommendation to the service planning team that the individual receive residential support, document the reasons for the recommendation, which may include:
(A) the individual's medical condition;
(B) a behavior displayed by the individual that poses a danger to the individual or to others; or
(C) the individual's need for assistance with activities of daily living during normal sleeping hours;
(41) ensure that respite is available on a 24-hour increment or any part of that increment to individuals living in their family homes;
(42) ensure that respite is provided in accordance with the individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us and includes:
(A) training in self-help and independent living skills;
(B) provision of room and board when respite is provided in a setting other than the individual's normal residence;
(C) support for individuals who are eligible for respite and who are in need of emergency or planned short-term care;
(D) assistance with ongoing provision of needed waiver services, excluding supported home living; and
(E) assistance with securing and providing transportation;
(43) provide respite in the residence of an individual or in other locations, including residences in which fos-ter/companion care, supervised living, or residential support is provided or in a respite facility, that meet HCS Program requirements and afford an environment that ensures the health, safety, comfort, and welfare of the individual.
(A) If respite is provided in the residence of another individual, the program provider must obtain permission from that individual or LAR and ensure that the respite visit will cause no threat to the health, safety, or welfare of that in-dividual.
(B) If respite is provided in the residence of another individual, the program provider must ensure that: (i) no more than three individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which foster/companion care is provided; (ii) no more than three individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which only supervised living is provided; and (iii) no more than four individuals receiving HCS Program services and persons receiving similar services for which the program provider is reimbursed are served in a residence in which residential support is provided.
(C) If respite is provided in a respite facility, the program provider must: (i) ensure that the facility is not a resi-dence; (ii) ensure that no more than six individuals receive services in the facility at any one time; and (iii) obtain writ-ten approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances before initiating services in the facility if more than three individuals receive services in the facility at any one time.
(D) The program provider must not provide respite in an institution;
(44) ensure that supported employment (employment in an integrated work setting--generally a setting where no more than one employee or 3% of the work force members have disabilities) is provided in accordance with the indi-vidual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found at www.dads.state.tx.us that is not the individual's residence and includes:
(A) ongoing individualized support services needed to sustain paid work by the individual, including supervision and training;
(B) compensation by the employer to the individual in accordance with the Fair Labor Standards Act; and
(C) provision of services not available or funded through the state education agency or a state rehabilitation agency;
(45) inform the service coordinator of changes related to an individual's residential setting that do not require a change to the individual's IPC;
(46) maintain a system of delivering HCS Program services that is continuously responsive to changes in the indi-vidual's personal goals, condition, abilities, and needs as identified by the service planning team;
(47) ensure that appropriate staff members, service providers, and the service coordinator are informed of a cir-cumstance or event that occurs in an individual's life or a change to an individual's condition that may affect the provi-sion of services to the individual;
(48) maintain current information in CARE about the individual and the individual's LAR, including:
(A) the individual's full name, address, location code, and phone number; and
(B) the LAR's full name, address, and phone number;
(49) maintain a single record related to HCS Program services provided to an individual for an IPC year that in-cludes:
(A) the IPC;
(B) the PDP;
(C) the implementation plan;
(D) a behavior support plan, if one has been developed;
(E) documentation that describes the individual's progress or lack of progress on the implementation plan;
(F) documentation that describes any changes to an individual's personal goals, condition, abilities, or needs;
(G) the ID/RC Assessment;
(H) documentation supporting the recommended LON, including the ICAP booklet, assessments and interventions by qualified professionals, and time sheets of service providers;
(I) results and recommendations from individualized assessments;
(J) documentation concerning any use of restraint as described in § 9.179(c)(2) and (3) of this subchapter (relating to Certification Principles: Restraint);
(K) documentation related to the individual's suspension from HCS Program services; and
(L) for an individual under 22 years of age, a copy of the permanency plan;
(50) upon request by the service coordinator:
(A) permit the service coordinator access to the record that is required by paragraph (49) of this subsection; and
(B) provide the service coordinator a legible copy of a document in the record at no charge to the service coordi-nator;
(51) provide a copy of the following documents to the service coordinator:
(A) an individual's IPC; and
(B) an individual's ID/RC Assessment;
(52) notify the service coordinator if the program provider has reason to believe that an individual is no longer eli-gible for HCS Program services or an individual or LAR has requested termination of all HCS Program services; and
(53) if a physician delegates a medical act to an unlicensed service provider in accordance with Texas Occupations Code, Chapter 157, and the program provider has concerns about the health or safety of the individual in performance of the medical act, communicate the concern to the delegating physician and take additional steps as necessary to ensure the health and safety of the individual.
(b) A program provider may suspend HCS Program services because an individual is temporarily admitted to a set-ting described in § 9.155(d) of this subchapter (relating to Eligibility Criteria and Suspension of HCS Program Services).
(1) If a program provider suspends HCS Program services, the program provider must:
(A) notify DADS of the suspension by entering data in CARE in accordance with DADS instructions; and
(B) notify the service coordinator of the suspension within one business day after services are suspended.
(2) A program provider may not suspend HCS Program services for more than 270 calendar days without approval from DADS as described in § 9.190(e)(20)(C) of this subchapter.
(c) A program provider may determine that an individual does not require a nursing assessment if:
(1) nursing services are not on the individual's IPC and the program provider has determined that no nursing task will be performed by an unlicensed service provider as documented on DADS form "Nursing Task Screening Tool"; or
(2) a nursing task will be performed by an unlicensed service provider and a physician has delegated the task as a medical act under Texas Occupations Code, Chapter 157, as documented by the physician.
(d) If an individual or LAR refuses a nursing assessment described in subsection (a)(31)(J)(i) of this section, the program provider must not:
(1) provide nursing services to the individual; or
(2) provide foster/companion care, residential support, supervised living, supported home living, respite, sup-ported employment, or day habilitation to the individual unless:
(A) an unlicensed service provider does not perform nursing tasks in the provision of the service; and
(B) the program provider determines that it can ensure the individual's health, safety, and welfare in the provision of the service.
(e) If an individual or LAR refuses a nursing assessment and the program provider determines that the program provider cannot ensure the individual's health, safety, and welfare in the provision of a service as described in subsec-tion (c) of this section, the program provider must:
(1) immediately notify the individual or LAR and the individual's service coordinator, in writing, of the determina-tion; and
(2) include in the notification required by paragraph (1) of this subsection the reasons for the determination and the services affected by the determination.
(f) If notified by the service coordinator that the individual or LAR refuses the nursing assessment after the discus-sion with the service coordinator as described in § 9.190(e)(21)(C) of this subchapter, the program provider must im-mediately send the written notification described in subsection (e) of this section to DADS.
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