Header:
TEXAS ADMINISTRATIVE CODE
TITLE 40. SOCIAL SERVICES AND ASSISTANCE
PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 85. IMPLEMENTATION OF THE OLDER AMERICANS ACT
SUBCHAPTER C. AAA ADMINISTRATIVE REQUIREMENTS
Date:
08/31/2009
Document:
40 TAC § 85.201 (2011)
§ 85.201. AAA Administrative Responsibilities
(a) Purpose. This section:
(1) establishes the responsibilities of a AAA in developing and maintaining an organized and efficient system of administration that demonstrates accountability and compliance with state and federal law and with all terms and conditions of the contract it enters into with DADS; and
(2) applies to a service under the Older Americans Act provided to a program participant that is funded, in whole or in part, by DADS.
(b) Structure of a AAA.
(1) A AAA must:
(A) reflect its organizational structure through job descriptions, staffing plans, area plans, and organizational charts that demonstrate its ability to effectively administer Older Americans Act programs and other programs funded by DADS;
(B) identify a person as a director or manager of the AAA;
(C) if a director or manager position becomes vacant, ensure that a qualified staff person is assigned to perform the duties of the director or manager until the position is filled;
(D) budget all positions based on the projected percentage of time to be spent performing the duties of an identified service;
(E) maintain documentation to support the actual time spent performing the duties of an identified service; and
(F) comply with the Service Definitions for Area Agencies on Aging available at www.dads.state.tx.us for all services funded by DADS.
(2) In accordance with the Older Americans Act, § 306(a)(6)(D), a AAA must establish an advisory council that:
(A) continually advises the AAA on all matters relating to the development and administration of and operations conducted under the area plan; and
(B) consists of persons who are 60 years of age or older (including minority persons and persons residing in rural areas) who are program participants or who are eligible to participate in programs under the Older Americans Act, family caregivers of such individuals, representatives of persons 60 years of age or older, service providers, representatives of the business community, local elected officials, providers of veterans' health care, if appropriate, and the general public.
(3) A AAA must ensure that its board members, employees, advisory committee members, and volunteers are not subject to a conflict of interest, as described in subparagraph (A) of this paragraph, in fact or perception, and notify DADS in accordance with DADS Program Instruction AAA - PI 500 Conflicts of Interest, when potential conflicts of interest occur.
(A) A conflict of interest includes: (i) having a substantial financial interest, directly or indirectly, in the profits of any entity from which services or goods are contracted or otherwise procured by the AAA; and (ii) deriving a personal profit, directly or indirectly, from any entity that would conflict in any manner or degree with the performance of responsibilities of the board member, employee, advisory committee member, or volunteer.
(B) A AAA must comply with § 85.401(i) of this chapter (relating to Long-Term Care Ombudsman Program).
(C) A AAA must include a requirement in a request for proposal (RFP) for services for older persons and requests for vendor enrollment that any potential conflicts of interest be identified in the RFP or vendor enrollment response. The notification of potential conflicts of interest must include: (i) the person and the nature for which a potential conflict of interest exists; and (ii) the relationship to any current or former board member, current or former aging advisory committee member, or current or former employee.
(c) Compliance with laws, rules, regulations, and other requirements. A AAA must comply with applicable federal and state laws, rules, and regulations, standards, and instructions, including:
(1) the Older Americans Act of 1965;
(2) state laws regarding the financial operation of a AAA;
(3) 45 Code of Federal Regulations (CFR) § 1321.67;
(4) 45 CFR § 92.25;
(5) Uniform Grant Management Standards;
(6) Office of Management and Budget Circulars; and
(7) DADS Program Instructions.
(d) Accountability.
(1) A AAA must:
(A) maintain financial and programmatic systems capable of producing expenditure reports, cost center analyses, budgets, and state and federal reports;
(B) develop and implement written policies and procedures to back up automated information systems and continually update virus protection software to prevent the loss or corruption of program and financial data;
(C) meet programmatic and fiscal performance targets as outlined in the approved budget, as amended, within a five percent variance; and
(D) submit fiscal and programmatic reports required by DADS in a timely, complete, and accurate manner.
(2) A request for an extension to submit fiscal and programmatic reports must be submitted in writing to the AAA Help Desk at DADS on or before the date and time the reports are due.
(3) DADS may grant up to two requests for an extension per report per federal fiscal year. A AAA may be granted no more than a total of eight extensions per federal fiscal year. The length of an extension is negotiated, as much as possible, but DADS makes the final decision regarding extensions.
(4) A AAA must comply with the terms of all applicable interagency agreements, including those agreements legislatively mandated or to which DADS and the AAA are parties.
(e) Review of subcontractors.
(1) A AAA must review a subcontractor's programs and fiscal activities on a regular and systematic basis. Reviews must be conducted through a desk audit or by on-site review. A AAA must conduct a risk assessment annually to determine the necessity of an on-site review if it conducts an on-site review less than annually for all subcontractors.
(2) A AAA must conduct an annual customer satisfaction survey of program participants utilizing the process furnished by DADS.
(3) A AAA must comply with the requirements specified in § 81.13 of this title (relating to Compliance with Contractor Responsibilities, Rewards and Sanctions) when imposing sanctions against a subcontractor for noncompliance with a contract.
(4) A AAA may develop requirements for a subcontractor in addition to those listed in paragraphs (1) - (3) of this subsection.
(f) Targeting. A AAA must ensure, in providing a service described in Subchapter D of this chapter (relating to Older Americans Act Services), that priority is given to persons:
(1) described in the Older Americans Act, § 306(a)(4)(B)(i); and
(2) who have an unmet need for such a service.
(g) Means testing. A AAA must not use means testing for purposes of determining a person's eligibility to receive services, in accordance with the Older Americans Act, § 315(b)(3).
(h) Confidentiality.
(1) A AAA must comply with all applicable state and federal laws, rules, and regulations related to the confidentiality of program participant information, including 45 CFR § 1321.51 and § 85.401(k) of this chapter.
(2) A AAA must:
(A) keep the records of a program participant in a secure, locked facility when not in use by authorized personnel; and
(B) limit access to program participant records maintained in computer information systems through acceptable computer security practices, including password protection.
(i) Satisfaction with services. A AAA must, at least annually, give a program participant an opportunity to express his or her level of satisfaction with the services provided.
(j) Grievances. A AAA must:
(1) implement grievance procedures in accordance with § 81.19 of this title (relating to Grievance Procedures for Participants in Older Americans Act Programs); and
(2) inform a program participant of the grievance procedures.
(k) Service participation. A AAA must not require a program participant to be a member in a specific private organization, group, association, or fraternal organization as a condition of receiving services, which includes permitting services to be provided in an organization's facility to which admission is limited to members of the organization.
(l) Contributions. A AAA:
(1) must provide a program participant with an opportunity to contribute toward the cost of the services the program participant receives;
(2) must not require a program participant to contribute toward the cost of services the program participant receives;
(3) may provide a program participant with a contribution schedule that suggests a contribution amount based on the income ranges of the program participant population, but may not determine a program participant's income using a means test;
(4) must protect the privacy of a program participant with respect to the program participant's contribution;
(5) must establish appropriate procedures to safeguard and account for all contributions made; and
(6) must use all program participant contributions to support or expand services for which the program participant contributed, in accordance with applicable state and federal laws, rules, and regulations.
(m) Facilities. A AAA must ensure that facilities in which services are provided are in compliance with applicable local building codes and ordinances and applicable state and federal laws, rules, and regulations.
(n) Tobacco policy. A AAA must prohibit the use of tobacco during the hours of operation of and in areas designated for Older Americans Act programs.
(o) Insurance. A AAA must maintain insurance that protects the health and safety of its employees and of program participants and complies with all applicable state and federal laws, rules, and regulations.
(p) Records. A AAA:
(1) must develop, maintain, and retain records in accordance with the Uniform Grant Management Standards, Subpart C;
(2) must establish written procedures to adequately ensure proper development, maintenance and retention of all financial records, supporting documents, statistical records and all other records relating to its performance;
(3) must maintain all records for a minimum of five years following the end of the federal fiscal year to which the record pertains and until any pending litigation, claim or audit findings, issuance or proposed disallowed costs or other disputes have been resolved;
(4) must maintain all records at a designated central location regardless of whether the AAA has one or multiple locations; and
(5) must give DADS, the Comptroller General of the United States, and the State of Texas, through any authorized representatives, access to its records, including:
(A) financial records such as contracts, general ledgers, invoices, accounts payable, and accounts receivable;
(B) program participant records unless specifically prohibited by law;
(C) other documents related to DADS funded programs; and
(D) any other records not directly related to the AAA if the purpose of such access is to review charges to any indirect costs pool.
(q) Service provider compliance. A AAA must ensure that a service provider complies with requirements described in subsections (f) - (p) of this section.
(r) Contingency plan. A AAA must have a written plan ensuring continuity of services to a program participant in the event a service provider is unable to provide a service.
(s) Designation of focal points. A AAA must comply with the Older Americans Act, § 306(a)(3)(A) and (B) regarding designation of focal points.
(t) Visibility.
(1) A AAA must use the logo designed by DADS (illustrated in paragraph (2) of this subsection) to ensure a uniform, statewide symbol for AAAs.
(2) A AAA must use the logo on all printed material it develops.
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(u) AAA contact information.
(1) A AAA must publicize its contact information through a variety of media such as telephone directories, resource directories, the Internet, and other outreach tools for persons who reside in any geographical area that lies in whole or in part in the planning and service area served by the AAA.
(2) Contact information must begin with the words "area agency on aging" and must include the host agency, as applicable. A AAA must ensure that a telephone call to the AAA is answered "area agency on aging."
(v) Phrase for printed material. A AAA must cite DADS as the primary funding source using the phrase "Funded by the Department of Aging and Disability Services" or "Funded in part by Department of Aging and Disability Services" on all printed material.
(w) Identification of a AAA facility. A AAA must prominently display a sign outside its primary place of business that:
(1) adheres to local ordinances concerning signs; and
(2) conforms to the requirements in subsection (t) of this section.
(x) Emergency management.
(1) When a disaster occurs, a AAA must notify DADS of its need to provide for emergency management activities, provide information to DADS regarding the impact of the disaster on the older population in its service area, provide emergency management services in accordance with current Administration on Aging disaster relief guidelines, and collect pertinent data necessary to submit reimbursement requests for disaster services.
(2) A AAA must consult with the appropriate agencies that have an interest or role in meeting the needs of persons 60 years of age or older to plan for the occurrence and aftermath of natural, civil defense, or man-made disasters. To accomplish this, a AAA must:
(A) develop an emergency disaster plan in accordance with DADS requirements;
(B) require by contract or vendor agreement that a service provider develop plans for emergency management; and
(C) provide technical assistance as necessary to service provider staff persons regarding emergency management activities.
(y) Reporting abuse, neglect, or exploitation.
(1) A AAA must instruct its staff persons and representatives to report allegations of abuse, neglect, or exploitation of a program participant to the Department of Family and Protective Services (DFPS) in accordance with Texas Human Resources Code, Chapter 48. A report must be made by calling 1-800-252-5400 or by following the instructions available at www.txabusehotline.org.
(2) The AAA must take appropriate corrective action if:
(A) a staff person does not report an allegation of abuse, neglect, or exploitation of a program participant in accordance with Texas Human Resources Code, Chapter 48; or
(B) DFPS confirms abuse, neglect, or exploitation of a program participant by a staff person of the AAA.
(z) Emergency services. A AAA must instruct all of its staff persons to call 911 or another local emergency hotline for fire-fighting, police, medical, or other emergency services, as appropriate, in the event of an emergency involving a program participant.
(aa) Reporting waste, abuse, or fraud.
(1) A AAA must instruct its staff persons and representatives to report allegations of waste, abuse, or fraud, as defined in 1 TAC § 371.1601 (relating to Definitions), regarding a service described in subsection (a)(2) of this section. A report must be made to:
(A) the Texas Health and Human Services Commission (HHSC), Office of the Inspector General, in accordance with the HHSC instructions available at www.hhs.state.tx.us; and
(B) DADS by calling 1-800-436-6184.
(2) The Office of the Inspector General investigates reports of waste, abuse, or fraud in accordance with 1 TAC, Chapter 371, Subchapter G.
(bb) Ethical conduct.
(1) A AAA must ensure that its staff persons and representatives conduct themselves in an ethical manner.
(2) A AAA staff person may not:
(A) engage in inappropriate treatment of a program participant or person seeking services;
(B) withhold or suppress a complaint or report against the AAA or DADS;
(C) retain or distribute program participant information for personal gain;
(D) obtain a certification by fraud or deceit; or
(E) knowingly participate in the preparation of false or misleading program participant information.
(3) A AAA must instruct all staff persons and representatives to report allegations of unethical conduct, as described in paragraph (2) of this subsection, to DADS' AAA Section Manager.
(cc) Service provider compliance. A AAA must ensure that a service provider complies with the requirements described in subsections (y), (z), (aa)(1)(A), and (bb) of this section.
(dd) Complaints. A AAA must ensure that a service provider:
(1) on or before initiation of a service described in Subchapter D of this chapter, informs a program participant, in writing, of the procedure by which the program participant may file a complaint regarding such service;
(2) obtains and maintains documentation of receipt of the complaint procedure by the program participant;
(3) date stamps receipt of a written complaint;
(4) documents receipt of an oral complaint, with the date of receipt and a narrative of the allegations;
(5) investigates each complaint and responds, in writing, to the program participant regarding the results of the investigation in a timely manner; and
(6) maintains a written log of complaints filed by program participants that is accessible to the AAA and contains the following information:
(A) the date of the service provider's receipt of the complaint;
(B) the name of the person who filed the complaint;
(C) a description of the nature of the complaint;
(D) the name of the staff person who conducted the investigation of the complaint;
(E) the names of persons who were contacted during the investigation of the complaint;
(F) the outcome of the complaint; and
(G) the date final action was taken by the service provider in response to th
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