Understanding the Texas Administrative Code & the HCS Program

by Mary Jenkins  - September 27, 2023

Today we’re exploring the Texas Administrative Code (TAC) and how it connects to the Texas Home and Community-based Services (HCS) Program. The TAC is like a guidebook, showing the way for programs that help a lot of people in Texas. In this article, we’re going to look at the parts of the TAC that are important for the HCS Program. Whether you know a lot about this or are just curious, we’ll help you understand how these rules make a difference in helping people in our communities. Let’s dive in and learn how the TAC and the HCS Program work together to support folks in Texas!

Disclaimer: Please note that the content provided in this article is for informational purposes only and does not constitute legal advice. The Texas Administrative Code (TAC) is subject to frequent changes, and while we strive to keep our content current, we cannot guarantee its completeness or accuracy at any given time. We encourage our readers to conduct their own due diligence and, if necessary, consult with professional counsel to ensure they are acting in accordance with the most up-to-date regulations. Use this article as a general guide only, not as an ultimate source of legal information.

Learning the Rules

Understanding the Texas Administrative Code & the HCS Program 1 May 2024

In this section, we’ll be giving you a high-level overview of the relevant rules from the Texas Administrative Code that shape the HCS Program. We won’t get lost in the tiny details; instead, we’ll outline the key requirements of each rule, making it clear and straightforward. Think of it like a highlight reel of the most important parts you need to know! By the end, you’ll have a solid understanding of what each rule means and why it’s essential for the HCS Program in Texas.

Rule §565.1 – Emergency Response System

Overview:

This rule outlines the requirements for program provider designees in enrolling and communicating through an emergency communication system. The designees are mandated to enroll in this system according to the instructions provided by the Health and Human Services Commission (HHSC). Additionally, they must respond to any information requests received through this system in the format established by HHSC.

Key Requirements

  • Program provider designees are required to enroll in an emergency communication system as per the instructions from HHSC.
  • Designees must respond to requests for information received through the emergency communication system in the format established by HHSC.

Rule §565.2 – Purpose

Overview:

Rule §565.2 is centered around promoting the health, safety, and welfare of individuals in the Home and Community-based Services (HCS) program. It establishes the minimum health and safety expectations and responsibilities of an HCS program provider. This chapter is applicable to program providers and serves as a guideline for the Texas Health and Human Services Commission to establish regulatory compliance by a program provider.

Key Requirements

  • The rule is designed to promote the health, safety, and welfare of individuals in the HCS program by setting minimum health and safety expectations and responsibilities for HCS program providers.
  • The chapter applies specifically to program providers.
  • The Texas Health and Human Services Commission uses the rules in this chapter to determine regulatory compliance by program providers.

Rule §565.3 – Definitions

Overview:

Rule §565.3 provides an extensive list of definitions for various terms used within this chapter. These definitions are crucial for understanding the context and application of the rules in this chapter. The terms defined range from “Abuse” and “Applicant” to more specific terms such as “Microboard” and “Natural supports.”

Key Requirements

  • The rule defines a wide array of terms used in this chapter, providing clarity and context for their application.
  • Terms such as “Microboard,” “Natural supports,” “Neglect,” “Vendor hold,” and “Violation” are explicitly defined.
  • Understanding these definitions is essential for interpreting and complying with the rules set forth in this chapter.

Rule §565.5 – Rights of Individuals

Overview:

Rule §565.5 lays down the rights of individuals within the Home and Community-based Services (HCS) Program and Community First Choice (CFC). It outlines the responsibilities of program providers in ensuring individuals’ rights and lists specific rights related to managing financial affairs, accessing public accommodations, participation in decisions, and receiving information about one’s health, among others.

Key Requirements

  • Program providers cannot prohibit an individual or their legally authorized representative (LAR) from exercising the rights and responsibilities exercised by people without disabilities.
  • LARs or family members cannot be prohibited from encouraging the individual to exercise the same rights and responsibilities exercised by people without disabilities.
  • The program provider must develop and implement policies ensuring the individual is informed of his or her rights and can exercise them without interference, coercion, discrimination, or retaliation.
  • Individuals have the right to manage financial affairs, access public accommodations, be informed of participation requirements, and receive information about available HCS Program and CFC services.
  • Individuals have the right to be informed about their health, mental condition, and related progress.
  • The rule outlines the right to choose among various available service providers and to receive visitors without prior notification.
  • Individuals have the right to be free from serving as a source of labor when residing with persons other than family members and to communicate, associate, and meet privately with any person of their choice.
  • The rule lists additional rights related to leisure time activities, vacation periods, religious observances, holidays, and days off, consistent with the individual’s choice and community routines.

Rule §565.7 – Staff Member and Service Provider Requirements

Overview:

Rule §565.7 sets forth the requirements for staff members and service providers in the HCS Program and CFC services. The program provider must employ or contract with a person who oversees the provision of these services, and this person must meet specific experience criteria. The rule also outlines the qualifications, training, and documentation necessary for staff members or service providers of various services, ensuring they are capable of meeting the needs of each individual they provide services to.

Key Requirements

  • The program provider must employ or contract with a person overseeing the provision of HCS Program services and CFC services, who must have at least three years of relevant experience.
  • Staff members or service providers of individualized skills and socialization, supported home living, host home/companion care, supervised living, residential support, respite, supportive employment, and employment assistance must meet the criteria for employment in the HCS Billing Requirements and Appendix C of the HCS Program waiver application.
  • They must be qualified to deliver required services from the person-directed plan, individual plan of care, and implementation plan to meet the needs of each individual.
  • Specific training, documentation, and age requirements are mandated for service providers of CFC PAS/HAB.
  • The program provider must ensure that service providers attend training by HHSC to meet any additional qualifications requested by the individual or LAR.
  • Individuals or LARs have the right to train a CFC PAS/HAB service provider in the specific assistance needed by the individual and have the service provider perform CFC PAS/HAB in a manner that aligns with the individual’s personal, cultural, or religious preferences.

Rule §565.9 – Program Provider Requirements

Overview:

Rule §565.9 outlines various requirements that program providers must adhere to, ensuring the availability of trained and qualified service providers for delivering required services based on individual needs and characteristics. The rule details compliance with background checks, restrictions on employing or contracting individuals with certain criminal histories, and mandates on searching various registries to determine eligibility for employment. Additionally, the rule establishes standards for contracting with entities providing transition assistance services and policies preventing conflicts of interest, financial impropriety, abuse, neglect, exploitation, and damage to an individual’s possessions. It also addresses compliance with requirements about advance directives.

Key Requirements

  • Program providers must ensure the continuous availability of trained and qualified service providers to deliver required services based on individual needs.
  • Compliance with background checks and restrictions on employing or contracting individuals with certain offenses or criminal histories is mandatory.
  • Regular searches of various registries, including the Employee Misconduct Registry, Nurse Aide Registry, and the List of Excluded Individuals and Entities, are required to determine staff eligibility.
  • Standards are set for contracting with entities providing transition assistance services and ensuring their compliance with relevant regulations.
  • Implementation of policies preventing conflicts of interest, financial impropriety, abuse, neglect, exploitation, and damage to individual’s possessions is mandatory.
  • Program providers must adhere to requirements about advance directives as per the United States Code.

Rule §565.11 – Service Delivery

Overview:

Rule §565.11 specifies the requirements program providers must fulfill regarding service delivery in the HCS Program and CFC services. The rule encompasses a wide range of provisions, including ensuring the availability of services as per individual needs, compliance with individual plans, and standards for various types of services such as supported home living and host home/companion care. It also outlines the responsibilities of program providers during the transition of individuals, post-move monitoring visits, and the suspension of services under certain conditions.

Key Requirements

  • Program providers must ensure the availability and provision of services according to the individual’s needs, plans, and implementation plan.
  • Standards are specified for supported home living, host home/companion care, and other services, ensuring they are provided in accordance with individual plans and regulatory requirements.
  • Program providers have responsibilities during the transition of individuals, including being physically present for post-move monitoring visits, assisting in the implementation of the transition plan, and participating in the service planning team.
  • Providers must notify the service planning team of any event or condition that may put the individual at risk of admission or readmission to a nursing facility within one calendar day.
  • In case of temporary admission of an individual to a specific setting, program providers may suspend services but must notify HHSC and the service coordinator, adhering to specified timelines and conditions.
  • Suspension of services for more than 270 calendar days requires approval from HHSC.

Rule §565.13 – Nursing

Overview:

Rule §565.13 establishes the standards and requirements for the provision of nursing services by program providers. It mandates that nursing services must be delivered in accordance with individuals’ plans and various state and administrative codes, including the Texas Nursing Practice Act and relevant Texas Administrative Code chapters. The rule outlines specific nursing tasks such as administering medication, monitoring health conditions, making referrals, performing healthcare procedures, and delegating tasks. It also stipulates the processes for conducting nursing assessments, notifying individuals, and addressing refusals of assessments. The rule underscores the importance of immediate notifications and adherence to specified procedures in various scenarios.

Key Requirements

  • Nursing services must be provided in accordance with the individual’s person-directed plan (PDP), individual plan of care (IPC), implementation plan, Texas Occupations Code Chapter 301 (Nursing Practice Act), relevant Texas Administrative Code chapters, and Appendix C of the HCS Program waiver application approved by CMS.
  • Nursing tasks include administering medication, monitoring health conditions, assisting in securing emergency medical services, making referrals, performing healthcare procedures, delegating tasks to unlicensed service providers, and teaching specific health needs.
  • Program providers must perform nursing assessments to determine the need for nursing services and must follow specified notification procedures for informing individuals or LARs and service coordinators of assessment determinations.
  • If an individual or LAR refuses a nursing assessment, the program provider must immediately send written notification to HHSC, outlining the reasons for the determination and the services affected by it.

Rule §565.15 – Individuals under the Age of 22

Overview:

Rule §565.15 focuses on the requirements and responsibilities of program providers concerning individuals under the age of 22 receiving services. The program provider must request and encourage the parent or legally authorized representative (LAR) to provide essential information such as contact details, employment information, and emergency contacts. This rule underscores the importance of maintaining accurate and up-to-date information, notifying of any changes, and the responsibilities of parents or LARs in participating in the individual’s life and planning activities. It outlines the steps taken when the provided information is inaccurate or unavailable and the referral process to the Department of Family and Protective Services (DFPS). The rule also stresses the importance of cooperation with local intellectual and developmental disability authorities (LIDDA) in conducting permanency planning, maintaining supportive relationships, and the protocols to follow in emergency situations.

Key Requirements

  • Program providers must request and encourage the parent or LAR of an individual under 22 to provide essential information, including contact details, employment information, and emergency contacts.
  • Parents or LARs must sign an acknowledgement of responsibility, agreeing to notify of any changes to the contact information and to make reasonable efforts to participate in the individual’s life and planning activities.
  • In cases where the information is not provided or is inaccurate, and the service coordinator and HHSC are unable to locate the parent or LAR, HHSC refers the case to DFPS.
  • Program providers have responsibilities to cooperate with LIDDA in conducting permanency planning, participating in meetings, identifying supportive activities, and maintaining accurate records.
  • Regular contact between the individual and the LAR, advocates, and friends in the community is encouraged to continue supportive and nurturing relationships.
  • In emergency situations, program providers must attempt to notify the parent or LAR and service coordinator as soon as possible and request a response.
  • If the program provider is unable to locate the parent or LAR, they must notify the service coordinator of such determination.

Rule §565.17 – Pre-enrollment Minor Home Modification

Overview:

Rule §565.17 details the responsibilities of program providers regarding pre-enrollment minor home modifications. The providers must conduct assessments, provide specific modifications within a monetary limit, and complete them as per the set schedule before an applicant’s discharge from a facility. The rule delineates the steps for reporting delays, documenting pending modifications, and notifying service coordinators and the applicant or their legally authorized representative (LAR) about the completion of modifications. The regulation ensures adherence to the HCS Program Billing Requirements and the HCS Program waiver application approved by the Centers for Medicare and Medicaid Services (CMS).

Key Requirements

  • Program providers must conduct a pre-enrollment minor home modifications assessment in accordance with the HCS Program Billing Requirements and provide specific modifications to the applicant based on the authorized form received from the service coordinator.
  • The modifications must be completed at least two days before the applicant’s discharge from the nursing facility, intermediate care facility, or general residential operation, unless there are uncontrollable delays.
  • In case of delays, the provider must document the description of pending modifications, reasons for delay, anticipated completion date, ongoing efforts to complete the modifications, and provide this information to the applicant or LAR and the service coordinator.
  • The program provider must notify the service coordinator and the applicant or LAR within one business day after the completion of the pre-enrollment minor home modifications.
  • All processes must align with Appendix C of the HCS Program waiver application approved by CMS.

Rule §565.19 – Community First Choice (CFC) Emergency Response Systems (ERS) Services

Overview:

Rule §565.19 outlines the provision of Community First Choice (CFC) Emergency Response Systems (ERS) Services. The rule stipulates that CFC ERS services must be provided in compliance with this section and according to the individual’s person-directed plan, individual plan of care (IPC), and implementation plan. The rule details the criteria for individuals eligible to receive CFC ERS, the installation and testing of equipment, training for individuals on equipment use, monthly system checks, and procedures for equipment failures and replacements. Additionally, the rule specifies documentation requirements for equipment issues and corrective actions.

Key Requirements

  • CFC ERS must be provided only to an individual who meets specific criteria, including not receiving certain types of care, living alone or without regular caregivers, and requiring extensive routine supervision.
  • The program provider must ensure the installation of CFC ERS equipment within 14 business days after the authorization of the IPC that includes CFC ERS, following the manufacturer’s installation instructions.
  • At the time of installation, the individual must be trained on the use of the equipment, participate in an initial test, and be informed about monthly system checks and notification procedures for changes in contact details or responders.
  • The equipment must have an alternate power source for power failures, and any equipment failure or low battery signal must be addressed promptly with replacements or repairs.
  • Program providers must document equipment issues, repairs, replacements, and any instances of non-compliance with good cause in the individual’s record.

Rule §565.21 – Transitional Assistance Service (TAS)

Overview:

Rule §565.21 elucidates the requirements and procedures program providers must follow in providing Transitional Assistance Service (TAS). The provider must offer TAS based on the authorized form received from the service coordinator and ensure it aligns with the individual’s person-directed plan and the HCS Program waiver application approved by CMS. The specific TAS identified on the form must be delivered within the stipulated monetary amount and timeframe, particularly at least two days before the applicant’s discharge from the facility. In cases of delays, program providers must document the pending TAS, reasons for delay, anticipated delivery date, ongoing efforts to deliver TAS, and communicate this information to the applicant or legally authorized representative (LAR) and the service coordinator. Notifications of TAS delivery completion are mandatory within one business day.

Key Requirements

  • Program providers must offer TAS to applicants in accordance with the individual’s person-directed plan and the HCS Program waiver application approved by CMS, based on the authorized form received from the service coordinator.
  • The specific TAS identified on the form should be purchased and delivered within the monetary amount indicated on the form, and completed at least two days before the applicant’s discharge from the facility.
  • If there are uncontrollable delays in TAS delivery, providers must document the description of pending TAS, reason for delay, anticipated completion date, ongoing efforts to deliver TAS, and provide this information to the applicant or LAR and the service coordinator at least two days before discharge.
  • Program providers are required to notify the service coordinator and the applicant or LAR within one business day after the TAS has been delivered.

Rule §565.23 – Residential Requirements

Overview:

Rule §565.23 sets forth comprehensive residential requirements for three-person and four-person residences and host home/companion care settings. The program provider must ensure that the residence and its surroundings meet the individual’s needs and guarantee their health, safety, and welfare. Specific stipulations are laid out regarding home modifications, functionality of adaptive equipment, home furnishings, sanitation, pest control, condition of the building structure, availability and temperature of hot water, and functionality of major home appliances. The rule also mandates that individuals’ bedroom doors have operable locks and specifies the conditions under which keys can be held by others. The rule details further requirements regarding smoke detectors, fire extinguishers, emergency evacuation plans, and the prohibition of hazardous materials. Additionally, the rule outlines specific inspection and certification processes for four-person residences, including compliance with local building codes and ordinances, and state and federal laws, rules, and regulations.

Key Requirements

  • The program provider must ensure the residence, neighborhood, and community meet the individual’s needs and guarantee their health, safety, and welfare.
  • The home must be modified to meet the individual’s specific adaptive needs, and all adaptive equipment must be functional.
  • The home must be clean, sanitary, free of infestations, and in good structural condition. Bathrooms must be functional and safe, with hot water available at sinks and in bathing facilities.
  • The temperature of hot water should not exceed 120 degrees Fahrenheit, unless a competency-based skills assessment shows that individuals can independently regulate the temperature.
  • Major home appliances, including kitchen appliances and heating and cooling systems, must be in working order.
  • Individuals’ bedroom doors must have operable locks, with specific conditions outlined for who may have keys.
  • The residence must be equipped with smoke detectors, fire extinguishers, and have an emergency evacuation plan. Hazardous materials are prohibited.
  • Specific inspection and certification processes are outlined for four-person residences, and continuous compliance with all applicable local building codes and ordinances and state and federal laws, rules, and regulations is required.

Rule §565.25 – Programmatic Requirements

Overview:

Rule §565.25 sets forth detailed programmatic requirements for residences providing supervised living, residential support, and host home/companion care. The program provider is obligated to conduct annual on-site inspections for supervised living or residential support residences and quarterly inspections for host home/companion care residences to ensure the safety, accessibility, and suitability of the environment based on the individual’s needs and abilities. The rule mandates compliance with federal, state, and local regulations and the completion of any identified actions from the inspection before an individual moves in or within a specified timeframe. Additionally, the provider must establish an ongoing consumer/advocate advisory committee, ensure confidentiality of personal information, involve the individual or legally authorized representative (LAR) in planning residential relocations, and adhere to various other programmatic standards aimed at improving service delivery and maintaining the well-being of the individuals served.

Key Requirements

  • Before providing services and annually thereafter, program providers must conduct on-site inspections for residences with supervised living or residential support to ensure a safe, accessible, and suitable environment that complies with applicable regulations.
  • For residences where host home/companion care is provided, similar inspections are required quarterly.
  • Identified actions from the inspections must be completed before an individual moves in or within 30 days, with documentation of justification and a plan for completion for any delayed actions.
  • Program providers are required to establish an ongoing consumer/advocate advisory committee composed of individuals and advocates.
  • The committee must review and evaluate various aspects of the program, including service delivery, use of restraints, and program process improvements.
  • The provider must implement program process improvements identified through evaluations and reviews and address recommendations made by the advisory committee.
  • Strict confidentiality of all personal information concerning an individual must be maintained, and its use or disclosure is limited to purposes directly connected with the administration of the program.
  • The individual or LAR must be included in planning the individual’s residential relocation, except in emergency cases.

Rule §565.27 – Finances and Rent

Overview:

Rule §565.27 focuses on the financial aspects concerning individuals living in three-person or four-person residences, detailing the program provider’s responsibilities regarding charges against an individual’s personal funds. The rule outlines the specific costs included in the monthly amount for room and board that the program provider must collect. These include rent or ownership expenses, costs associated with shared appliances, electronics, furniture, security and fire alarm system monitoring, property maintenance, utilities, television, and internet service, and food and cooking supplies. The program provider must ensure the individual or their legally authorized representative (LAR) agrees in writing to all charges before they are assessed. Charges for items or services reimbursed through the HCS Program or Community First Choice (CFC) are not to be assessed against the individual’s personal funds. Additionally, the rule specifies the conditions under which a program provider may manage an individual’s personal funds and the requirements for maintaining detailed records of deposits and expenditures.

Key Requirements

  • The program provider must collect a monthly amount for room and board from individuals living in three-person or four-person residences, with specific costs detailed in the rule.
  • The individual or LAR must agree in writing to all charges assessed by the program provider against the individual’s personal funds before the charges are assessed.
  • Charges for items or services reimbursed through the HCS Program or CFC must not be assessed against the individual’s personal funds.
  • Upon request, the program provider must manage the individual’s personal funds without charge, ensuring no commingling with the provider’s funds, and maintaining detailed records of all deposits and expenditures.
  • If necessary, the program provider can accrue an expense for essential items and services and must enter a written payment plan with the individual or LAR for reimbursement of the funds.

Rule §565.29 – Behavior Support Plan

Overview:

Rule §565.29 delineates the requirements for implementing a Behavior Support Plan when an individual’s behavior necessitates the application of behavior management techniques, especially those involving intrusive interventions or the restriction of individual’s rights. The program provider must assess the individual’s needs, current behavior level, and severity, involving a service provider of behavioral support services in developing a comprehensive plan. The plan should include appropriate techniques based on the behavior’s severity and consider the effects on the individual’s well-being. The rule mandates the collection and monitoring of behavioral data, adjustments in techniques based on this data, and plan revisions if necessary. Implementation of the plan requires written consent from the individual or legally authorized representative (LAR), acknowledgment of the right to discontinue the plan, and notification to the individual’s service coordinator. Regular reviews and evaluations of the plan’s effectiveness are also stipulated.

Key Requirements

  • The program provider must conduct an assessment of the individual’s needs, behavior level, and severity when it is determined that behavior management techniques are necessary.
  • A service provider of behavioral support services must develop a behavior support plan with input from the individual, LAR, program provider, and actively involved persons, considering the effects of the techniques on the individual’s well-being.
  • The plan must detail the collection and monitoring of behavioral data, allow for adjustments in techniques based on this data, and permit revisions if the desired behavior is not achieved or the techniques are ineffective.
  • Before implementing the plan, written consent from the individual or LAR is required, along with providing them the right to discontinue the plan at any time and notifying the individual’s service coordinator of the plan.
  • The program provider must review the effectiveness of the techniques and the necessity of continuing the behavior support plan at least annually, notifying the service coordinator if the plan needs to continue.

Rule §565.31 – Requirements Related to Abuse, Neglect, and Exploitation

Overview:

Rule §565.31 outlines the stringent requirements related to abuse, neglect, and exploitation for program providers. It mandates that program providers ensure individuals and their legally authorized representatives (LARs) are informed about how to report allegations of abuse, neglect, or exploitation and are educated about protection from such instances. Additionally, the rule stipulates the responsibilities of staff members, service providers, and volunteers in being trained, acknowledging, and reporting any knowledge or suspicion of abuse, neglect, or exploitation immediately to the Department of Family and Protective Services (DFPS). The rule details the reporting procedures, the acknowledgment of understanding, the frequency of training, and the subsequent actions that must be taken by the program provider following an investigation, including notifications, appeals, and coordination of services.

Key Requirements

  • Program providers must inform individuals and LARs about reporting allegations of abuse, neglect, or exploitation to DFPS and HHSC Complaint and Incident Intake (CII), and educate them on protection against such instances.
  • Staff members, service providers, and volunteers must be trained and knowledgeable about acts, signs, and symptoms of abuse, neglect, and exploitation, and methods to prevent them.
  • These individuals must report any knowledge or suspicion of abuse, neglect, or exploitation immediately to DFPS, acknowledging that they understand the importance of individuals living free of such instances.
  • The program provider is required to conduct activities ensuring understanding and training before assuming job duties and annually thereafter.
  • The program provider must review reports of abuse, neglect, or exploitation, take appropriate action to ensure the individual’s safety, notify relevant parties of investigation findings and actions taken, and complete the necessary documentation.
  • The program provider is obligated to inform the individual or LAR about the appeal process, provide copies of the investigative report upon request, and ensure coordination of services with relevant providers, including information regarding abuse, neglect, and exploitation.

Rule §565.33 – Restraints

Overview:

Rule §565.33 elucidates the requirements and limitations associated with the use of restraints by program providers. The rule necessitates a thorough assessment of the individual’s physical, medical, and emotional conditions, and communication ability within 30 days of receiving services and annually thereafter. This includes considerations such as cognitive functioning, history of abuse, weight, height, and age. The rule details the circumstances under which restraints may be used, such as in behavioral emergencies, as part of a behavior support plan, during medical or dental procedures, to prevent self-injury, and as a protective device. The rule strictly prohibits the use of restraints as punishment, for convenience, or as a substitute for a behavior support plan. The rule outlines the specific conditions for the release of an individual from restraints and mandates prompt notification and documentation procedures following the use of restraints.

Key Requirements

  • Program providers must assess and document various conditions and factors related to the individual within 30 days of receiving services and annually thereafter, with involvement from a physician, RN, or LVN.
  • The use of restraints is allowed only under specific circumstances, such as behavioral emergencies, as part of a behavior support plan, during medical procedures, for preventing self-injury, and as a protective device.
  • Restraints must not be used as a form of punishment, for the convenience of the provider, or as a substitute for a behavior support plan.
  • The release of an individual from restraints must occur as soon as the individual no longer poses a risk, experiences a medical emergency, or reaches the floor in certain restraint holds.
  • Following the use of restraints in a behavioral emergency, program providers must notify an RN or LVN, obtain necessary medical services for the individual, notify the individual’s LAR or a person actively involved, and inform the individual’s service coordinator promptly.
  • All notifications and communications regarding the use of restraints must adhere to the Health Insurance Portability and Accountability Act (HIPAA) regulations if applicable.

Rule §565.35 – Enclosed Beds

Overview:

Rule §565.35 addresses the conditions under which enclosed beds can be used in residences by program providers. The rule stipulates that the use of an enclosed bed is permissible if it is acquired and meets the set criteria before June 19, 2023, but prohibited if obtained on or after this date. The program provider is mandated to visually inspect the bed, ensure annual assessments are conducted by a qualified professional, and retain necessary documentation. The rule details the requirements for assessments, documentation, policies, procedures, routine checks, reviews, and updating orders for the enclosed bed. To prevent misuse or overuse, the program provider must develop a usage plan, ensure staff members understand this plan, and make it readily available. The rule establishes that all enclosed beds will be prohibited after June 19, 2028.

Key Requirements

  • Enclosed beds can be used if acquired and compliant with requirements before June 19, 2023, but are prohibited if obtained on or after this date.
  • The program provider must visually inspect the enclosed bed, ensuring it meets the defined criteria and conduct annual assessments to determine the individual’s medical need for the bed.
  • Necessary documentation, including a letter of medical necessity and a receipt from a durable medical equipment company, must be obtained and retained.
  • The program provider is required to develop and implement policies and procedures for routine checks, quarterly reviews by a registered nurse or professional therapist, and updating orders for the enclosed bed.
  • A usage plan detailing when the enclosed bed will be used must be developed and implemented, staff members must read and document understanding of this plan, and the plan should be readily available to staff.
  • All enclosed beds are strictly prohibited after June 19, 2028.

Rule §565.37 – Protective Devices

Overview:

Rule §565.37 defines the parameters for the utilization of protective devices by program providers, except as provided in §565.35 relating to Enclosed Beds. The rule strictly prohibits the use of protective devices to modify or control behavior, for disciplinary purposes, staff convenience, or as a substitute for less restrictive, effective methods. The rule mandates that when a need for a protective device is identified, a qualified professional, such as a physician, occupational therapist, physical therapist, or registered nurse (RN), must conduct an initial and annual assessment to determine the individual’s medical need, the effectiveness of less restrictive methods, the type and use of the protective device, documentation, and monitoring requirements. Before utilizing a protective device, the program provider must obtain and retain documentation, including an order, assessments, and consent, notify the individual or legally authorized representative (LAR) of the right to withdraw consent, and develop a policy and procedure for training each service provider in the proper use of the protective device as per the initial assessment.

Key Requirements

  • Protective devices must not be used to modify behavior, for disciplinary purposes, staff convenience, or as a substitute for a less restrictive method.
  • When a need for a protective device is identified, a qualified professional must conduct an initial assessment to determine the individual’s medical need, the type of protective device to be used, the circumstances under which it may be used, how to use it, documentation requirements, and monitoring requirements.
  • The qualified professional must conduct annual assessments and assessments after any significant change to reevaluate the need and conditions for the use of the protective device.
  • The program provider must obtain and retain in the individual’s record an order for the use of the protective device identified in the initial assessment, complete initial and subsequent assessments, and consent of the individual or LAR to use the protective device.
  • The individual or LAR must be provided oral and written notification of the right to withdraw consent for the use of the protective device at any time.
  • The program provider must develop a policy and procedure to ensure that each service provider who will use the protective device has been trained in the proper use of the protective device, in accordance with the initial assessment.

Rule §565.39 – Prohibitions

Overview:

Rule §565.39 specifies prohibitions imposed on program providers concerning the use of seclusion and enclosed beds. The rule explicitly states that a program provider is not allowed to use seclusion under any circumstances. Additionally, the rule forbids the utilization of enclosed beds for behavioral management purposes.

Key Requirements

  • Program providers are strictly prohibited from using seclusion.
  • The use of enclosed beds for the purpose of behavioral management is not allowed.

Rule §565.41 – HHSC Surveys of a Program Provider

Overview:

Rule §565.41 outlines the surveys that the Texas Health and Human Services Commission (HHSC) conducts on program providers to ensure continuous compliance with certification standards. The rule details various types of unannounced surveys, such as initial certification surveys, recertification surveys, follow-up surveys, residential surveys, and intermittent surveys. HHSC conducts an initial certification survey within 120 calendar days after approving the enrollment or transfer of the first individual to receive HCS Program services from the program provider. The certification period granted post-survey is no more than 365 calendar days. The rule elaborates on the actions HHSC may take during a survey, the conduct of exit conferences, the findings of critical violations, and additional unannounced visits to assess the safety and health standards of each residence. It also specifies the possible evaluations and actions HHSC may undertake based on survey findings and the health and safety of an individual.

Key Requirements

  • Program providers must continuously comply with the applicable certification standards.
  • HHSC conducts various types of unannounced surveys, including initial certification, recertification, follow-up, residential, and intermittent surveys.
  • An initial certification survey is conducted within 120 calendar days after the enrollment or transfer of the first individual to receive services.
  • The certification period post any survey is for no more than 365 calendar days.
  • HHSC may review services provided, assess compliance with certification standards, and evaluate the implementation of approved plans for amelioration during surveys.
  • Exit conferences are conducted at the end of a survey, where preliminary findings and possible critical violations are discussed.
  • HHSC conducts, at least annually, unannounced visits to each residence providing residential support or supervised living to assess compliance with safety and health standards.
  • Based on the findings of the visits and surveys, HHSC may require corrective action, submission of safety plans, evidence of corrective action, or conduct additional surveys.
  • HHSC acts based on survey findings as described in Rule §565.49 regarding Program Provider Compliance and Corrective Action.
  • HHSC retains the right to evaluate the health and safety of an individual at any time and to conduct unannounced residential surveys to assess the safety of the environment.

Rule §565.43 – HHSC Approval of Four Person Residences

Overview:

Rule §565.43 delineates the requirements for obtaining Texas Health and Human Services Commission (HHSC) approval for providing residential support in a four-person residence. A program provider must secure written approval from HHSC before initiating residential support in such a residence. To obtain approval, the program provider must submit specific documentation to HHSC, including the address and county of the residence, certification of intent to provide residential support, compliance with residential requirements as per §565.23(i)(1)(A), and certification that the residence to be approved does not house any person not permitted in a “four-person residence” as defined in §565.3. HHSC will notify the program provider in writing of its approval or disapproval within 14 calendar days after receiving the required documentation.

Key Requirements

  • A program provider must obtain written approval from HHSC before providing residential support in a four-person residence.
  • To secure approval, the program provider must submit to HHSC:
    • The address and county of the residence.
    • Certification of the program provider’s intent to provide residential support to one or more individuals living in the residence.
    • One of the certifications required by §565.23(i)(1)(A) relating to Residential Requirements.
    • Written certification that the residence to be approved is not housing any person other than those permitted in a “four-person residence” as defined in §565.3.
  • HHSC will notify the program provider in writing of its approval or disapproval within 14 calendar days after receiving the specified documentation.

Rule §565.45 – Administrative Penalties

Overview:

Rule §565.45 details the conditions under which the Texas Health and Human Services Commission (HHSC) may impose and collect administrative penalties against a program provider. Such penalties can be levied for violations of certification principles applicable to a program provider and for specific actions such as willfully interfering with HHSC’s work or enforcement of the subchapter, making false statements, falsifying documentation, and failing to pay an administrative penalty within the stipulated time. The rule outlines the factors HHSC considers in determining the amount of the penalty, including the seriousness of the violation, the program provider’s history of violations, prior knowledge of the violation, efforts to mitigate or correct the violation, the penalty amount necessary to deter future violations, and any other matter that justice may require. The rule also specifies the conditions under which an administrative penalty accrues, the circumstances under which HHSC allows a program provider an opportunity to correct a violation before imposing a penalty, and the restrictions on imposing multiple penalties for the same violation.

Key Requirements

  • HHSC may impose and collect administrative penalties against a program provider for violations of certification principles and for specific prohibited actions.
  • The range of the administrative penalty is based on the scope and severity of the violation and whether it is an initial or repeated violation.
  • HHSC considers various factors in determining the amount of the penalty, including the seriousness of the violation, the program provider’s history of violations, efforts to correct the violation, and the penalty amount necessary to deter future violations.
  • Administrative penalties accrue each day until corrective action is completed, a vendor hold is imposed, or payments are withheld due to contract termination.
  • HHSC allows a program provider an opportunity to correct non-critical violations before imposing an administrative penalty.
  • If corrective action is completed on the same day a penalty begins accruing, HHSC imposes a penalty for one day.
  • HHSC does not impose multiple penalties, such as a vendor hold or withholding contract payments, for the same violation, action, or failure to act.
  • The amount of the penalty for violations described in subsection (a)(2) is $1000, imposed no more than once per survey, with no opportunity for the program provider to correct the action before the penalty is imposed.

Rule §565.47 – Amelioration

Overview:

Rule §565.47 outlines the provisions for amelioration, which offers a program provider an alternative to paying an administrative penalty imposed under §565.45. The Texas Health and Human Services Commission (HHSC) may give a program provider the opportunity for amelioration, which involves the provider proposing and implementing changes to improve services or the quality of care for individuals. However, there are restrictions on the number of times and the circumstances under which a program provider can be offered amelioration. The rule details the process of choosing amelioration, submitting a plan, gaining approval from HHSC, implementing the plan, and the consequences of not implementing an approved plan. It also specifies the conditions under which HHSC may require the program provider to pay the administrative penalty.

Key Requirements

  • HHSC may offer the opportunity for amelioration as an alternative to requiring payment for an administrative penalty imposed against a program provider.
  • A program provider cannot be given the opportunity for amelioration more than three times in a two-year period and not more than once for the same or similar violation.
  • Critical violations that are immediate threats and certain actions or failures to act described in §565.45 are not eligible for amelioration.
  • If offered amelioration, the program provider must notify HHSC of their choice to accept it within the required period described in the notice; otherwise, they forfeit the opportunity.
  • The program provider must submit a written plan for amelioration to HHSC within 45 calendar days after the date of the notice, detailing proposed changes to improve services or quality of care.
  • HHSC will review and notify the program provider of its decision to approve or deny the plan for amelioration within 45 calendar days after receiving the plan.
  • If HHSC approves the plan, the program provider must implement it, and HHSC may require payment of the difference between the cost of the changes and the administrative penalty.
  • If the plan is denied or not implemented, HHSC requires the program provider to pay the amount of the administrative penalty, and the provider may appeal.
  • The program provider can appeal the sole issue of whether the plan for amelioration was implemented if HHSC determines that it was not.

Rule §565.49 – Program Provider Compliance and Corrective Action

Overview:

Rule §565.49 delineates the procedures and requirements for program provider compliance and corrective action. If the Texas Health and Human Services Commission (HHSC) determines from a survey that a program provider complies with the certification standards, HHSC sends a final survey report stating compliance, does not require any action, and certifies the program provider as needed. However, if a program provider is found non-compliant, different actions are mandated depending on the severity and type of non-compliance. Immediate threats necessitate an immediate plan of removal, with specific timelines and approval processes. Failure to provide or implement an approved plan of removal results in denial or termination of certification and alternative services for individuals. The rule outlines the communication, timelines, and consequences of non-compliance, specifying various scenarios, corrective actions, potential imposition of vendor holds, and termination conditions. It also addresses the program provider’s response to actions or inactions of non-staff members.

Key Requirements

  • If HHSC determines a program provider complies with certification standards, it sends a final survey report, requires no further action, and certifies the program provider.
  • For non-compliance constituting an immediate threat, the program provider must immediately provide HHSC with a plan of removal, specifying the removal timeline.
  • HHSC approves or disapproves the plan of removal and monitors to ensure the immediate threat is removed.
  • Failure to provide, get approval for, or implement a plan of removal results in denial or termination of certification and coordination for alternative services for individuals.
  • HHSC communicates non-compliance findings, required corrective actions, and consequences through official notices and reports within specified timelines.
  • Depending on the type and severity of non-compliance, different corrective actions, including vendor holds and contract terminations, may be imposed.
  • Program providers may be cited for violations based on their response to the actions or inactions of individuals who are not service providers or staff members.

Rule §566.1 – Emergency Response System

Overview:

Rule §566.1 outlines the requirements related to the Emergency Response System for program provider designees. The designees must enroll in an emergency communication system following the instructions provided by the Texas Health and Human Services Commission (HHSC). Additionally, they are obligated to respond to requests for information received through this communication system in the format established by HHSC.

Key Requirements

  • The program provider designee is required to enroll in an emergency communication system as per HHSC instructions.
  • The designee must respond to information requests received through the emergency communication system in the prescribed format by HHSC.

Rule §263.501 – Requirements for Home and Community-Based Settings

Overview:

Rule §263.501 details the requirements for home and community-based settings where individuals reside or receive HCS Program services or CFC services. The rule emphasizes the importance of integrating individuals into the greater community and respecting their rights and preferences. The settings must exhibit specific qualities that facilitate the individual’s access to the community, ensuring their rights of privacy, dignity, and respect, and optimizing their autonomy in making life choices. Additionally, the rule provides guidelines on settings presumed to have institutional qualities and exceptions under CMS scrutiny.

Key Requirements:

  • Home and community-based settings must support the individual’s integration and access to the greater community, providing opportunities for employment, community life engagement, control of personal resources, and receiving services in the community.
  • The individual must have the freedom to select the setting from various options, including non-disability specific settings, based on their needs, preferences, and available resources.
  • The setting must safeguard the individual’s rights of privacy, dignity, and respect, and protect them from coercion and restraint.
  • The environment should optimize, not regiment, individual initiative, autonomy, and independence in making life choices, including daily activities, physical environment, and social interactions.
  • HCS Program services and CFC services should not be provided in settings presumed to have the qualities of an institution, which includes settings located in or adjacent to certified institutions or settings that isolate individuals from the broader community.
  • Exceptions are allowed if CMS determines through a heightened scrutiny review that the setting does not have institutional qualities and aligns with home and community-based settings characteristics.

Rule §263.502 – Requirements for Program Provider Owned or Controlled Residential Settings

Overview:

Rule §263.502 expands on the regulations outlined in §263.501, specifically focusing on the standards for residential settings owned or controlled by program providers. This rule emphasizes individual rights, including privacy, choice of roommates, accessibility to food and visitors, and the ability to personalize living spaces. Additionally, it sets guidelines for addressing modifications to these requirements based on individual needs.

Key Requirements:

  • The regulations outlined in this section are supplementary to those detailed in §263.501 and particularly address residential settings where program providers offer residential support, supervised living, or host home/companion care.
  • In these residences, individuals must have privacy in their bedrooms, have the option not to share a bedroom, and if sharing, have a choice of roommates.
  • Bedroom doors must have locks operable by the individual, with keys accessible only to the individual, any roommate, and designated staff.
  • Individuals should have the freedom to furnish and decorate their bedrooms.
  • Residents must have the freedom and support to control their schedule and activities not part of the implementation plan and have access to food at any time while in the residence.
  • Individuals have the right to receive visitors of their choosing at any time.
  • All residences must be physically accessible and free of hazards to the individual.
  • If a program provider identifies a need for modification to these requirements based on an individual’s specific assessed need, they must notify the service coordinator and provide necessary information for updating the Person-Directed Plan (PDP).
  • Upon receiving notification, the service coordinator must convene a service planning team meeting to update the PDP accordingly, after which the program provider can implement the modifications.

Rule §263.503 – Residential Agreements

Overview:

Rule §263.503 details the requirements surrounding residential agreements for individuals receiving residential assistance in the HCS Program. It outlines the responsibilities of service coordinators, program providers, service providers, and individuals or legally authorized representatives (LARs) concerning residential agreements, payment of room and board, eviction procedures, and reporting neglect.

Key Requirements:

  • During the development or update of an individual’s Person-Directed Plan (PDP), a service coordinator must inform the individual or LAR about the residential setting options available in the HCS Program and the responsibilities regarding room and board payments.
  • Individuals or LARs living in a three-person residence, four-person residence, or where host home/companion care is provided, must have a written residential agreement with the program provider or service provider.
  • If an individual or LAR fails to pay room or board as required, they may be evicted following the residential agreement and state law. HHSC will deny residential support, supervised living, or host home/companion care until the delinquent room or board is paid.
  • If an individual is evicted due to non-payment, the service coordinator must update the PDP and Individual Plan of Care (IPC). The individual or LAR must be informed that HHSC will deny services until the payment is made.
  • In case an LAR fails to arrange an alternative living setting for an evicted individual, the program provider must report the LAR’s failure as neglect to the Department of Family and Protective Services (DFPS) and notify the service coordinator.
  • Once the delinquent room or board is paid, the program provider must notify the individual’s service coordinator within one business day.

Rule §263.601 – Program Provider Reimbursement

Overview:

Rule §263.601 details the requirements associated with program provider reimbursement in the HCS Program. This rule describes the various ways in which the Texas Health and Human Services Commission (HHSC) pays program providers for different services, such as supported home living, professional therapies, nursing, respite, and others. The payment methods are based on factors like the reimbursement rate for the specific service, the individual’s Level of Need (LON), and the actual cost of items like adaptive aids and minor home modifications. The rule also outlines the procedures for payment, requirements for reimbursement, and the conditions under which HHSC may impose a vendor hold on payments or terminate the contract.

Key Requirements:

  • HHSC pays program providers for various services according to the reimbursement rate for the specific service or the individual’s LON.
  • Payments for adaptive aids, minor home modifications, and dental treatment are based on the actual cost of the item and, if requested, a requisition fee.
  • Program providers must follow the HCS Program Billing Requirements available on the HHSC website.
  • HHSC pays for Transition Assistance Services (TAS) based on a TAS Assessment and Authorization form authorized by HHSC and the actual cost of the TAS, evidenced by purchase receipts.
  • Pre-enrollment minor home modifications and assessments are paid based on authorization by HHSC and the actual costs, as evidenced by required documentation.
  • HHSC may pay for TAS, pre-enrollment minor home modifications, and assessments regardless of whether the applicant enrolls with the program provider, subject to specific requirements.
  • If a program provider does not submit a corrective action plan or complete a required corrective action within specified time frames, HHSC may impose a vendor hold on payments or terminate the contract.
  • Program providers have the right to an administrative hearing for recoupment, and the requirement for a corrective action plan may change based on the outcome of the hearing.

Rule §263.701 – Process for Individual to Transfer to a Different Program Provider or FMSA

Overview:

Rule §263.701 outlines the process that must be followed when an individual or their Legally Authorized Representative (LAR) wants to transfer to a different program provider or Financial Management Services Agency (FMSA). The service coordinator plays a crucial role in managing this transfer process. They are responsible for confirming the transfer, documenting all relevant information, explaining options to the individual or LAR, coordinating with all involved parties, and ensuring a smooth transfer while maintaining the individual’s health, safety, and continuity of services.

Key Requirements:

  • If a service coordinator receives information that an individual or LAR wants to transfer, they must document the date the information was received and confirm the transfer decision.
  • The service coordinator must explain to the individual or LAR that they may transfer to a program provider or FMSA of their choice, provided they have not reached their service capacity.
  • Once a different program provider or FMSA is selected, the service coordinator must coordinate with all parties to determine a transfer effective date.
  • The transferring program provider is required to provide all pertinent records to ensure health and safety or continuity of services.
  • The service coordinator must complete data entry into the HHSC data system and send the transfer Individual Plan of Care (IPC) and HHSC Request for Transfer of Waiver Program Services form to HHSC within 10 business days after the transfer effective date.
  • In cases where an individual was evicted for not paying room or board and still owes, the service coordinator must inform the individual or LAR that HHSC will deny specific services until the delinquent amount is paid.

Rule §263.702 – Process for Individual to Receive a Service Through the CDS Option that the Individual is Receiving from a Program Provider

Overview:

Rule §263.702 provides a comprehensive framework for an individual to transition to receiving a service through the Consumer Directed Services (CDS) option, which they were initially receiving from a Program Provider. This rule outlines the steps and procedures that need to be followed by the service coordinator, the individual, and the program provider to ensure a smooth transition and continuity of service.

Key Requirements:

  • The service coordinator plays a pivotal role, ensuring that the individual or LAR is informed about the CDS option and assisting in the transition if the individual opts for this service model.
  • The individual or LAR has the right to choose the CDS option for receiving services and should be provided with all necessary information and support to make an informed decision.
  • The original program provider is responsible for cooperating in the transition process, providing all necessary information and documentation to facilitate the switch to the CDS option.
  • Proper documentation and communication between all parties are essential to ensure that the individual continues to receive the required services without interruption during the transition.
  • The rule emphasizes the importance of adhering to timelines and ensuring that the individual’s preferences and needs are prioritized throughout the process.

Rule §263.703 – Denial of a Request for Enrollment into the HCS Program

Overview:

Rule §263.703 specifies the conditions and procedures for the denial of an individual’s request for enrollment into the HCS Program. If an individual does not meet the eligibility criteria as described in §263.101 of this chapter, their request for enrollment will be denied by HHSC. Upon denial, HHSC sends a written notice to the individual or LAR, informing them of the denial and their right to request a fair hearing in accordance with §263.801 of this chapter (Fair Hearing). The individual’s service coordinator and the program provider also receive a copy of this written notice.

Key Requirements:

  • HHSC will deny an individual’s request for enrollment into the HCS Program if the individual does not meet the eligibility criteria described in §263.101 of this chapter.
  • Upon denial of enrollment, HHSC must send a written notice to the individual or their LAR, informing them of the denial and outlining the individual’s right to request a fair hearing in accordance with §263.801 of this chapter.
  • A copy of the written notice of denial must also be sent to the individual’s service coordinator and the program provider.

Rule §263.704 – Denial of HCS Program Services or CFC Services

Overview:

Rule §263.704 delineates the conditions and procedures under which the HHSC denies HCS Program services or CFC services. This denial is based on a review as described in §263.303 and §263.302 of this chapter, and occurs if HHSC determines that the services do not meet the requirements outlined in §263.301 of this chapter. The rule specifies the instances in which residential support, supervised living, or host home/companion care can be denied, particularly when an individual was evicted and has not paid the delinquent room or board. Upon denial, HHSC modifies the IPC in the HHSC data system, sends written notice to the individual or LAR, and informs them of their right to request a fair hearing. A copy of the written notice is also sent to the individual’s service coordinator and the program provider.

Key Requirements:

  • HHSC denies HCS Program services or CFC services based on a review as per §263.303 or §263.302, if the services do not meet the requirements described in §263.301 of this chapter.
  • Residential support, supervised living, or host home/companion care can be denied if the individual was evicted from a specified residence and has not paid the delinquent room or board.
  • Upon denial of a service, HHSC modifies the IPC in their data system and sends a written notice to the individual or LAR, outlining the right to request a fair hearing in accordance with §263.801.
  • A copy of the written notice of denial is sent to the individual’s service coordinator and the program provider.

Rule §263.705 – Suspension of HCS Program Services and CFC Services

Overview:

Rule §263.705 stipulates the conditions under which an individual’s HCS Program services and CFC services are suspended by the HHSC. This occurs if the individual is temporarily admitted to specific types of facilities, including hospitals, nursing facilities, mental health facilities, residential child care facilities, and others. The rule outlines the responsibilities of service coordinators and program providers in notifying each other and the HHSC about the individual’s temporary admission and suspension of services. The service coordinator is required to review the individual’s circumstances regularly and document reasons for continuing the suspension. The rule also provides guidelines for extending the suspension and resuming services upon the individual’s discharge from the facility.

Key Requirements

  • HHSC suspends an individual’s HCS Program services and CFC services if the individual is temporarily admitted to certain specified facilities such as hospitals, ICF/IID, nursing facilities, mental health facilities, etc.
  • Service coordinators must notify the individual’s program provider of the temporary admission within one business day after becoming aware of it.
  • Program providers are required to enter a suspension of the individual’s services in the HHSC data system within one business day after becoming aware of the temporary admission and notify the service coordinator of the suspension.
  • During a temporary admission, an individual is not considered to be residing in the facility.
  • Service coordinators must review the individual’s circumstances and document reasons for continuing the suspension at least every 30 calendar days after the effective date of the suspension.
  • If a service coordinator determines that an individual’s suspension should be extended, they must request HHSC to extend the suspension by completing and submitting the relevant form before the end of the first 270 calendar days of the temporary admission or the end of a previously granted 30 calendar-day extension.
  • HHSC may extend an individual’s suspension for 30 calendar days based on a service coordinator’s request.
  • Program providers must remove the entry of a suspension from the HHSC data system and resume the provision of services to the individual upon the individual’s discharge from the facility to which they have been temporarily admitted.

Rule §263.706 – Reduction of HCS Program Services or CFC Services

Overview:

Rule §263.706 outlines the process that the Health and Human Services Commission (HHSC) follows when proposing a reduction of an HCS Program service or CFC service on an individual’s Individualized Plan of Care (IPC). The rule details the conditions under which a service can be reduced, the notification process, and the individual’s right to request a fair hearing.

Key Requirements:

  • HHSC may propose a reduction of services on an individual’s IPC based on specific reviews, if it determines that the service does not meet certain requirements.
  • When a reduction of service is proposed, HHSC is obligated to send written notice to the individual or their Legally Authorized Representative (LAR), informing them of the proposed reduction and their right to request a fair hearing.
  • A copy of the written notice of the proposed reduction must also be sent to the individual’s service coordinator and the program provider.
  • If the individual or LAR requests a fair hearing before the effective date of the proposed reduction, the service must continue until the hearing decision is made.

Rule §263.707 – Termination of HCS Program Services and CFC Services with Advance Notice

Overview:

Rule §263.707 delineates the procedures and conditions under which the Health and Human Services Commission (HHSC) may terminate an individual’s HCS Program services or CFC services with advance notice. The rule specifies the reasons for termination, the notification process, and the rights of the individual affected.

Key Requirements:

  • HHSC may terminate services if it determines that the individual no longer meets the eligibility criteria, the individual requests termination, or for other specified reasons.
  • The individual or their Legally Authorized Representative (LAR) must be provided with advance written notice detailing the reason for termination, the effective date, and their rights.
  • The notice must inform the individual of their right to request a fair hearing to contest the termination.
  • Services must continue to be provided if a fair hearing is requested before the effective date of termination, until a final decision is reached.
  • The written notice of termination must also be sent to the individual’s service coordinator and the program provider.

Rule §263.708 – Termination of HCS Program Services and CFC Services Without Advance Notice

Overview:

Rule §263.708 stipulates the circumstances under which HHSC terminates an individual’s HCS Program services and CFC services. The rule defines specific conditions that necessitate such termination and elucidates the processes and obligations related to service termination.

Key Requirements:

  • HHSC terminates an individual’s HCS Program and CFC services under several conditions:
    • If the individual is admitted to one of the facilities listed in §263.705(a)(1) – (9) for more than 270 consecutive calendar days, and HHSC has not extended the individual’s suspension.
    • Upon receiving factual information confirming the death of the individual.
    • If a clear written statement is received, signed by the individual or LAR, stating that the individual no longer wants HCS Program services.
    • When the individual’s whereabouts are unknown, and mail directed to the individual is returned without a forwarding address.
    • If HHSC establishes that the individual has been accepted for Medicaid services by another state.
  • When a service coordinator is aware of any of the above situations, they must request HHSC to terminate the individual’s services by completing and submitting the HHSC Request for Termination of Services form.
  • Upon receiving a termination request form, HHSC sends written notice to the individual or LAR, informing them of the termination of HCS Program services and CFC services and including information on the individual’s right to request a fair hearing in accordance with §263.801.

Rule §263.801 – Fair Hearing

Overview:

Rule §263.801 details the conditions and procedures for an applicant or individual to request a fair hearing. This rule is applicable to applicants whose requests for eligibility for the HCS Program have been denied or not acted upon promptly, and individuals who have experienced termination, suspension, denial, or reduction of HCS Program services or CFC services by HHSC.

Key Requirements:

  • Applicants who have had their request for eligibility for the HCS Program denied or not acted upon with reasonable promptness have the right to request a fair hearing.
  • Individuals whose HCS Program services or CFC services have been terminated, suspended, denied, or reduced by HHSC are entitled to request a fair hearing.
  • The notice of the right to request a fair hearing must be provided in accordance with 1 TAC Chapter 357, Subchapter A, relating to Uniform Fair Hearing Rules.

Rule §263.802 – Program Provider’s Right to Administrative Hearing

Overview:

Rule §263.802 stipulates the conditions under which a program provider may request an administrative hearing. This provision is applicable when the Health and Human Services Commission (HHSC) either takes or proposes to take actions such as imposing a vendor hold, terminating a contract, recouping payments made to the program provider, or denying a program provider’s claim for payment.

Key Requirements:

  • A program provider has the right to request an administrative hearing if the HHSC proposes or takes specific actions including vendor hold, contract termination, recoupment of payments, or denial of a claim for payment.
  • If the dispute is regarding an LON (Level of Need) assignment, the program provider is only entitled to an administrative hearing if a reconsideration was previously requested in accordance with §263.108, relating to the Reconsideration of LON Assignment.

Rule §263.901 – LIDDA Requirements for Providing Service Coordination in the HCS Program

Overview:

Rule §263.901 delineates the requirements for Local Intellectual and Developmental Disability Authorities (LIDDA) in providing service coordination in the Home and Community-based Services (HCS) Program. It mandates compliance with relevant chapters and regulations, specifies qualifications and training for service coordinators, and outlines processes for complaint resolution and addressing concerns related to the implementation of the Person-Directed Plan (PDP).

Key Requirements:

  • LIDDA must comply with the specified chapter, 40 TAC Chapter 41 related to Consumer Directed Services Option, and 40 TAC Chapter 4, Subchapter L concerning Abuse, Neglect, and Exploitation in Local Authorities and Community Centers.
  • A service coordinator employed by LIDDA must meet the minimum qualifications and LIDDA staff training requirements described in Chapter 331, with additional comprehensive non-introductory person-centered service planning training developed or approved by HHSC within six months after hire.
  • Service coordinators must receive training about the rules governing the HCS Program and CFC, and 40 TAC Chapter 41 within the first 90 calendar days after beginning service coordination duties.
  • LIDDA must have a process for receiving and resolving complaints from a program provider related to the LIDDA’s provision of service coordination or the enrollment process in the HCS Program.
  • In case of concerns identified during monitoring with the implementation of the PDP, LIDDA must communicate with the program provider to resolve them and may refer unresolved concerns to HHSC by calling the HHSC IDD Ombudsman toll-free telephone number.
  • Service coordinators are tasked with assisting individuals, Legally Authorized Representatives (LAR), or actively involved persons in exercising the legal rights of the individual and providing necessary information and booklets regarding rights in the Home and Community-based Services (HCS) Program and Community First Choice (CFC).

Rule §263.902 – Permanency Planning

Overview:

Rule §263.902 stipulates the guidelines and requirements for permanency planning for applicants under 22 years of age moving from a family setting and requesting supervised living or residential support. This rule details the roles and responsibilities of a Local Intellectual and Developmental Disability Authority (LIDDA) during the enrollment process, the objectives of the permanency planning meeting, and the procedures for updating and reviewing the permanency plan.

Key Requirements:

  • The provisions of this section apply to applicants under 22 years of age moving from a family setting and requesting supervised living or residential support.
  • During the enrollment process, LIDDA must review the applicant’s records, inform the applicant and Legally Authorized Representative (LAR) about various aspects of living arrangements and permanency planning, and convene a permanency planning meeting.
  • During the meeting, participants must discuss and choose a permanency planning goal, identify issues, needs, barriers, supports, and actions to achieve the chosen goal.
  • LIDDA must make reasonable accommodations to promote the participation of the LAR in a permanency planning meeting.
  • LIDDA is required to develop a permanency plan using the specified form, complete necessary reviews, and provide copies of the permanency plan to relevant parties.
  • The applicant and LAR may request a volunteer advocate to assist in permanency planning, and LIDDA must designate a suitable volunteer advocate if requested.
  • LIDDA must conduct regular reviews and updates of the individual’s permanency plan every six months until the individual turns 22 or no longer receives certain services.
  • If LIDDA receives information that an individual under 22 has moved from a family setting, it must provide necessary information and conduct permanency planning as described in the rule.

Rule §263.903 – Referral from HHSC to DFPS

Overview:

Rule §263.903 establishes the procedure for referrals from the Health and Human Services Commission (HHSC) to the Department of Family and Protective Services (DFPS) when HHSC is unable to locate the parent or Legally Authorized Representative (LAR) within a year of receiving specific notifications as detailed in §263.901(e)(33)(B) or (34)(B). This rule delineates the different divisions within DFPS that cases are referred to, depending on the age of the individual involved.

Key Requirements:

  • If HHSC is unable to locate the parent or LAR within one year after receiving the notification described in §263.901(e)(33)(B) or (34)(B), the case must be referred to DFPS.
  • For individuals under 18 years of age, the case is referred to the Child Protective Services Division of DFPS.
  • For individuals who are at least 18 years of age but under 22 years of age, the case is referred to the Adult Protective Services Division of DFPS.

Rule §263.1000 – Exceptions to Certain Requirements During Declaration of Disaster

Overview:

Rule §263.1000 delineates exceptions that HHSC may allow program providers and service coordinators to use during the period when a declaration of disaster is in effect according to Texas Government Code §418.014. The rule specifies the conditions under which signatures are not required, assessments and meetings can be conducted remotely, and service limits for adaptive aids and minor home modifications may be exceeded. The rule also outlines the process for HHSC notifications, documentation requirements, and approvals for exceptions.

Key Requirements:

  • HHSC may permit the use of exceptions during a declared state of disaster and will notify program providers and LIDDAs of any allowed exceptions and the expiry date for such exceptions.
  • In a disaster area, signatures of individuals are not required on implementation plans if certain conditions are met, including oral agreement and documentation of such agreement.
  • Comprehensive nursing assessments and standardized measures of intellectual functioning and adaptive abilities can be conducted via telehealth services, videoconferencing, or telephone for individuals residing in the disaster area.
  • ICAP assessments can be conducted by videoconferencing.
  • Program providers are not required to ensure signatures on renewed or revised IPCs under specified conditions.

Rule §263.2003 – Types of Individualized Skills and Socialization

Overview:

Rule §263.2003 categorizes individualized skills and socialization into three distinct types, elucidating the different settings or locations where these services can be provided. This classification helps in understanding and organizing the provision of individualized skills and socialization within the Home and Community-based Services (HCS) Program and Community First Choice (CFC).

Key Requirements:

  • Individualized skills and socialization are classified into three types: on-site, off-site, and in-home.
  • On-site individualized skills and socialization occur at a designated location.
  • Off-site individualized skills and socialization are conducted away from the designated location.
  • In-home individualized skills and socialization take place within the individual’s residence.

Rule §263.2005 – Description of On-Site and Off-Site Individualized Skills and Socialization

Overview:

Rule §263.2005 delineates the characteristics and guidelines for on-site and off-site individualized skills and socialization within the HCS Program. This rule clarifies the types of activities involved, the permissible settings, and the roles and responsibilities of service providers and coordinators.

Key Requirements:

  • Nature of Activities:
    • Activities aim to enhance self-help, adaptive skills, independence, socialization, community participation, and employment goals in alignment with the individual’s PDP.
    • Services support the individual’s pursuit of employment and provide personal assistance for those who cannot manage personal care needs during activities.
    • Medication assistance and tasks delegated by registered nurses are provided as determined by assessments.
  • Settings and Restrictions:
    • On-site services occur in a building owned or leased by a provider, not in an individual’s residence or settings where residency is restricted by HCS Program rules.
    • Settings presumed to have institutional qualities are prohibited unless approved by CMS.
    • On-site settings must be physically accessible, hazard-free, and allow individual control over schedule, food access, and visitors.
    • Off-site services occur in a community setting chosen by the individual, integrating them into the community and promoting skill and behavior development.
  • Modifications and Assessments:
    • If modifications to requirements are needed, the provider must inform the program provider, who then notifies the service coordinator.
    • The service planning team updates the PDP to include specific details and justifications for the modification, ensuring no harm to the individual.
  • Transportation and Costs:
    • Transportation is included between on-site locations and from on-site to off-site locations.
    • Providers are not responsible for the cost of an individual participating in an off-site activity.

Rule §263.2007 – Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization

Overview:

Rule §263.2007 outlines the nature of in-home individualized skills and socialization and specifies the criteria that an individual must meet to receive these services within the HCS Program. The services aim to support individuals in acquiring, retaining, and improving various skills necessary for community living.

Key Requirements:

  • Services Provided:
    • Assistance with acquiring, retaining, and improving self-help, socialization, and adaptive skills.
    • Provision of age-appropriate activities that enhance self-esteem and maximize functional level.
    • Reinforcement of skills or lessons taught in various settings or during the provision of any HCS Program service or non-waiver service.
    • Provision of personal assistance for those who cannot manage personal care needs during the service.
    • Assistance with medications and performance of tasks delegated by a registered nurse, as determined by an assessment, in accordance with state law and rules.
  • Eligibility Criteria:
    • A physician must document that the individual’s medical condition justifies the provision of in-home services.
    • A licensed professional or behavioral supports service provider must document that the individual’s behavioral issues justify the provision of in-home services.
    • The individual must be 55 years of age or older and request to receive in-home individualized skills and socialization.

Rule §263.2009 – Exceptions to Certain Requirements During Declaration of Disaster

Overview:

Rule §263.2009 describes the conditions under which the Health and Human Services Commission (HHSC) may allow exceptions to certain requirements for the provision of in-home individualized skills and socialization services during a declared state of disaster.

Key Requirements:

  • Notification by HHSC:
    • HHSC may allow exceptions while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect.
    • HHSC notifies program providers if an exception is allowed and specifies the date until which the exception can be used, which may be before the expiration of the declaration of a state of disaster.
  • Definition of Disaster Area:
    • In this context, “disaster area” refers to the area of the state specified in the executive order or proclamation declaring a state of disaster.
  • Exceptions to Criteria for Receiving In-Home Services:
    • Notwithstanding §263.2007, an individual residing in the disaster area is not required to meet any of the criteria described in §263.2007(b) to receive in-home individualized skills and socialization.
  • Exceptions to Documentation Requirements:
    • If an individual residing in the disaster area does not meet any of the criteria described in §263.2007(b), a program provider is not required to obtain the documentation described in §263.2013(b) for the provision of in-home individualized skills and socialization.

Rule §263.2011 – Provision of On-Site and Off-Site Individualized Skills and Socialization

Overview:

Rule §263.2011 outlines the requirements regarding the provision of on-site and off-site individualized skills and socialization by an individualized skills and socialization provider. This includes the availability of both on-site and off-site services to an individual and adherence to the individual’s Person-Directed Plan (PDP), Individual Plan of Care (IPC), and implementation plan.

Key Requirements:

  • Provider Qualifications:
    • On-site and off-site individualized skills and socialization must be provided by a qualified individualized skills and socialization provider.
    • The provider must be either the program provider or a contractor of the program provider.
  • Availability of Services:
    • A program provider is required to make both on-site and off-site individualized skills and socialization services available to an individual.
  • Adherence to Plans:
    • The individualized skills and socialization provider must provide services in accordance with the individual’s PDP, IPC, and implementation plan.

Rule §263.2013 – Provision of In-Home Individualized Skills and Socialization

Overview:

Rule §263.2013 stipulates the requirements for the provision of in-home individualized skills and socialization. It outlines where the service should be provided, who can provide the service, and the necessary documentation before the service can be delivered.

Key Requirements:

  • Location of Service:
    • In-home individualized skills and socialization must be provided in the residence of the individual receiving the service.
  • Provider Specifications:
    • In-home individualized skills and socialization is not mandated to be provided by an individualized skills and socialization provider.
  • Required Documentation:
    • Before providing the service, a program provider must obtain one of the following documentations:
      • Confirmation from a physician that the individual’s medical condition justifies the provision of in-home individualized skills and socialization.
      • Documentation from a licensed professional or behavioral supports service provider indicating that the individual’s behavioral issues justify the provision of the service.
      • Proof that the individual is 55 years of age or older and has requested to receive in-home individualized skills and socialization.

Rule §263.2015 – Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization

Overview:

Rule §263.2015 outlines the service limits for the combined total of on-site, off-site, and in-home individualized skills and socialization, specifying the maximum hours per IPC year, calendar day, and calendar week.

Key Requirements:

  • Hours per IPC Year:
    • The combined total of on-site, off-site, and in-home individualized skills and socialization is limited to 1560 hours during an IPC year.
  • Hours per Calendar Day:
    • The service limit is six hours per calendar day.
  • Days per Calendar Week:
    • The service can be provided for a maximum of five days per calendar week.

Rule §263.2017 – Staffing Ratios for Off-Site Individualized Skills and Socialization

Overview:

Rule §263.2017 specifies the staffing ratios for service providers of off-site individualized skills and socialization to individuals receiving such services, based on the Level of Need (LON) of the individuals.

Key Requirements:

  • The staffing ratios are as follows:
    • 1:8 Ratio: One service provider to eight individuals with LON 1 or LON 5 without an enhanced staffing rate.
    • 1:2 Ratio: One service provider to two individuals with LON 8 or LON 6, or individuals with LON 1 or LON 5 with level one enhanced staffing rate.
    • 1:1 Ratio: One service provider to one individual with LON 1, LON 5, LON 8, or LON 6 with the level two enhanced staffing rate, or individuals with LON 9.
  • Ratios can include individuals with different LONs. If so, the ratio must adhere to the lowest staffing ratio based on:
    • The staffing ratio for the individual with the highest level of need.
    • The staffing ratio required by §262.917(a) if including a person in the TxHmL Program.
    • The staffing ratio required by §260.507(a) if including a person in the DBMD Program.
  • A service provider assigned to individuals represented in a ratio must provide services only to those individuals.

Rule §263.2019 – Discontinuation of Day Habilitation

Overview:

Rule §263.2019 outlines the discontinuation of day habilitation, including in-home day habilitation, as a service in the HCS Program, effective March 1, 2023.

Key Requirements:

  • Day habilitation, including in-home day habilitation, is not considered a service in the HCS Program from March 1, 2023, onward.

Rule §263.2021 – Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC

Overview:

Rule §263.2021 specifies the procedure for including on-site, off-site, and in-home individualized skills and socialization on an Individual Plan of Care (IPC) and outlines the requirements for discontinuing day habilitation from IPCs effective March 1, 2023.

Key Requirements:

  • If an applicant desires and meets the criteria for any form of individualized skills and socialization:
    • A service coordinator must include the type and amount of individualized skills and socialization on the applicant’s Person-Directed Plan (PDP) and the initial IPC.
    • A program provider must develop an implementation plan for the individualized skills and socialization.
  • For renewing or revising an IPC to include individualized skills and socialization:
    • Both the service coordinator and program provider must comply with the rules governing the HCS Program.
    • An implementation plan describing the individualized skills and socialization must be developed.
  • If an individual or their Legally Authorized Representative (LAR) chooses only one form of individualized skills and socialization (either on-site or off-site, but not both), this decision must be documented in the individual’s PDP.
  • Service coordinators and program providers must ensure that IPCs effective on or after March 1, 2023, do not include day habilitation.
  • For IPCs revised between March 1, 2023, and February 29, 2024, they should only include the amount of day habilitation that was provided to the individual before March 1, 2023.

Rule §263.2023 – Service Provider Qualifications and Training for In-Home Individualized Skills and Socialization

Overview:

Rule §263.2023 outlines the qualifications and training requirements for service providers delivering in-home individualized skills and socialization under the Home and Community-Based Services (HCS) Program and Community First Choice (CFC).

Key Requirements:

  • A service provider of in-home individualized skills and socialization must be at least 18 years old and meet one of the following qualifications:
    • Possess a high school diploma or a certificate recognized by a state as equivalent to a high school diploma.
    • Have documentation of a proficiency evaluation, which includes:
      • A written competency-based assessment of the ability to document service delivery and observations of the individuals to be served.
      • At least three written personal references from persons not related by blood, indicating the ability to provide a safe, healthy environment for the individuals being served.
  • Additionally, the service provider must complete training as required by the rules governing the HCS Program.

Rule §263.2025 – Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization

Overview:

This rule outlines the conditions and scenarios under which the HHSC will pay program providers for providing on-site, off-site, and in-home individualized skills and socialization services, as well as the circumstances under which payments may be recouped.

Key Requirements:

  • HHSC pays for services in accordance with an individual’s Level of Need (LON) and the established reimbursement rates.
  • Enhanced staffing rates may be applied, subject to approval, based on the individual’s LON.
  • Claims should not be submitted if an individual’s HCS Program services and CFC services are suspended or terminated.
  • HHSC will not pay or will recoup payments if services are not provided as per the established guidelines, including:
    • Ineligibility of the individual for the HCS Program.
    • Absence of proper documentation and authorizations.
    • Non-compliance with HCS Program Billing Requirements and other related rules.
    • Service provider failing to meet the necessary qualifications.
    • Services not being provided or incorrectly documented.
    • Providing services during certain prohibited conditions.
  • HHSC does not pay for day habilitation provided on or after March 1, 2023.
  • Provider fiscal compliance reviews will be conducted to ensure compliance with this subchapter.

Rule §263.2027 – Enhanced Staffing Rate

Overview:

This rule delineates the process and requirements for a program provider to request enhanced staffing rates for off-site individualized skills and socialization, based on an individual’s Level of Need (LON). It also outlines the criteria for approval, the process for review, and the rights to request an administrative hearing.

Key Requirements:

  • Request Submission:
    • Program providers can request level one or level two enhanced staffing rates by submitting specific documentation to HHSC, including:
      • HHSC Enhanced Staffing Rate Request Form,
      • The most recent ICAP scoring booklet, ID/RC Assessment, PDP, and implementation plan,
      • Other supporting documentation, such as behavior support plan, physician’s order, assessments, nursing assessment, and CFC PAS/HAB assessment.
  • Approval Criteria:
    • HHSC approves requests if the submitted documentation demonstrates that the individual requires more service provider support than provided by their assigned LON, due to mobility, medical, or behavioral needs.
  • Review of Enhanced Rates:
    • HHSC can review an approved enhanced staffing rate at any time to determine its appropriateness.
    • Upon review, program providers must submit documentation supporting the enhanced staffing rate as per HHSC’s request.
  • Notification and Appeals:
    • Program providers are notified of the approval or denial through the HHSC data system.
    • In case of denial, program providers can request an administrative hearing in accordance with established regulations.

Rule §561.3 – Employment and Registry Information

Overview:

This rule outlines the requirements for facilities, agencies, and individual employers regarding the Employee Misconduct Registry (EMR) and Nurse Aide Registry (NAR) before hiring and during the employment of an individual.

Key Requirements:

  • Pre-employment Search:
    • Before hiring, facilities, agencies, individual employers, or FMSAs on their behalf, must search the EMR and NAR.
    • The aim is to determine if the applicant is listed as unemployable on either registry.
  • Restriction on Hiring:
    • Entities must not hire or continue to employ individuals listed as unemployable in the EMR or NAR.
  • Information to Employee:
    • Within five working days after hiring, employers must provide written information to the employee explaining:
      • That a person listed in the EMR is not employable.
      • The governance of the EMR by this chapter and Texas Health and Safety Code Chapter 253.
  • Annual Search Requirement:
    • Employers or FMSAs on their behalf must annually search the EMR and NAR to check the employability status of their employees.
  • Record Keeping:
    • A copy of the results from the searches conducted as per this rule must be maintained in the records of the entity conducting the search.

Rule §559.201 – Purpose

Overview:

This rule establishes the purpose and applicability of licensing procedures, standards, and requirements for individualized skills and socialization providers operating as Day Activity and Health Services (DAHS) facilities.

Key Requirements:

  • Purpose:
    • Establishes licensing procedures, standards, and requirements for individualized skills and socialization providers licensed as DAHS facilities, in accordance with Texas Human Resources Code Chapter 103.
  • Applicability:
    • Applicable to individualized skills and socialization providers and the provision of both on-site and off-site individualized skills and socialization services.
  • Exclusions:
    • Does not apply to DAHS facilities providing services in the DAHS program.
    • Does not apply to the provision of in-home individualized skills and socialization in the Home and Community-based Services and Texas Home Living waiver programs.

Rule §559.203 – Definitions

Overview:

Rule §559.203 serves to establish clear and concise definitions for various terms used within the subchapter. These definitions are crucial for ensuring uniform understanding and interpretation of the regulations, standards, and requirements pertaining to Individualized Skills and Socialization Provider Requirements.

Key Requirements:

  • Change of Ownership: Refers to events resulting in alterations to the federal taxpayer identification number of a license holder of a facility. It does not include the substitution of a personal representative for a deceased license holder.
  • Community Setting: Defined as a setting within an individual’s community that is accessible to the general public.
  • Day Activity and Health Services (DAHS) Directory: A list maintained by the HHSC, which includes all DAHS providers, encompassing individualized skills and socialization providers.
  • Individualized Skills and Socialization Provider: A provider licensed by HHSC to offer individualized skills and socialization services. A provider is considered as such once licensed.
  • On-site Individualized Skills and Socialization Location: The building or part of a building, owned or leased by an individualized skills and socialization provider, where on-site individualized skills and socialization is provided.
  • Service Provider: An individual, possibly an employee, contractor, or volunteer, who directly provides individualized skills and socialization services to an individual.
  • Legally Authorized Representative (LAR): A person with legal authorization to act on behalf of another person in matters described in this subchapter. This could be a parent, guardian, agent appointed under a power of attorney, or a representative appointed by the Social Security Administration.
  • Online Licensure Portal: Refers to the Texas Unified Licensure Information Portal (TULIP) system, which is the online system for submitting long-term care licensure applications.
  • Implementation Plan and Individual Plan of Care (IPC): Defined as written documents developed by a program provider outlining outcomes, objectives, and services for each program service to be provided.
  • Off-site Individualized Skills and Socialization Only: Refers to a service provider who exclusively delivers off-site individualized skills and socialization services.
  • Texas Home Living (TxHmL) Program: A waiver program operated by HHSC and approved by CMS in accordance with §1915(c) of the Social Security Act.
  • Deaf Blind with Multiple Disabilities (DBMD) Program: Another waiver program operated by HHSC, as authorized by the Centers for Medicare & Medicaid Services (CMS) in accordance with §1915(c) of the Social Security Act.
  • Home and Community-based Services (HCS) Program: A waiver program operated by HHSC as authorized by CMS in accordance with §1915(c) of the Social Security Act.

Rule §559.205 – Criteria for Licensing

Overview:

Rule §559.205 outlines the criteria and procedures for obtaining a license to provide individualized skills and socialization services in Texas. The rule details the application process, the required documentation, the conditions for approval, and the obligations post-licensure, ensuring compliance with the Texas Human Resources Code, Chapter 103, and the relevant subchapter.

Key Requirements:

  • An entity must obtain a license from the Texas Health and Human Services Commission (HHSC) to establish or provide individualized skills and socialization services in Texas.
  • The provider must be listed on HHSC’s Day Activity and Health Services (DAHS) directory to provide such services.
  • Applicants must submit a complete application form, follow the instructions, upload required documentation, and submit the license fee through the online licensure portal.
  • Applicants must complete HHSC required training and provide documentation of its completion through the online portal.
  • Various pieces of information including the name of the business entity, tax identification number, CEO name, ownership information, location address, program providers’ names, maximum number of individuals to be served, effective date, community engagement plan, and other relevant details must be submitted as part of the application.
  • HHSC may deny an application that remains incomplete after 120 days.
  • HHSC considers the background and qualifications of the applicant, persons with a disclosable interest, affiliates, administrators, managers, and others as defined by the application instructions before issuing a license.
  • If the applicant is located within a prohibited setting as defined by the rules governing the HCS Program and hasn’t been approved through heightened scrutiny, the application will be referred for enforcement.
  • HHSC may issue a temporary initial license effective for 180 days, which may be extended until the applicant demonstrates compliance through an on-site survey. This provision is applicable through the end of HHSC fiscal year 2023.
  • A license is issued if the applicant, all relevant persons, and the provider meet all applicable requirements and the location meets all requirements of this subchapter.
  • HHSC will implement a system of staggered expiration dates for licenses. Applicants may receive a one, two, or three-year license.
  • Providers must not serve more individuals than specified on their license.
  • The license must be prominently displayed in a public area of the location or in the designated place of business for off-site only providers.
  • If any information submitted through the application process changes post-licensure, the license holder must submit an application through the online licensure portal to make the changes.

Rule §559.207 – Increase in Capacity

Overview:

Rule §559.207 establishes the protocol for a license holder seeking to increase capacity during the license term. The rule mandates that an increase in capacity requires approval from the Texas Health and Human Services Commission (HHSC) and outlines the application process for such approval.

Key Requirements:

  • A license holder may not increase capacity during the license term without obtaining approval from HHSC.
  • To seek approval for an increase in capacity, the license holder must submit a complete application through the online licensure portal.
  • If HHSC approves the increase in capacity, a new license will be issued to the license holder.

Rule §559.209 – Renewal Procedures and Qualifications

Overview:

Rule §559.209 outlines the procedures and qualifications for renewing a license under this chapter. It specifies the requirements for timely renewal, the validity period of renewed licenses, and the circumstances under which a renewal application may be denied. The rule also details the necessary content of the renewal application and the consequences of failing to submit a timely and sufficient application.

Key Requirements:

  • A license issued under this chapter must be renewed before its expiration date and is not automatically renewed.
  • All renewal licenses issued under this subchapter are valid for three years.
  • The submission of a license fee alone does not constitute an application for renewal.
  • A license holder must submit an application for renewal through the online licensure portal no later than the 45th day before the expiration date of the current license.
  • A complete application or an incomplete application with an explanatory letter must be received by HHSC within the specified deadlines. A late fee is applicable if received during the 45-day period ending on the date the current license expires.
  • A timely and sufficient application, including submission of the required fee, is necessary to prevent the expiration of the license.
  • Applications for renewal submitted after the expiration date of the license will not be accepted, necessitating submission of an application for an initial license.
  • The renewal application must contain the same information required for an original application and the applicable license fee.
  • Renewal of a license may be denied for the same reasons an original application for a license may be denied.

Rule §559.211 – Change of Ownership and Notice of Changes

Overview:

Rule §559.211 details the procedures and requirements associated with changes in ownership of individualized skills and socialization providers. It specifies the process for obtaining a temporary change of ownership license, the responsibilities of the existing and new license holders, and the conditions under which HHSC may approve such changes. The rule also outlines the requirements for notifying HHSC of changes in ownership interest, name changes, and the circumstances under which waivers and extensions may be granted.

Key Requirements:

  • A license holder cannot transfer its license. An applicant proposing to become the new license holder must obtain a temporary change of ownership license, followed by an initial three-year license.
  • The applicant must submit a complete change of ownership application, application fee, and a signed and notarized Change of Ownership Transfer Affidavit to HHSC through the online licensure portal.
  • Applications for change of ownership should be submitted at least 30 days before the anticipated date of change, though HHSC may waive this requirement under certain circumstances.
  • Upon approval, HHSC issues a temporary change of ownership license, making the existing license holder’s license invalid as of the effective date of the change of ownership.
  • The temporary change of ownership license expires either 90 days after its effective date or upon the issuance of a three-year license, whichever comes first. Extensions may be granted at HHSC’s discretion.
  • HHSC conducts an on-site survey or a desk review to verify compliance with licensure requirements after issuing a temporary change of ownership license.
  • A three-year license is issued if all requirements are satisfied and the provider passes the change of ownership survey.
  • License holders adding an owner with a disclosable interest or changing their name without undergoing a change of ownership must notify HHSC and submit the required documentation through the online licensure portal.

Rule §559.213 – Time Periods for Processing Licensing Applications

Overview:

Rule §559.213 outlines the time frames within which the Texas Health and Human Services Commission (HHSC) is required to process various types of licensing applications for individualized skills and socialization providers. The rule specifies when applications are considered complete, the circumstances under which HHSC may delay processing, and the rights of applicants if established time periods are exceeded. Additionally, it details the conditions constituting good cause for delay and the procedure for applicants to appeal for reimbursement of filing fees.

Key Requirements:

  • HHSC will only process applications received within 60 days before the requested date of the issuance of the license.
  • An application is deemed complete when all licensing requirements, including compliance with standards and payment of the licensing fee, have been met.
  • HHSC will notify applicants within 30 days of receiving any incomplete initial, change of ownership, renewal, or increase in capacity applications.
  • A license will generally be issued or denied within 30 days after the receipt of a complete application or within 30 days before the expiration date of the license. However, delays of up to six months are permissible if the provider is subject to a proposed or pending licensure termination action.
  • Applicants have the right to request full reimbursement of all filing fees if the application is not processed within the established time periods, unless HHSC finds that good cause existed for the delay.
  • Good cause for delay is considered to exist if the number of applications exceeds by 15 percent or more those processed in the same calendar quarter of the preceding year, if another entity used in the application process caused the delay, or if other conditions giving good cause existed.
  • If a request for reimbursement is denied, the applicant may appeal to HHSC by sending a statement describing the request and the reasons for it. HHSC will make a decision concerning the appeal and notify the applicant.

Rule §559.215 – Criteria for Denying a License or Renewal of a License

Overview:

Rule §559.215 outlines the criteria under which the Texas Health and Human Services Commission (HHSC) may deny an initial license or the renewal of a license for individualized skills and socialization providers. This rule elaborates on various scenarios and conditions, such as noncompliance, provision of false information, failure to pay fees, and history of certain actions, which may lead to denial. It also details the consideration of final actions, examination of compliance records for applicants owning multiple facilities, and the right to request a hearing in case of denial.

Key Requirements:

  • HHSC may deny a license or renewal if any person associated with the application is subject to denial as per Chapter 560, substantially fails to comply with requirements, aids in substantial violation, fails to provide required information, knowingly provides false or fraudulent information, or fails to pay due fees and taxes.
  • The denial can also be based on an applicant’s history of operation of a decertified facility, federal or state sanctions, unsatisfied final judgments, eviction, or suspension of a license to operate a similar facility in any state during the five-year period preceding the application.
  • HHSC may consider exculpatory information and grant a license if it finds the person able to comply with the rules.
  • A license will not be issued to an applicant with a history of revocation of a license, debarment or exclusion from Medicare or Medicaid programs, or a court injunction prohibiting operation of a facility during the preceding five years.
  • Only final actions, where administrative and judicial remedies are exhausted, are considered for denial; however, all actions, pending or final, must be disclosed.
  • The overall record of compliance will be examined for applicants owning multiple facilities. A poor overall record will not preclude the renewal of licenses of individual facilities with satisfactory records.
  • If HHSC denies a license or refuses to issue a renewal, the applicant or license holder may request a hearing in accordance with Texas Government Code, Chapter 2001, and 1 TAC Chapter 357, Subchapter I.

Rule §559.219 – License Fees

Overview:

Rule §559.219 specifies the license fees associated with obtaining and renewing a three-year license for individualized skills and socialization providers. It details the fees for different license durations, conditions under which these fees are to be paid, and the imposition of a late fee for delayed renewal applications.

Key Requirements:

  • The license fee for a three-year license is set at $75.
  • For licenses issued according to §559.205(k), the fees are structured as follows:
    • $25 for a one-year license.
    • $50 for a two-year license.
    • $75 for a three-year license.
  • These fees must be paid with each initial application, change of ownership application, and application for renewal of the license, with payments made as defined in the online licensure portal.
  • Applicants for license renewal who submit their applications during the 45-day period ending on the date the current license expires are required to pay a late fee of $25 in addition to the standard license fee.

Rule §559.221 – Relocation

Overview:

Rule §559.221 outlines the requirements and procedures that a license holder must follow if they intend to relocate to another on-site individualized skills and socialization location. It specifies the necessity for approval from the Texas Health and Human Services Commission (HHSC), the submission of a complete application, and the payment of the required fee before relocation. The rule also defines the effective date of the license after relocation and the ongoing obligations of the license holder during the transition.

Key Requirements:

  • A license holder is prohibited from relocating to another on-site individualized skills and socialization location without obtaining approval from HHSC.
  • To seek approval for relocation, the license holder must submit a complete application along with the fee required under §559.219 to HHSC prior to the relocation.
  • The effective date of the license, post-relocation, will be the date on which HHSC approves the relocation.
  • Until the date of relocation, the license holder is obligated to maintain the license at the current on-site individualized skills and socialization location and continue to comply with all operational requirements.

Rule §559.223 – Voluntary Closure

Overview:

Rule §559.223 sets forth the procedures an individualized skills and socialization provider must adhere to in the event of a voluntary closure of operations. The rule mandates that the Texas Health and Human Services Commission (HHSC) must be notified in writing at least five days prior to the permanent closure. The notice must include specific details such as the date of closure, reason for closing, location of individual records (both active and inactive), and the name and address of the individual designated as the record custodian.

Key Requirements:

  • In the case of voluntary closure, the provider is required to notify HHSC in writing at least five days before the permanent cessation of operations.
  • The written notice to HHSC must contain the following details:
    • The date on which the operation will permanently close.
    • The specific reason for the closure.
    • The location of both active and inactive individual records.
    • The name and address of the custodian assigned to manage the individual records.

Rule §559.225 – General Requirements

Overview:

Rule §559.225 outlines the comprehensive general requirements that an individualized skills and socialization provider must adhere to. These include compliance with various state and federal codes, conducting employee background checks, protecting individuals’ rights, maintaining confidentiality, reporting abuse, neglect, exploitation, and critical incidents, and displaying essential information prominently at the provider’s location.

Key Requirements:

  • Compliance and Background Checks:
    • The provider must comply with the provisions of Texas Health and Safety Code, Chapter 250, related to background checks.
    • Before employing any person, the provider must search various registries including the employee misconduct registry (EMR), nurse aide registry (NAR), medication aide registry (MAR), US Department of Health and Human Services List of Excluded Individuals and Entities (USLEIE), and the List of Excluded Individuals and Entities (LEIE) maintained by HHSC Office of Inspector General.
    • Persons listed as unemployable or with revoked/suspended status in the aforementioned registries must not be employed.
  • Protection of Individual’s Rights:
    • The provider must provide individuals who are 55 years of age or older with a written list of their rights as outlined under the Texas Human Resource Code (HRC), Chapter 102.
    • Policies and procedures must be created to protect and promote the rights of the individual, including control over schedule and activities, access to food and visitors, and physical access to the building.
  • Reporting and Confidentiality:
    • The provider is mandated to report abuse, neglect, exploitation, and critical incidents according to §559.241 of this subchapter.
    • Policies and procedures must be developed for creating and maintaining incident reports.
    • The confidentiality of individual records and other related information must be ensured.
    • Individuals must be informed orally and in writing about their rights, responsibilities, and grievance procedures in a language they understand.
  • Display of Information:
    • The provider must prominently display the license, a sign describing complaint procedures, a notice stating that survey and related reports are available, a copy of the most recent survey report, information outlining hours of operation and activities offered, and emergency telephone numbers, including the abuse hotline number.
  • Annual Search and Compliance:
    • In addition to initial searches, the provider must conduct an annual search of the NAR, MAR, and EMR to determine employability.
    • Results of these searches must be kept in the employee’s personnel file and made available to HHSC upon request.
    • The provider must comply with all relevant federal and state standards and all applicable provisions of the Texas Human Resource Code, Chapter 102.

Rule §559.227 – Program Requirements

Overview:

Rule §559.227 outlines the specific program requirements for individualized skills and socialization providers, focusing on staff qualifications, staffing ratios, staff responsibilities, service delivery, training, medication management, handling accidents, injuries, acute illnesses, and infection control.

Key Requirements:

  • Staff Qualifications:
    • The provider must employ an administrator who is at least 18 years old, has a high school diploma or equivalent, or demonstrates competence through a proficiency evaluation.
    • A service provider who transports individuals must have a valid driver’s license and use a vehicle insured according to state law.
  • Staffing:
    • The provider must ensure appropriate staffing ratios and that sufficient staff are on duty to ensure the health, safety, and supervision of individuals, in accordance with their individual plans of care.
  • Staff Responsibilities:
    • The administrator manages services, ensures staff training, supervises staff, and maintains records.
    • A service provider delivers services, assists with recreational activities, and provides protective supervision.
  • Service Delivery:
    • On-site and off-site individualized skills and socialization must be made available, provided in appropriate settings, and not in prohibited settings.
    • Services must be provided in accordance with individual’s plans and without imposing additional requirements on the individual.
  • Training:
    • Initial training for service providers includes fire, disaster, CPR, first aid, infection control, population overview, and identification and reporting of abuse, neglect, or exploitation.
    • Ongoing training ensures maintenance of certifications and knowledge of emergency response and infection control.
  • Medications:
    • Assistance with medication administration must be provided as per delegation by a registered nurse or a physician.
    • Medication details must be recorded, unusual reactions reported, and missed doses documented.
    • Medications must be stored securely and separately, with special provisions for controlled substances.
  • Accidents, Injury, or Acute Illness:
    • First aid supplies must be available on-site and off-site.
    • In case of an accident, injury, or acute illness requiring emergency care, appropriate arrangements must be made, immediate notification to the program provider is required, and documentation must be maintained.
  • Infection Control:
    • The provider must create and enforce written policies and procedures for infection control to ensure staff compliance with state law, the Occupational Safety and Health Administration, and the Centers for Disease Control and Prevention.

Rule §559.229 – Environment and Emergency Response Plan

Overview:

Rule §559.229 delineates the criteria and obligations for individualized skills and socialization providers to formulate, enact, and sustain an Emergency Response Plan. This rule comprehensively defines the elements of the plan, focusing on a variety of emergency situations, and underscores the importance of staff training, effective communication, adherence to facility standards, and compliance with applicable laws and regulations for individuals with disabilities.

Key Requirements:

  • Development and Maintenance of Plan:
    • Providers are mandated to develop, implement, and maintain a written Emergency Response Plan.
    • The plan must be regularly evaluated and revised, especially post-emergency and at a minimum, annually.
    • Accessibility of the plan to all staff is imperative.
  • Definitions and Risk Assessment:
    • Clear definitions, particularly of “emergency situation,” are essential.
    • The plan must incorporate a risk assessment of potential internal and external emergencies, considering the provider’s operations and geographical locale.
  • Core Functions of Emergency Management:
    • Addressing the eight core functions of emergency management in the plan is crucial. These include direction and control, warnings, emergency alerts, communication, sheltering-in-place, evacuation, transportation, health and medical needs, and resource management.
  • Training and Drills:
    • Staff must be adequately trained regarding their responsibilities under the plan, with retraining occurring annually or when responsibilities change.
    • Providers offering on-site services must conduct unannounced drills for various emergencies and adhere to specific fire drill requirements.
  • Facility Requirements and Compliance:
    • Facilities must be equipped with accessible and unobstructed exterior doors, have two means of escape, and meet fire safety standards.
    • Compliance with state laws, local ordinances, and regulations related to individuals with disabilities, including ADA standards, is mandatory.
  • Communication and Reporting:
    • Establishing communication protocols during emergencies and fulfilling reporting obligations to HHSC and other relevant entities are vital.
  • Transportation and Health Needs:
    • The plan should outline procedures for transportation and ensure the health and medical needs of individuals are met during emergencies.
  • Resource Management:
    • Adequate resource management to ensure individuals have appropriate access to resources during an emergency is essential.

Rule §559.231 – Surveys and Visits

Overview:

Rule §559.231 stipulates the conditions and procedures under which the Texas Health and Human Services Commission (HHSC) may enter the premises of an individualized skills and socialization provider to conduct surveys, follow-up visits, complaint investigations, and other necessary visits. The rule outlines the circumstances for both announced and unannounced visits and delineates the provider’s obligation to cooperate with HHSC by providing access to relevant documents and records.

Key Requirements:

  • HHSC Authority and Visit Types:
    • HHSC has the authority to enter the premises of a provider to conduct various types of surveys and investigations.
    • These include initial and renewal surveys, complaint investigations, abuse or neglect investigations, and routine or non-routine visits.
    • Most visits will be unannounced, and any exceptions must be justified.
  • Desk Reviews and On-Site Surveys:
    • HHSC may conduct surveys or investigations as desk reviews, except for the on-site components of initial surveys and complaint investigations.
    • Any person can request a survey by notifying HHSC of an alleged violation, and an on-site survey will be performed within 30 days unless the complaint is found to be frivolous.
  • Anonymous Complaints and Response:
    • HHSC receives and investigates anonymous complaints and will respond in writing to the complainant if a mailing address is provided.
    • The source of the complaint remains confidential.
  • Access to Records and Documents:
    • Providers must grant HHSC access to all books, records, and documents upon request.
    • HHSC is authorized to photocopy documents, photograph individuals, and use recording devices to preserve evidence.
    • Providers must furnish a list of all individuals served and the corresponding waiver program or funding source upon request.
    • Providers may charge HHSC for copies at a rate not exceeding the rate charged by HHSC, and they are responsible for the copying procedure.
  • Privacy and Confidentiality:
    • HHSC protects the copies for privacy and confidentiality in accordance with medical records practice, state laws, and HHSC policy.
  • Inspection Frequency:
    • HHSC inspects a provider at least once every two years after the initial survey.

Rule §559.233 – Determinations and Actions Pursuant to Surveys

Overview:

Rule §559.233 delineates the procedures that the Texas Health and Human Services Commission (HHSC) follows to assess compliance with licensing rules by an individualized skills and socialization provider. It outlines the process of identifying and communicating violations, conducting exit conferences, and providing summaries of findings. The rule also stipulates the requirements for submitting plans of correction and the provisions for informal dispute resolution (IDR) at both regional and state levels.

Key Requirements:

  • Compliance Determination and Violation Listing:
    • HHSC determines if a provider is in compliance with licensing rules.
    • Violations are listed on designated forms and discussed in an exit conference with the provider’s management.
  • Communication of Additional Violations:
    • If additional violations are cited after the initial exit conference, they are communicated to the provider within 10 working days.
  • Summary of Findings:
    • HHSC provides a clear, concise, nontechnical summary of each survey and complaint investigation, outlining significant violations without disclosing identifying information.
  • Plan of Correction:
    • The provider must submit an acceptable plan of correction to the HHSC Regulatory Services regional director within 10 working days of receiving the final statement of violations.
    • The plan of correction must address how the corrective action will be implemented, identify potentially affected individuals, ensure non-recurrence of the violation, monitor the corrective action, and specify the completion date.
  • Informal Dispute Resolution (IDR):
    • Providers are entitled to an IDR at the regional level for all violations and at either the regional or state office level for violations resulting in adverse action.
    • A written request and supporting documentation must be submitted within 10 days after receiving the official statement of violations.
    • The IDR process is completed within 30 days of receiving a request, and any violations deemed invalid will be noted in HHSC’s records.

Rule §559.235 – Referrals to the Attorney General

Overview:

Rule §559.235 articulates the conditions under which the Texas Health and Human Services Commission (HHSC) may refer an individualized skills and socialization provider to the attorney general. The attorney general can then petition a district court for a temporary restraining order or an injunction if a violation or threatened violation poses a threat to the health and safety of an individual.

Key Requirements:

  • HHSC has the authority to refer a provider to the attorney general under specific circumstances.
  • The attorney general may seek a temporary restraining order if there is a reasonable belief that a violation or threatened violation creates an immediate threat to the health and safety of an individual.
  • The attorney general may also seek an injunction if a violation or threatened violation is believed to pose a threat to the health and safety of an individual.

Rule §559.237 – Procedures for Inspection of Public Records

Overview:

Rule §559.237 sets forth the procedures for the inspection of public records in accordance with the Texas Government Code, Chapter 552. It details the application process for inspecting records, the responsibilities of the Texas Health and Human Services Commission (HHSC) Regulatory Services Division, the criteria for record requests, and the exceptions to public access. The rule also outlines the conditions under which HHSC may charge fees for inspecting or copying records.

Key Requirements:

  • The application for inspection of public records must be made to HHSC Long-term Care Regulation, Regulatory Services Division, with the requester identifying themselves and specifying the records requested.
  • The requester must give reasonable prior notice of the time for inspection or copying of records.
  • HHSC will provide the requested records as soon as possible, considering if the records are in active use, in storage, or if time is needed for de-identification or preparation.
  • Original records may be inspected or copied at HHSC offices but cannot be removed.
  • Certain records, including incomplete reports, names and personal information, defamatory information, information identifying complainants or informants, itineraries of surveys, and others specified by the Texas Government Code, Chapter 552, are confidential.
  • HHSC may charge for copies of records upon request, with charges for production, postage, and applicable sales taxes to be borne by the requester. Each request involving more than one long-term care facility will be considered a separate request.

Rule §559.239 – Definitions of Abuse, Neglect, and Exploitation

Overview:

Rule §559.239 provides the definitions for terms “abuse,” “neglect,” and “exploitation” within the context of this subchapter. The rule refers to the definitions found in Chapter 48 of the Texas Human Resources Code and §559.2 of this chapter for clarity on the meanings of these terms.

Key Requirements:

  • The definitions of “abuse,” “neglect,” and “exploitation” for the purposes of this subchapter are to be sourced from Chapter 48 of the Texas Human Resources Code and §559.2 of this chapter.

Rule §559.243 – HHSC Complaint Investigation

Overview:

Rule §559.243 clarifies the process by which the Texas Health and Human Services Commission (HHSC) handles and investigates complaints. It defines what constitutes a complaint and outlines the conditions under which HHSC investigates, notifying the individualized skills and socialization provider of the complaint summary. The rule also details the referral process for complaints not meeting specific criteria and the subsequent actions taken depending on the nature of the verified complaints.

Key Requirements:

  • A complaint is defined as any allegation received by HHSC regarding abuse, neglect, exploitation, or violation of state standards.
  • HHSC is obliged to notify the individualized skills and socialization provider of the received complaint and provide a summary, without disclosing the source of the complaint.
  • HHSC investigates complaints when the victim is an individual receiving services from the provider, and the incident meets certain criteria related to location, supervision, and affiliation with the provider.
  • Complaints not meeting the specified criteria are to be referred to the Texas Department of Family and Protective Services.
  • The investigation process includes visiting the provider and consulting with knowledgeable persons. If denied admission for investigation, HHSC may seek a court order for admission, possibly accompanied by a peace officer.
  • In cases confirmed as physical abuse, the investigation report must be submitted to the appropriate law enforcement agency.
  • For cases of abuse, neglect, or exploitation involving an individual with a guardian, the report must be submitted to the overseeing probate or county court.

Rule §559.245 – Confidentiality

Overview:

Rule §559.245 delineates the confidentiality protocols surrounding the reports, records, communications, and working papers used or developed by the Texas Health and Human Services Commission (HHSC) during an investigation. The rule specifies the conditions under which confidential information can be released, the entities to which it can be disclosed, and the procedures for de-identifying reports for public release. It also outlines the procedure for individuals or their legal representatives to request access to confidential information relating to the final report.

Key Requirements:

  • All materials used or developed by HHSC in an investigation are deemed confidential.
  • The final written investigation report may be furnished to the district attorney and appropriate law enforcement agencies if it reveals criminal abuse. It can also be shared with other state agencies or entities to facilitate the provision of services to persons with disabilities or the elderly.
  • De-identified final written investigation reports can be released to the public upon request.
  • The reporter and the individualized skills and socialization provider will be informed of the results of HHSC’s investigation, irrespective of the conclusion reached.
  • Upon written request, the person who is the subject of the report or their legal representative can obtain otherwise confidential information relating to the final report, with necessary precautions taken to protect the confidentiality of the reporter’s identity and any other person whose safety or welfare may be endangered by disclosure.

Rule §559.247 – Nonemergency Suspension

Overview:

Rule §559.247 establishes the conditions and procedures under which the Texas Health and Human Services Commission (HHSC) may suspend a license of an individualized skills and socialization provider. This rule is enacted when a violation of licensure rules by the provider poses a threat to the health and safety of individuals. It details the notification process, the provider’s right to show compliance, the appeal process, the duration of suspension, and the consequences of suspension including removal from HHSC’s Day Activity and Health Services (DAHS) directory.

Key Requirements:

  • HHSC may suspend a provider’s license if the provider’s violation of licensure rules threatens the health and safety of individuals.
  • License suspension can occur alongside any other enforcement provision available to HHSC.
  • The provider will be notified by certified mail of HHSC’s intent to suspend the license and has the opportunity to show compliance with all requirements of law for the retention of the license.
  • If the license is suspended, the provider can request a formal appeal following HHSC’s formal hearing procedures. The suspension takes effect when the deadline for appeal passes unless appealed.
  • The suspension remains in effect until HHSC determines that the reason for suspension no longer exists and may last no longer than the term of the license. An on-site investigation will be conducted before making a determination.
  • A provider with a suspended license will be removed from HHSC’s DAHS directory during the suspension.

Rule §559.249 – Revocation

Overview:

Rule §559.249 delineates the circumstances under which the Texas Health and Human Services Commission (HHSC) can revoke the license of an individualized skills and socialization provider. The rule details the grounds for revocation, including violation of the Texas Human Resources Code, Chapter 103, and providing false or misleading statements in the application. It also outlines the notification process, the opportunity for the provider to show compliance, the appeal procedures, and the consequences of license revocation, including removal from HHSC’s Day Activity and Health Services (DAHS) directory.

Key Requirements:

  • HHSC has the authority to revoke a provider’s license if there is a violation of the Texas Human Resources Code, Chapter 103.
  • HHSC may also revoke a license if the provider submitted false or misleading statements in the application, used evasive means to obtain the license, concealed a material fact, or failed to disclose required information.
  • License revocation can occur simultaneously with any other enforcement provision available to HHSC.
  • The provider will be notified by certified mail of HHSC’s intent to revoke the license and has the opportunity to show compliance with all legal requirements for the retention of the license.
  • If the license is revoked, the provider can request a formal appeal following HHSC’s formal hearing procedures. The status of the license holder is preserved until the final disposition of the contested matter if appealed.
  • A provider whose license is revoked will be removed from HHSC’s DAHS directory.

Rule §559.251 – Emergency Suspension and Closing Order

Overview:

Rule §559.251 sets forth the conditions and procedures under which the Texas Health and Human Services Commission (HHSC) can impose an emergency suspension of an individualized skills and socialization provider’s license or order an immediate partial closure of the facility. This action is warranted when a violation of licensure rules poses an immediate threat to the health and safety of an individual. The rule outlines the immediate effectiveness of such an order, its validity duration, the provider’s right to request a formal administrative hearing, and the removal of the provider from HHSC’s Day Activity and Health Services (DAHS) directory during the suspension.

Key Requirements:

  • HHSC can impose an emergency suspension of a provider’s license or order an immediate partial closure of the facility if a violation of licensure rules creates an immediate threat to the health and safety of an individual.
  • The order for suspension or partial closure is immediately effective upon the license holder receiving a hand-delivered written notice or on a later date specified in the order.
  • The validity of such an order is ten days from its effective date.
  • The licensee is entitled to request a formal administrative hearing following HHSC’s formal hearing procedures, but this request does not suspend the effectiveness of the order.
  • A provider under effective emergency suspension will be removed from HHSC’s DAHS directory.

Closing Thoughts

Understanding the Texas Administrative Code & the HCS Program 3 May 2024

Whew! Exploring the Texas Administrative Code (TAC) and how it shapes the HCS Program has been a real adventure! We’ve taken a look at the main rules and learned about the important parts that help people in our communities. Now, you’ve got a better idea of how these rules work and why they matter. But don’t forget, the rules can change, so it’s always good to keep learning and ask for help if you need it. Thanks for joining on this journey through Texas rules, and here’s to making a difference in our communities!

About Mary Jenkins

Mary Jenkins has over 25 years experience helping individuals with IDD live and thrive in their community. She founded Above and Beyond Caring in 2007 to provide Texas HCS services in the Texas Gulf Coast area. She is also the Director of the Community Inclusion Project, a 501c3 nonprofit dedicated to ensuring all individuals have access to their community. She is passionate about her work and believes that everyone deserves the opportunity to be a part of, and contribute to, the world around them. Mary is a tireless advocate who is passionate about helping individuals with IDD live fuller, more meaningful lives.

Understanding the Texas Administrative Code & the HCS Program 5 May 2024

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