Texas Register August 12, 2022 Volume: 47 Number: 32

Texas Register Table of Contents

1 Texas Health and Human Services Commission
- - 1.0.1 Proposed Rules Re:
  - 1.0.2 In Addition Re:
    - 1.0.2.1 Notice of Public Hearing on Proposed Amendments to Program Rules for School Health and Related Services
    - 1.0.2.2 Updated Public Notice: Inclusion of American Rescue Plan Act of 2021 Into CHIP State Plan
2 Texas Optometry Board
- - 2.0.1 Adopted Rules Re:
    - 2.0.1.1 New 22 TAC §273.17, requiring that applicants for licensure and renewal of licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course beginning in January 1, 2023.
  - 2.0.2 Proposed Rule Reviews Re:
    - 2.0.2.1 Proposed review of Chapter 280 Therapeutic Optometry

Texas Health and Human Services Commission

Proposed Rules Re:

New 26 TAC §§260.501, 260.503, 260.505, 260.507, 260.509, 260.511, 260.513, 260.515, 260.517, concerning individualized skills and socializations for Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC).

CHAPTER 260. DEAF BLIND WITH MULTIPLE DISABILITIES (DBMD) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
SUBCHAPTER I. INDIVIDUALIZED SKILLS AND SOCIALIZATION
26 TAC §§260.501, 260.503, 260.505, 260.507, 260.509, 260.511, 260.513, 260.515, 260.517

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §260.501, concerning Definitions; §260.503, concerning Description of Individualized Skills and Socialization; §260.505, concerning Provision of Individualized Skills and Socialization; §260.507, concerning Staffing Ratios; §260.509, concerning Discontinuation of Day Habilitation; §260.511, concerning Including Individualized Skills and Socialization on an IPC; §260.513, concerning Service Provider Qualifications; §260.515, concerning Contracting to Provide Individualized Skills and Socialization; and §260.517, concerning Program Provider Reimbursement for Individualized Skills and Socialization, in new Chapter 260, Subchapter I, Individualized Skills and Socialization.

BACKGROUND AND JUSTIFICATION

Title 42, Code of Federal Regulations (CFR), §441.301(c)(4)(i) – (v), require home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated in and supporting full access of individuals to the greater community. The Centers for Medicare & Medicaid Services is requiring that states be in compliance with these regulations by March 17, 2023.

The 2020-21 General Appropriations Act (GAA), House Bill 1, 86th Legislature, Regular Session, 2019 (Article II, Health and Human Services Commission, Rider 21) required HHSC to develop a plan to replace day habilitation in its Medicaid §1915(c) waiver programs for individuals with intellectual and developmental disabilities with more integrated services that maximize participation and integration of the individuals in the community.

In accordance with Rider 21, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) Programs with individualized skills and socialization. The plan included proposed ratios for service providers of individualized skills and socialization to individuals receiving individualized skills and socialization to help ensure that individuals receiving the service have adequate support to achieve their goals.

The 2022-2023 GAA, Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the HCS, TxHmL, and DBMD Programs.

The proposed rules implement the plan required by Rider 21 to replace day habilitation with individualized skills and socialization in the DBMD Program and will ensure that HHSC is in compliance with 42 CFR §441.301(c)(4)(i) – (v) by March 17, 2023.

The proposed rules describe the two types of individualized skills and socialization, on-site individualized skills and socialization and off-site individualized skills and socialization and require that both types be provided by an individualized skills and socialization provider.

The rules requiring a provider of individualized skills and socialization to be licensed in accordance with Texas Human Resources Code Chapter 103 are being proposed in 26 TAC Chapter 559 and published elsewhere in this issue of the Texas Register. The rules will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization.

The proposed rules describe the requirements for an individualized skills and socialization provider including a requirement that both on-site and off-site individualized skills and socialization be made available to individuals and that staffing ratios are met.

The proposed rules also discontinue day habilitation effective March 1, 2023.

The rules implementing individualized skills and socialization in the HCS and TxHmL Programs are being proposed in Texas Administrative Code (TAC) Title 26, Chapter 263, Subchapter L and in 26 TAC Chapter 262, Subchapter J, and published elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §260.501, Definitions, defines the terms used in the new subchapter including “individualized skills and socialization provider” which is defined as a legal entity licensed in accordance with Texas Human Resources Code Chapter 103.
Proposed new §260.503, Description of Individualized Skills and Socialization, provides a description of on-site and off-site individualized skills and socialization, the two types of individualized skills and socialization. The proposed new rule requires individualized skills and socialization to be provided by an individualized skills and socialization provider and that such provider be the program provider or a contractor of the program provider. The proposed new rule also describes where on-site and off-site individualized skills and socialization are provided.
Proposed new §260.505, Provision of Individualized Skills and Socialization, describes requirements for providing individualized skills and socialization, including that an individualized skills and socialization provider make both on-site and off-site individualized skills and socialization available to an individual and that such provider allow an individual to receive off-site individualized skills and socialization without requiring the individual to take a skills test or meet other requirements to receive off-site individualized skills and socialization. The proposed new rule also requires an individualized skills and socialization provider to document an individual’s or legally authorized representative’s decision for the individual not to participate in an activity the individual scheduled for on-site or off-site individualized skills and socialization.
Proposed new §260.507, Staffing Ratios, describes the required ratios for on-site and off-site individualized skills and socialization of service providers to individuals in the DBMD Program and other persons receiving individualized skills and socialization or a similar service. The ratios in the proposed new rule include other persons receiving individualized skills and socialization in the HCS Program and the TxHmL Program, and other persons receiving a similar service, to ensure that the ratios of service providers to individuals in the DBMD Program receiving on-site and off-site individualized skills and socialization are maintained. If a ratio described in this section includes individuals enrolled in other waiver programs receiving individualized skills and socialization or persons receiving a similar service, the proposed new rule requires that the ratio be the ratio required by §260.507(a). The proposed new rule requires a service provider of individualized skills and socialization assigned to the individuals and other persons described in a ratio to provide services only to the individuals and other persons represented in the ratio.
Proposed new §260.509, Discontinuation of Day Habilitation, provides that day habilitation is not a service in the DBMD Program effective March 1, 2023 to ensure HHSC’s compliance with 42 CFR §441.301(c)(4) before the deadline established by the Centers for Medicare & Medicaid Services.
Proposed new §260.511, Including Individualized Skills and Socialization on an IPC, requires a program provider to ensure a case manager includes individualized skills and socialization on an individual plan of care (IPC) in accordance with the rules governing the DBMD Program. The proposed new rule requires a case manager to ensure that an enrollment IPC or renewal IPC effective on or after March 1, 2023 does not include day habilitation and that a revised IPC with an effective date during the period of March 1, 2023 and February 29, 2024 includes only the amount of day habilitation that the program provider provided to the individual before March 1, 2023. The proposed new rule also requires that if an individual or the individual’s LAR wants the individual to receive on-site or off-site individualized skills and socialization, but not both, the case manager documents the decision in the individual’s individual program plan.
Proposed new §260.513, Service Provider Qualifications, describes the qualifications for a service provider of individualized skills and socialization.
Proposed new §260.515, Contracting to Provide Individualized Skills and Socialization, requires a program provider to ensure that an individualized skills and socialization provider with which it contracts complies with certain sections of the subchapter.
Proposed new §260.517, Program Provider Reimbursement for Individualized Skills and Socialization, provides that HHSC pays a program provider for on-site and off-site individualized skills and socialization in accordance with the reimbursement rate. The proposed new rule prohibits a program provider from submitting a claim for individualized skills and socialization provided during the time an individual’s services are suspended or after services are terminated, except that the program provider may submit a claim for the first day of the individual’s suspension or termination. The proposed new rule describes the circumstances under which HHSC does not pay or recoups payment from a program provider for individualized skills and socialization. The proposed new rule provides that HHSC does not pay or recoups payment from a program provider for day habilitation provided on or after March 1, 2023. The proposed new rule provides that HHSC conducts contracts and fiscal monitoring in accordance with rules governing the DBMD Program to determine whether a program provider is in compliance with the new subchapter.

New 26 TAC §§262.901, 262.903, 262.905, 262.907, 262.909, 262.911, 262.913, 262.915, 262.917, 262.919, 262.921, 262.923, 262.925, 262.927, concerning individualized skills and socializations for Texas Home Living (TxHmL).

CHAPTER 262. TEXAS HOME LIVING (TxHmL) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
SUBCHAPTER J. INDIVIDUALIZED SKILLS AND SOCIALIZATION
26 TAC §§262.901, 262.903, 262.905, 262.907, 262.909, 262.911, 262.913, 262.915, 262.917, 262.919, 262.921, 262.923, 262.925, 262.927

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §262.901, concerning Definitions; §262.903, concerning Types of Individualized Skills and Socialization; §262.905, concerning Description of On-Site and Off-Site Individualized Skills and Socialization; §262.907, concerning Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization; §262.909, concerning Exceptions to Certain Requirements During Declaration of Disaster; §262.911, concerning Provision of On-Site and Off-Site Individualized Skills and Socialization; §262.913, concerning Provision of In-Home Individualized Skills and Socialization; §262.915, concerning Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §262.917, concerning Staffing Ratios for Off-Site Individualized Skills and Socialization; §262.919, concerning Discontinuation of Day Habilitation; §262.921, concerning Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC; §262.923, concerning Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §262.925, concerning Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; and §262.927, concerning Enhanced Staffing Rate, in Texas Administrative Code (TAC), new Chapter 262, Subchapter J, Individualized Skills and Socialization.

BACKGROUND AND JUSTIFICATION

Title 42, Code of Federal Regulations (CFR), §441.301(c)(4)(i) – (v), require home and community based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated in and supporting full access of individuals to the greater community. The Centers for Medicare and Medicaid Services is requiring that states be in compliance with these regulations by March 17, 2023.

In accordance with Rider 21, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals.

The proposed rules implement the plan required by Rider 21 to replace day habilitation with individualized skills and socialization in the TxHmL Program and will ensure that HHSC is in compliance with 42 CFR §441.301(c)(4)(i) – (v) by March 17, 2023.

The proposed rules describe the three types of individualized skills and socialization, on-site individualized skills and socialization, off-site individualized skills and socialization, and in-home individualized skills and socialization. The proposed rules require that on-site and off-site individualized skills and socialization be provided by an individualized skills and socialization provider.

The proposed rules include requirements for an individualized skills and socialization provider to make available both on-site and off-site individualized skills and socialization to individuals and meet staffing ratios based on levels of need for off-site individualized skills and socialization.

The proposed rules also include requirements for the provision of in-home individualized skills and socialization including criteria that must be met for an individual to receive the service and that the service must be provided in the residence of the individual receiving the service.

The proposed rules provide that HHSC may allow program providers to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. This provision is added to help ensure that providers are able to operate and provide services effectively during a disaster.

The proposed rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023.

The rules implementing individualized skills and socialization in the HCS and DBMD Programs are being proposed in 26 TAC Chapter 263, Subchapter L and in 26 TAC Chapter 260, Subchapter I, and published elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §262.901, Definitions, defines the terms used in the new subchapter including “individualized skills and socialization provider” which is defined as a legal entity licensed in accordance with Texas Human Resources Code Chapter 103.
Proposed new §262.903, Types of Individualize Skills and Socialization, identifies the three types of individualized skills and socialization.
Proposed new §262.905, Description of On-Site and Off-Site Individualized Skills and Socialization, provides a general description of on-site and off-site individualized skills and socialization. The proposed new rule also describes where on-site and off-site individualized skills and socialization are provided.
Proposed new §262.907, Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization, provides a general description of in-home individualized skills and socialization. The proposed new rule also describes the criteria that must be met for an individual to receive in-home individualized skills and socialization.
Proposed new §262.909, Exceptions to Certain Requirements During Declaration of Disaster, provides that HHSC may allow program providers and service coordinators to use one or more of the exceptions described in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. The rule provides that HHSC notifies program providers and local intellectual and developmental disability authorities if it allows an exception to be used and defines “disaster area.”
Proposed new §262.911, Provision of On-Site and Off-Site Individualized Skills and Socialization, describes requirements for providing on-site and off-site individualized skills and socialization, including that an individualized skills and socialization provider make both on-site and off-site individualized skills and socialization available to an individual and that such provider allow an individual to receive off-site individualized skills and socialization without requiring the individual to take a skills test or meet other requirements. The proposed new rule requires individualized skills and socialization to be provided by an individualized skills and socialization provider and that such provider be the program provider or a contractor of the program provider.
The proposed new rule also requires an individualized skills and socialization provider to document an individual’s or legally authorized representative’s decision for the individual not to participate in an activity the individual scheduled for on-site or off-site individualized skills and socialization.
Proposed new §262.913, Provision of In-Home Individualized Skills and Socialization, describes requirements for providing in-home individualized skills and socialization. The proposed new rule also describes documentation that a program provider must obtain before providing in-home individualized skills and socialization to an individual.
Proposed new §262.915, Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, establishes a combined service limit for on-site, off-site, and in-home individualized skills and socialization.
Proposed new §262.917, Staffing Ratios for Off-Site Individualized Skills and Socialization, describes the required ratios for off-site individualized skills and socialization of service providers to individuals in the TxHmL Program and other persons receiving off-site individualized skills and socialization or a similar service. The ratios in the proposed new rule include other persons receiving individualized skills and socialization in the DBMD Program and the HCS Program, and other persons receiving a similar service, to ensure that the ratios of service providers to individuals in the TxHmL Program receiving off-site individualized skills and socialization are maintained. If a ratio described in this section includes individuals with different LONs or other persons receiving off-site individualized skills and socialization or a similar service, the proposed new rule requires that the ratio be the lowest staff ratio required by §262.917 or other waiver program rules. The proposed new rule requires a service provider of off-site individualized skills and socialization assigned to the individuals and other persons described in a ratio to provide services only to the individuals and other persons represented in the ratio.
Proposed new §262.919, Discontinuation of Day Habilitation, provides that day habilitation, which includes in-home day habilitation, is not a service in the TxHmL Program effective March 1, 2023, to ensure HHSC’s compliance with 42 CFR §441.301(c)(4) before the deadline established by the Centers for Medicare & Medicaid Services.
Proposed new §262.921, Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC, describes requirements for service coordinators and program providers if an applicant wants to receive on-site, off-site, or in-home individualized skills and socialization, such as including the service on the applicant’s person-directed plan and initial individual plan of care (IPC) and developing an implementation plan for the service. The proposed new rule requires a service coordinator to ensure that an initial IPC effective on or after March 1, 2023 does not include day habilitation and requires a service coordinator to ensure that a renewal IPC effective on or after March 1, 2023, does not include day habilitation. The proposed new rule also requires a program provider or service coordinator to ensure that a revised IPC with an effective date during the period of March 1, 2023, and February 29, 2024 includes only the amount of day habilitation that the program provider provided to the individual before March 1, 2023.
Proposed new §262.923, Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, describes the qualifications for a service provider of on-site, off-site, or in-home individualized skills and socialization.
Proposed new §262.925, Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, provides that HHSC pays for on-site, off-site, and in-home individualized skills and socialization in accordance with the reimbursement rates for on-site, off-site, and in-home individualized skills and socialization regardless of the individual’s level of need. The proposed new rule provides that HHSC pays an approved enhanced staffing rate for off-site individualized skills and socialization for an individual. The proposed new rule prohibits a program provider from submitting a claim for on-site, off-site, or in-home individualized skills and socialization provided during the time an individual’s services are suspended or after services are terminated, except that the program provider may submit a claim for the first day of the individual’s suspension or termination. The proposed new rule describes the circumstances under which HHSC does not pay or recoups payment from a program provider for on-site, off-site, or in-home individualized skills and socialization. The proposed new rule provides that HHSC does not pay or recoups payment from a program provider for day habilitation provided on or after March 1, 2023. The proposed new rule provides that HHSC conducts provider fiscal compliance reviews to determine whether a program provider is in compliance with the new subchapter.
Proposed new §262.927, Enhanced Staffing Rate, allows a program provider to request the enhanced staffing rate for off-site individualized skills and socialization for an individual. The proposed rule requires a service coordinator to request the enhanced staffing rate for off-site individualized skills and socialization for an individual who receives off-site individualized skills and socialization through the consumer directed services (CDS) option if the CDS employer asks the service coordinator to request the enhanced staffing rate. The proposed rule also describes how a program provider and service coordinator make such a request. The proposed new rule provides that HHSC approves a request for the enhanced staffing rate if the documentation submitted to HHSC demonstrates that to participate in off-site individualized skills and socialization, the individual requires more service provider support than the individual would typically receive. The proposed new rule provides that HHSC may review an approved enhanced staffing rate at any time to determine if it is appropriate and notifies a program provider or service coordinator through the HHSC data system when an enhanced staffing rate is approved or denied. The proposed new rule requires a service coordinator to notify the CDS employer and financial management services agency of HHSC’s approval or denial of the enhanced staffing rate. The proposed new rule provides that a program provider may request an administrative hearing if HHSC denies a request for the enhanced staffing rate.

New 26 TAC §§263.2001, 263.2003, 263.2005, 263.2007, 263.2009, 263.2011, 263.2013, 263.2015, 263.2017, 263.2019, 263.2021, 263.2023, 263.2025, 263.2027, concerning individualized skills and socializations for Home and Community-Based Services (HCS).

CHAPTER 263. HOME AND COMMUNITY-BASED SERVICES (HCS) PROGRAM AND COMMUNITY FIRST CHOICE (CFC)
SUBCHAPTER L. INDIVIDUALIZED SKILLS AND SOCIALIZATION

26 TAC §§263.2001, 263.2003, 263.2005, 263.2007, 263.2009, 263.2011, 263.2013, 263.2015, 263.2017, 263.2019, 263.2021, 263.2023, 263.2025, 263.2027

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §263.2001, concerning Definitions; §263.2003, concerning Types of Individualized Skills and Socialization; §263.2005, concerning Description of On-Site and Off-Site Individualized Skills and Socialization; §263.2007, concerning Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization; §263.2009, concerning Exceptions to Certain Requirements During Declaration of Disaster; §263.2011, concerning Provision of On-Site and Off-Site Individualized Skills and Socialization; §263.2013, concerning Provision of In-Home Individualized Skills and Socialization; §263.2015, concerning Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §263.2017, concerning Staffing Ratios for Off-Site Individualized Skills and Socialization;§ 263.2019, concerning Discontinuation of Day Habilitation; §263.2021, concerning Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC; §263.2023, concerning Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §263.2025, concerning Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; and §263.2027, concerning Enhanced Staffing Rate, in Texas Administrative Code (TAC), new Chapter 263, Subchapter L, Individualized Skills and Socialization.

BACKGROUND AND JUSTIFICATION

In accordance with Rider 21, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals.

The proposed rules implement the plan required by Rider 21 to replace day habilitation with individualized skills and socialization in the HCS Program and will ensure that HHSC is in compliance with 42 CFR §441.301(c)(4)(i) – (v) by March 17, 2023.

The rules requiring a provider of individualized skills and socialization to be licensed in accordance with Texas Human Resources Code Chapter 103, are being proposed in 26 TAC Chapter 559 and published elsewhere in this issue of the Texas Register. The rules in Chapter 559 will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization.

The proposed rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023.

The rules implementing individualized skills and socialization in the TxHmL and DBMD Programs are being proposed in 26 TAC Chapter 262 Subchapter J and in 26 TAC Chapter 260, Subchapter I and published elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §263.2001, Definitions, defines the terms used in the new subchapter including “individualized skills and socialization provider” which is defined as a legal entity licensed in accordance with Texas Human Resources Code Chapter 103.
Proposed new §263.2003, Types of Individualized Skills and Socialization, identifies the three types of individualized skills and socialization.
Proposed new §263.2005, Description of On-Site and Off-Site Individualized Skills and Socialization, provides a general description of on-site and off-site individualized skills and socialization. The proposed new rule also describes where on-site and off-site individualized skills and socialization are provided.
Proposed new §263.2007, Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization, provides a general description of in-home individualized skills and socialization. The proposed new rule also describes the criteria that must be met for an individual to receive in-home individualized skills and socialization.
Proposed new §263.2009, Exceptions to Certain Requirements During Declaration of Disaster, provides that HHSC may allow program providers and service coordinators to use one or more of the exceptions described in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. The rule provides that HHSC notifies program providers and local intellectual and developmental disability authorities if it allows an exception to be used and defines “disaster area.”
Proposed new §263.2011, Provision of On-Site and Off-Site Individualized Skills and Socialization, describes requirements for providing on-site and off-site individualized skills and socialization, including that an individualized skills and socialization provider make both on-site and off-site individualized skills and socialization available to an individual and that such provider allow an individual to receive off-site individualized skills and socialization without requiring the individual to take a skills test or meet other requirements to receive off-site individualized skills and socialization. The proposed new rule requires individualized skills and socialization to be provided by an individualized skills and socialization provider and that such provider be the program provider or a contractor of the program provider. The proposed new rule also requires an individualized skills and socialization provider to document an individual’s or legally authorized representative’s decision for the individual not to participate in an activity the individual scheduled for on-site or off-site individualized skills and socialization.
Proposed new §263.2013, Provision of In-Home Individualized Skills and Socialization, describes requirements for providing in-home individualized skills and socialization. The proposed new rule also describes documentation that a program provider must obtain before providing in-home individualized skills and socialization to an individual.
Proposed new §263.2015, Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, establishes a combined service limit for on-site, off-site, and in-home individualized skills and socialization.
Proposed new §263.2017, Staffing Ratios for Off-Site Individualized Skills and Socialization, describes the required ratios for off-site individualized skills and socialization of service providers to individuals in the HCS Program and other persons receiving off-site individualized skills and socialization or a similar service. The ratios in the proposed new rule include other persons receiving individualized skills and socialization in the DBMD Program and the TxHmL Program, and other persons receiving a similar service, to ensure that the ratios of service providers to individuals in the HCS Program receiving off-site individualized skills and socialization are maintained. If a ratio described in this section includes individuals with different levels of need (LONs) and other persons receiving off-site individualized skills and socialization or a similar service, the proposed new rule requires that the ratio be the lowest staff ratio required by §263.2017 or other waiver program rules. The proposed new rule requires a service provider of off-site individualized skills and socialization assigned to the individuals and other persons described in a ratio to provide services only to the individuals and other persons represented in the ratio.
Proposed new §263.2019, Discontinuation of Day Habilitation, provides that day habilitation, which includes in-home day habilitation, is not a service in the HCS Program effective March 1, 2023, to ensure HHSC’s compliance with 42 CFR §441.301(c)(4) before the deadline established by the Centers for Medicare & Medicaid Services.
Proposed new §263.2021, Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC, describes requirements for service coordinators and program providers if an applicant wants to receive on-site, off-site, or in-home individualized skills and socialization, such as including the service on the applicant’s person-directed plan and initial individual plan of care (IPC) and developing an implementation plan for the service. The proposed new rule requires a service coordinator to ensure that an initial IPC effective on or after March 1, 2023, does not include day habilitation and requires a program provider to ensure that a renewal IPC effective on or after March 1, 2023, does not include day habilitation. The proposed new rule also requires a program provider or service coordinator to ensure that a revised IPC with an effective date during the period of March 1, 2023, and February 29, 2024 includes only the amount of day habilitation that the program provider provided to the individual before March 1, 2023.
Proposed new §263.2023, Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, describes the qualifications for a service provider of on-site, off-site, or in-home individualized skills and socialization.
Proposed new §263.2025, Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, provides that HHSC pays for on-site, off-site, and in-home individualized skills and socialization in accordance with an individual’s LON and the reimbursement rates for on-site, off-site, and in-home individualized skills and socialization. The proposed new rule provides that HHSC pays an approved enhanced staffing rate for off-site individualized skills and socialization for an individual with a LON 1 or LON 5. The proposed new rule prohibits a program provider from submitting a claim for on-site, off-site, or in-home individualized skills and socialization provided during the time an individual’s services are suspended or after services are terminated, except that the program provider may submit a claim for the first day of the individual’s suspension or termination. The proposed new rule describes the circumstances under which HHSC does not pay or recoups payment from a program provider for on-site, off-site, or in-home individualized skills and socialization. The proposed new rule provides that HHSC does not pay or recoups payment from a program provider for day habilitation provided on or after March 1, 2023. The proposed new rule provides that HHSC conducts provider fiscal compliance reviews to determine whether a program provider is in compliance with the new subchapter.
Proposed new §263.2027, Enhanced Staffing Rate, provides that a program provider may request the enhanced staffing rate for off-site individualized skills and socialization for an individual with a LON 1 or LON 5 and describes how the request must be made. The proposed new rule provides that HHSC approves a request for the enhanced staffing rate if the documentation submitted to HHSC demonstrates that to participate in off-site individualized skills and socialization, the individual requires more service provider support than the individual would receive with the individual’s assigned LON. The proposed new rule provides that HHSC may review an approved enhanced staffing rate at any time to determine if it is appropriate and notifies a program provider through the HHSC data system when an enhanced staffing rate is approved or denied. The proposed new rule provides that a program provider may request an administrative hearing if HHSC denies a request for the enhanced staffing rate.

New 26 TAC §559.201, §559.203, regarding definitions and statutory authority for new individualized skills and socialization program for Deaf Blind with Multiple Disabilities, Home and Community-Based Services, and Texas Home Living.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER H. INDIVIDUALIZED SKILLS AND SOCIALIZATION PROVIDER REQUIREMENTS
26 TAC §559.201, §559.203

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §§559.201, 559.203, 559.205, 559.207, 559.209, 559.211, 559.213, 559.215, 559.217, 559.219, 559.221, 559.223, 559.225, 559.227, 559.229, 559.231, 559.233, 559.235, 559.237, 559.239, 559.241, 559.243, 559.245, 559.247, 559.249, and 559.251, in new Subchapter H, Individualized Skills and Socialization Provider Requirements.

BACKGROUND AND JUSTIFICATION

In 2014, the Centers for Medicare & Medicaid Services issued regulations governing the settings in which Medicaid home and community based services are provided. To comply with the regulations, HHSC will replace existing day habilitation services in the Deaf Blind with Multiple Disabilities, Home and Community-based Services, and Texas Home Living Medicaid waiver programs with a new service for individuals with intellectual and developmental disabilities. This new, more integrated service is called individualized skills and socialization.

The purpose of the proposal is to implement a new subcategory of day activity and health services (DAHS) licensure for individualized skills and socialization providers. This ensures individualized skills and socialization providers’ compliance without the cost and operational complexity involved in creating a new licensure type.

The proposal is necessary to comply with the 2020-2021 General Appropriations Act, 86th Legislature, Regular Session, 2019 (Article II, Health and Human Services Commission, Rider 21), which requires HHSC to establish the individualized skills and socialization provider as a new provider type to replace traditional day habilitation providers. HHSC proposes licensing those new providers under the current DAHS statute (Chapter 103, Texas Human Resources Code) and establishing a new subchapter of rules specific to these providers within existing DAHS rules.

SECTION-BY-SECTION SUMMARY

Proposed §559.201, Purpose, outlines statutory authority, applicability, and specific exclusions from applicability of the subchapter for DAHS facilities.
Proposed §559.203, Definitions, establishes definitions of terms specific to this subchapter.

New 26 TAC §§559.205, 559.207, 559.209, 559.211, 559.213, 559.215, 559.217, 559.219, 559.221, 559.223, pertaining to licensing of individualized skills and socialization providers.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER H. INDIVIDUALIZED SKILLS AND SOCIALIZATION PROVIDER REQUIREMENTS
26 TAC §§559.205, 559.207, 559.209, 559.211, 559.213, 559.215, 559.217, 559.219, 559.221, 559.223

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed §559.205, Criteria for Licensing, describes the license application process and requirements for applicants.
Proposed §559.207, Increase in Capacity, establishes that a license holder must obtain approval from HHSC and apply for a new license to increase the license holder’s capacity.
Proposed §559.209, Renewal Procedures and Qualifications, describes the license renewal process and what qualifies as a complete application.
Proposed §559.211, Change of Ownership and Notice of Changes, outlines the process for change of ownership and describes the actions the license holder and HHSC will take for this process.
Proposed §559.213, Time Periods for Processing Licensing Applications, outlines HHSC’s time periods for processing applications for a license and explains exceptions for good cause.
Proposed §559.215, Criteria for Denying a License or Renewal of a License, explains the criteria HHSC will follow regarding the denial of a license and establishes the applicant’s right to due process regarding the denial.
Proposed §559.217, Opportunity to Show Compliance, describes the process a license holder may take to show compliance prior to the revocation or suspension of a license by HHSC.
Proposed §559.219, License Fees, establishes the fee for a one-, two-, or three-year license. It also describes the circumstances under which HHSC will charge a late fee, and the cost of the late fee.
Proposed §559.221, Relocation, establishes that a license holder must obtain approval from HHSC and submit a new license application to relocate the operation to a new location.
Proposed §559.223, Voluntary Closure, outlines the process a license holder must follow if they choose to permanently close their operation.

New 26 TAC §§559.225, 559.227, 559.229, describing the requirements for an individualized skills and socialization program and an emergency response plan.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER H. INDIVIDUALIZED SKILLS AND SOCIALIZATION PROVIDER REQUIREMENTS
26 TAC §§559.225, 559.227, 559.229

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed §559.225, General Requirements, describes the general requirements an individualized skills and socialization prover must follow, including pre-employment screening and rights protection.
Proposed §559.227, Program Requirements, describes the detailed requirements individualized skills and socialization providers must follow in the implementation of their program services. This rule describes the staff qualifications for a director and service providers, staffing requirements, staff responsibilities, requirements for on-site and off-site service provision, initial and ongoing training requirements, medication administration and storage, and accident, injury, and infection control requirements.
Proposed §559.229, Emergency Response Plan, requires individualized skills and socialization providers to develop and implement an emergency response plan that includes the eight core functions of emergency management. It also requires training on the plan and conducting fire and evacuation drills.

New 26 TAC §§559.231, 559.233, 559.235, 559.237, 559.239, 559.241, 559.243, 559.245, 559.247, 559.249, 559.251, regarding inspections, reporting abuse, and investigations.

CHAPTER 559. DAY ACTIVITY AND HEALTH SERVICES REQUIREMENTS
SUBCHAPTER H. INDIVIDUALIZED SKILLS AND SOCIALIZATION PROVIDER REQUIREMENTS
26 TAC §§559.231, 559.233, 559.235, 559.237, 559.239, 559.241, 559.243, 559.245, 559.247, 559.249, 559.251

OVERVIEW

BACKGROUND AND JUSTIFICATION

SECTION-BY-SECTION SUMMARY

Proposed §559.231, Inspections, Surveys, and Visits, describes the process HHSC will follow for initial inspections and complaint investigations. This rule requires HHSC to inspect the individualized skills and socialization provider at least once every two years. This rule also requires the individualized skills and socialization provider to make its records available to HHSC upon request.
Proposed §559.233, Determinations and Actions Pursuant to Inspections, describes the process HHSC will follow after an inspection regarding potential violations and outlines the process the individualized skills and socialization provider will follow to submit a plan of correction or request an informal dispute resolution.
Proposed §559.235, Referrals to the Attorney General, establishes that HHSC may refer an individualized skills and socialization provider to the attorney general who may petition a district court for a temporary restraining order or injunction if HHSC believes that a violation creates an immediate threat to the health and safety of an individual.
Proposed §559.237, Procedures for Inspection of Public Records, describes the process for a requester and HHSC to follow regarding the inspection of public records in the custody of HHSC.
Proposed §559.239, Definitions of Abuse, Neglect, and Exploitation, establishes the definitions of abuse, neglect, and exploitation applicable to an individualized skills and socialization provider.
Proposed §559.241, Reporting Abuse, Neglect, Exploitation, or Critical Incidents, describes the requirements for reporting abuse, neglect, exploitation, or critical incidents to HHSC.
Proposed §559.243, Complaint Investigation, describes the process HHSC will follow regarding complaint investigations and investigations of abuse, neglect, or exploitation.
Proposed §559.245, Confidentiality, establishes that all reports, records, communications, and working papers used or developed by HHSC in an investigation are confidential and may be released only as provided in this section.
Proposed §559.247, Nonemergency Suspension, establishes that HHSC may suspend a license when a violation of the licensure rules threatens to jeopardize the health and safety of individuals. The rule outlines the process HHSC will follow and describes the individualized skills and socialization provider’s due process.
Proposed §559.249, Revocation, establishes that HHSC may revoke a license under specific circumstances and outlines the individualized skills and socialization provider’s due process.
Proposed §559.251, Emergency Suspension and Closing Order, establishes HHSC’s ability to suspend a license or order an immediate closing of an operation under specific circumstances and outlines the individualized skills and socialization provider’s due process.

In Addition Re:

Notice of Public Hearing on Proposed Amendments to Program Rules for School Health and Related Services

OVERVIEW

The Texas Health and Human Services Commission (HHSC) will conduct a public hearing to receive public comments on the proposed Title 1, Texas Administrative Code (TAC) §354.1341, concerning Benefits and Limitations; and §354.1342, concerning Conditions for Participation for the School Health and Related Services (SHARS) program. The hearing will be held in compliance with Texas Government Code (TGC) §2001.029(b), which requires a state agency to grant an opportunity for a public hearing before it adopts a substantive rule if a public hearing is requested by (1) at least 25 persons; (2) a governmental subdivision or agency; or (3) an association having at least 25 members.

Updated Public Notice: Inclusion of American Rescue Plan Act of 2021 Into CHIP State Plan

OVERVIEW

The Texas Health and Human Services Commission (HHSC) announces its intent to submit Amendment 22-0031 to the Texas State Plan for the Children’s Health Insurance Program (CHIP), under Title XXI of the Social Security Act. This amendment is identical to Amendment 22-0003 and replaces the previously announced Amendment 22-0003 which served the same purpose. This update is intended to provide notice of the change to the Transmittal Number from 22-0003 to 22-0031.

BACKGROUND AND JUSTIFICATION

As a reminder, the purpose of this amendment is to update the CHIP State Plan to indicate compliance with the American Rescue Plan Act (ARPA) of 2021 provisions that require states to cover treatment (including treatment of a condition that may seriously complicate COVID-19 treatment), testing, and vaccinations for COVID-19 without cost-sharing in CHIP, effective March 11, 2021, through the last day of the first calendar quarter that begins one year after the last day of the COVID-19 emergency period.

Texas Optometry Board

Adopted Rules Re:

New 22 TAC §273.17, requiring that applicants for licensure and renewal of licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course beginning in January 1, 2023.

CHAPTER 273. GENERAL RULES
22 TAC §273.17

OVERVIEW

The Texas Optometry Board (TOB) proposes new §273.17 Emergency Management. This proposed new rule requires all initial applicants for licensure provide proof of successful completion of a cardiopulmonary resuscitation (CPR) or basic life support (BLS) course prior to receiving a license beginning in January 1, 2023. This proposed new rule also requires all active licensees to provide proof of successful completion of a CPR or BLS course prior to the renewal of license each cycle beginning in January 1, 2023. This new rule will ensure that active licensees are prepared to manage an emergency situation. Optometry students are already required to be certified in either CPR or BLS and approximately half of the current active licensee population is already CPR or BLS certified.

Proposed Rule Reviews Re:

Proposed review of Chapter 280 Therapeutic Optometry

Title 22, Part 14

The Texas Optometry Board (Board) proposes to review and consider for readoption, revision, or repeal Chapter 280 Therapeutic Optometry, in its entirety.

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist.

During the review process, the Board may determine whether a specific rule requires amendments to refine the Board’s rules that govern the certification and practice of therapeutic optometry; whether the rules reflect current practice interpretations; whether the rules reflect current procedures; that no changes to a rule as currently in effect are necessary; or that a rule is no longer valid or applicable. Rules may also be combined or reduced for simplification and clarity when feasible. Any proposed amendments or repeal of a rule or chapter as a result of the review will be published in the Proposed Rules section of the Texas Register and will be open for an additional 30-day public comment period before final adoption or repeal.