Community Care for Aged and Disabled Chapter 37

DRAFT PROPOSED RULES FOR CHAPTER 37:

COMMUNITY CARE FOR AGED AND DISABLED SERVICES

SUBCHAPTER H

RESIDENTIAL CARE

SUBCHAPTER H – RESIDENTIAL CARE

§37.801. Purpose §37.802. Definitions §37.803. Service Array §37.804. Age Eligibility Criteria §37.805. Financial Eligibility Criteria §37.806. Income Limits §37.807. Countable Income §37.808. Income Exclusions §37.809. Exempt Income §37.810. Resource Limits §37.811. Countable Resources §37.812. Resource Exclusions §37.813. Functional Eligibility Criteria §37.814. Unmet Need Criteria §37.815. Additional Program Eligibility Criteria §37.816. Request for Services §37.817. RC Interest List §37.818. Emergency Care §37.819. Assessment Process §37.820. Service Plan Development

§37.821. Room and Board and Copayment

§37.822 Personal Leave and Bedhold Charges

§37.823 Waiver of Copayment

§37.824 Certification and Authorization

§37.825 Facility Responsibilities

§37.826 Monitoring

§37.827 Changes

§37.828 Reassessment

§37.829 Required Service Suspensions

§37.830 Required Immediate Suspension and Crisis Intervention

§37.831 Required Notifications from the Facility

§37.832 Interdisciplinary Team (IDT)

§37.833 Denial of the Request for Services

§37.834 Reduction in Service

§37.835 Terminations

§37.836 Reinstatement of Services After Termination for Non-Compliance or

Threats to Health and Safety

§37.837 Notice of Adverse Action and Right to Appeal

CHAPTER 37 SUBCHAPTER H RESIDENTIAL CARE 37.801 Purpose (a) This chapter establishes the eligibility requirements and provides information for a

person to receive Residential Care services through the DADS.

(b) Residential Care provides services to adults who require access to services on a 24-

hour basis, but do not need daily nursing intervention. Residential Care services are

provided under Title XX of the Social Security Act.

37.802 Definitions (1) Applicant – A person who is applying for DADS services.

(2) Business Days – Any day except a Saturday, Sunday, or legal holiday listed in

Texas Government Code, §662.021.

(3) Caregiver – A relative, guardian, representative payee, or person who has contact

with the individual that is frequent enough or regularly scheduled enough that a

personal relationship exists or the individual perceives that person as having a role in

helping the individual to meet basic needs.

(4) Case manager -- A DADS employee who is responsible for case management

activities. Activities include eligibility determination, individual certification, assessment

and reassessment of an individual's needs, service delivery plan development, and

intercession on the individual's behalf.

(5) CFR – Code of Federal Regulations.

(6) Copayment - The amount of personal income an individual must pay to the facility toward the cost of care.

(7) DADS – Department of Aging and Disability Services.

(8) Days – Calendar days unless otherwise specified.

(9) Denial – An action taken by DADS that does not approve:

(a) an applicant's request for services; or

(b) a request for an increase of a service above the amount that is currently

authorized.

(10) Emancipated Minor - A person under 18 who has the power and capacity of an adult.

This includes a minor who has had the disabilities of minority removed by a court of law

or a minor who, with or without parental consent, has been married. Marriage includes

common-law marriage.

(11) Facility--A legal entity that contracts with DADS to deliver 24-hour residential

services in a licensed contracted facility.

(11) Functional Limitation – An individual's degree of difficulty in performing one or

more ADLs caused by a physical limitation or disability.

(12) Functional Need - The tasks and services identified by the individual that will

require assistance.

(13) Incarcerated – To be confined to a jail or prison.

(14) Individual – Except as otherwise provided in these rules, a person who is receiving

DADS services.

(15) Interdisciplinary Team – (IDT) – A designated group including representatives from

DADS, service providers and the individual or his representative who convene to discuss

service delivery issues.

(16) Installment Contract - An installment is a mortgage or similar contract in which the

buyer promises to pay a fixed amount over a period of time until the principal of the note

is paid.

(17) Involuntary Protective Services - Placement by a representative of the Texas

Department of Family and Protective Services (DFPS) Adult Protective Services

(APS) into a structured service or program for the safety of an individual and including

ongoing supervision by APS.

(18) Medicaid - A program funded jointly by the states and the federal government

that provides medical benefits to groups of low-income people, some who may have

no medical insurance or inadequate medical insurance.

(19) Medicaid Eligible – An individual eligible for federal assistance through

Supplemental Security Income (SSI) or Temporary Assistance to Needy Families

(TANF) or otherwise determined eligible by the Health and Human Services

Commission for full Medicaid benefits.

(20) Person – An individual that has not applied for and is not receiving DADS services.

(21) Personal leave--Any leave from a residential care facility except for hospitalization

or institutionalization. A day of personal leave is any period of 24 consecutive hours.

(22) Personal Representative- An individual's spouse, other responsible party, designated

representative, or legally authorized representative.

(23) Personal Property - Personal property is property owned by an individual or

business which is movable and is not affixed to or associated with the land. Basically,

personal property is everything except real property.

(24) Real Property - Real property for property tax purposes generally includes the land,

building, structures, and all improvements or fixtures annexed to the building or structure

(25) Residential Care – A DADS program providing services to eligible individuals who

require access to services on a 24-hour basis, but do not need daily nursing intervention.

(26) Room and Board - The amount of personal income a client must pay to the facility

toward the cost of lodging and food.

(27) Regional Provider Rotation Log – A log kept by the regional staff listing all the

providers contracted to provide a specific service in the contracted service delivery area.

If an applicant/individual does not select a provider of services, a provider is assigned for

the individual on a rotation basis among all the contracted providers.

(28) Service Plan – The tasks and services authorized by the DADS case manager and

agreed upon by the individual receiving services to be delivered by the contracted

provider.

(29) U. S. C. – United States Code.

37.803 Service Array

(a) Residential Care services provide:

(1) Personal care. The facility must provide or assist with personal care services identified on the service plan completed for the individual. Personal care services are activities related to the care of the individual’s physical health that include at a minimum: (A) bathing; (B) dressing; (C) grooming; (D) routine hair and skin care; (E) exercising; (F) toileting; (G) medication administration, except injections; (H) transferring/ambulating, except in a Type A assisted living facility; (I) twenty-four-hour supervision, which means the facility must: (i) conduct checks or visits to each individual as identified in the individual’s service plan, to ensure that each individual is safe and well; and

(ii) document the checks and visits in the individual’s file; (J) meal services, which means the facility must: (i) provide meal services as described in §92.41(m) of this title (relating to Standards for Type A, Type B, and Type E Assisted Living Facilities); (ii) offer dietary counseling and nutrition education to the individual; (iii) modify food texture, including: (I) chopping, grinding, and mashing foods for individuals who have trouble chewing; and (II) cutting up food into bite size pieces for individuals who have trouble cutting food; and (iv) assist with eating, including: (I) assistance with spoon-feeding in instances when the individual is temporarily ill; (II) bread buttering; and (III) opening containers or pouring liquids for individuals with hand deformities, paralysis, or hand tremors. (2) Home management. The facility must provide or assist with activities related to housekeeping that are essential to the individual's health and comfort, which are: (A) changing bed linens; (B) housecleaning; (C) laundering; (D) shopping; (E) storing purchased items in the individual's living unit; and (F) washing dishes. (3) Transportation and escort. (A) The facility must provide the individual with transportation, escort, or both to: (i) local community areas where an individual may purchase items to meet his or her personal needs or conduct personal business according to the facility's published schedule; (ii) recreational activities, field/community trips according to the facility's published schedule; and (iii) the nearest available medical provider for medical appointments, therapies, and other medical care. (B) The facility must make arrangements for other transportation for the individual to the medical care provider of the individual's choice if the individual's medical provider is not the nearest available provider. (4) Social and recreational activities. The facility must provide a minimum of four scheduled social and recreational activities per week. (A) Activity requirements. The social and recreational activities must be: (i) planned to meet the social needs and interests of the individuals; and

(ii) listed on a monthly calendar that is posted in plain view at the facility at least one week in advance. (B) Types of activities. Social and recreational activities include: (i) activities that require group and individual-initiated activities; (ii) opportunities to interact with other people; (iii) interaction, cultural enrichment, educational, or recreational activities; and (iv) other social activities on site or in the community. (6) Emergency care. The facility must provide emergency care as authorized by the case manager. (A) Emergency care is assisted living services provided to individuals while the case manager seeks a permanent living arrangement. (B) Emergency care services do not apply to the CBA AL/RC program. 37.804 Age Eligibility Criteria

To be eligible for Residential Care, a person must be 18 years of age or older, or an

emancipated minor.

37.805 Financial Eligibility Criteria

To be financially eligible for Residential Care, an individual must:

(a) be categorically eligible by receiving Temporary Assistance for Needy Families

(TANF), Supplemental Security Income (SSI), Qualified Medicare Beneficiary (QMB),

Specified Low-Income Medicare Beneficiary (SLMB), Qualifying Individuals (QI),

Supplemental Nutrition Assistance Program, Medicaid Buy-In or Medicaid; or

(b) meet the income and resource limits set by DADS.

37.806 Income Limits

(a) For sections §37.806 through §37.809, the term individual applies to both an applicant

and an individual receiving services.

(b) For an individual, the income limit is the same as the special income limit set for

institutional care (medical assistance only), which is equal to or less than 300 percent of

the full individual Supplemental Security Income (SSI) federal benefit rate. The special

income limit for a couple is twice the special income limit for an individual, as described

in 1 TAC §358.433 (relating to Special Income Limit).

37.807 Countable Income

DADS determines countable income by totaling gross income from both earned and

unearned income, less all applicable exclusions and exemptions. Applicable exclusions

and exemptions are specified in §37.808 and §37.809 of this chapter (relating to Income

Exclusions and Exempt Income).

(a) Earned Income. Earned income is considered from the following sources:

(1) Total gross earnings. This includes money, wages, commissions, tips, piece-rate

payments, cash bonuses, or salary received for work performed as an employee. This also

encompasses pay for members of the armed forces (including allotments from any armed

forces pay received by a member of the family group from a person not living in the

household).

(2) Net earnings from self-employment income (including farm income). For earned

income to be considered self-employment, either the individual or spouse must be

actively involved or materially participating in producing the income.

(b) Unearned Income. Unearned income means all other income, including:

(1) Social security and railroad retirement benefits.

(2) Dividends. This consists of dividends from stocks or membership in

associations, and periodic receipts from estates of trust funds. These payments are

averaged over a 12-month period.

(3) Rental income. This includes payments to the individual from the rent of

housing, store, or other property, as well as from boarders or lodgers.

(4) Net income derived from oil, gas, or mineral rights. This can include both

lease and royalty payments. These payments are averaged over a 12-month period.

(5) Income from mortgages or contracts.

(6) Public assistance or welfare payments. Temporary Assistance to Needy

Families, Supplemental Security Income, and general assistance (cash payments from a

county or city) are included.

(7) Veterans' pensions and compensation checks. This may include money paid

periodically by the Veterans Administration to disabled members of the armed forces or

to survivors of deceased veterans, subsistence allowances paid to veterans for education

and on-the-job training, and refunds paid to ex-servicemen as GI insurance premiums.

(8) Educational loans, grants, fellowships, and scholarships.

(9) Unemployment compensation. Unemployment compensation may be received

from government employment insurance agencies or private companies during periods of

unemployment, and includes any strike benefits received from union funds.

(10) Workers compensation and disability payments. This includes compensation

received periodically from private or public insurance companies for injuries incurred at

work.

(11) Alimony.

(12) Regular monthly cash support payments from friends or relatives.

(13) Pensions, annuities, and irrevocable trust funds. Payments may be paid to a

retired person or his survivors by a former employer or by a union, either directly or

through an insurance company. Periodic payments from annuities, insurance, irrevocable

trust fund payments, and civil service pensions are included.

(14) Income from the individual's share of a life estate.

37.808 Income Exclusions

Income may be fully or partially countable, or may be excluded from the current

eligibility budget. The case manager monitors excludable income at each financial review

to determine how eligibility is affected.

(a) Excludable income is:

(1) deductions from earned income, including social security payments, Medicare

premium payments, bonds, pensions, and union dues;

(2) the first $65 of an individual's or couple's net earned income, plus 1/2 of the

remainder;

(3) loans, grants, scholarships, and fellowship funds obtained and used under

conditions that preclude their use for current living costs. Any portion used to pay any

other expense (room, board, books, etc.) is included;

(4) Veterans Administration aid-and-attendance benefits, homebound elderly benefits,

and payments to certain eligible veterans for purchase of medications;

(5) infrequent or irregular income (income received less frequently than once a month)

that averages $20 per month or less;

(6) 1/3 of the total amount of child support payments for an eligible child; and

(b) Excludable expenses from self-employment income.

(1) the following expenses from self-employment income are deducted in

determining earned income:.

(A) Money paid to or for employees living in the home or not living in the home;

(B) federal, state, or local income taxes;

(C) sales tax;

(D) property tax;

(E) rental of business property;

(F) utilities for business property;

(G) stock/inventory, raw materials;

(H) supplies;

(I) fuel expenses for the business;

(J) insurance premiums;

(K) linen service;

(L) interest for business loans or property;

(M) lodging when traveling (when not counted as shelter);

(N) own meals when traveling for business;

(O) net loss for same determination period;

(P) additional expenses related to self-employment (advertising, co-op, license

fees, journals, etc.);

(Q) depreciation related to self-employment; and

(R) cost of doing business in the home including utilities. The rooms designated

for business purposes in a single residence must be separately identifiable from expenses

for the home.

(2) The following expenses from self-employment income may not be deducted in

determining earned income:

(A) Purchase and cleaning of uniforms;

(B) capital asset purchases;

(C) capital asset improvements;

(D) payment on principal of loan for income-producing property;

(E) travel to/from place of business;

(F) depreciation related to unearned income (e.g., rental income); and

(G) net loss from previous determination period.

37.809 Exempt Income

(a) Certain income is exempt when determining eligibility and is not counted in

determining total income. Once identified and documented, the DADS case manager

does not monitor exempt income at subsequent financial redeterminations.

(b) The following sources of income are exempt:

(1) interest income;

(2) cash received from the sale of a resource. This cash is a resource, not income;

(3) income of minor children who are supported by or dependent upon the individual; (4) refunds from the Internal Revenue Service for earned income tax credit;

(5) reimbursement from an insurance company for health insurance claims;

(6) any cash from a non-governmental medical or social services organization if the

cash is:

(A) for medical or social services already received by the individual and approved

by the organization, and which does not exceed the value of those services; or

(B) a payment restricted to the future purchase of a medical or social service;

(7) funds received (amount borrowed) by the individual from either a commercial loan or

an informal loan, when repayment is required with or without interest;

(A) A loan requires a bona fide agreement that is legally valid and made in good

faith. The individual must acknowledge an obligation to repay and that some plan for

repayments exists.

(B) The amount borrowed is not counted as income in the month in which it is

received, but is counted as a resource in the following month(s).

(C) Federal Educational Loans (Federal PLUS Loans, Perkins Loans, Stafford

Loans, William D. Ford Loans, etc.) under Title IV of the Higher Education Act (HEA)

are exempt from income and resources.

(8) amount of the cost-of-living increase in any pension or benefit, received on or after

January 1, 1985, that would cause the individual to be ineligible for continued services.

This exclusion applies only to an individual who is already receiving services and would

become ineligible because of the increase. It does not apply to applicants.

(9) in-kind income, such as food, clothing, shelter, rent subsidies.

(10) one-time or lump-sum payments from any source.

(11) funds from the In-Home Family Support Program or the Transition to Life in the

Community Program.

(12) payments exempted by federal laws in accordance with 20 CFR §416.1112,

§416.1124, Appendix to Subpart K (relating to exclusions regarding Food, Housing and

Utilities, Education and Employment, Native Americans, and Other exclusions), {ADD

LINK} and §416.1150 (relating to the Disaster Relief and Emergency Assistance Act).

{ADD LINK}

37.810 Resource Limits

To be eligible for Residential Care, the value of nonexempt resources owned by the

individual and spouse cannot exceed the greater of:

(a) the countable resource limits for the Medicare Saving Programs in accordance with 42

U. S. C. §1395w-114 (a)(3)(D); or

(b) $5,000 for an individual or $6,000 for a couple.

37.811 Countable Resources

Countable resources are cash or other liquid assets or any real or personal property that

an individual (or spouse, if any) owns and could convert to cash to be used for his or her

support and maintenance.

In determining eligibility for Residential Care services, DADS considers the following to

be resources.

(a) Liquid Resources. Liquid resources include:

(1) cash on hand;

(2) certificates of deposit;

(3) checking or savings accounts;

(4) money market funds;

(5) revocable trust funds;

(6) savings certificates;

(7) stocks; or

(8) bonds.

(b) Jointly held liquid resources are counted if the individual has unrestricted access to

the funds regardless of the source. The individual may move his portion of jointly held

funds in a joint account to a new account. The new account may be jointly owned, but

DADS counts all funds in the new account as a resource.

(c) Non-liquid Resources. Non-liquid resources include:

(1) nonexempt licensed or unlicensed vehicles;

(2) buildings and land not designated as homestead that are not producing income, or

are producing income less than 6.0% of the equity value; and

(3) any other property not specifically excluded.

(d) Money received as a nonrecurring lump sum payment is not considered a resource

until 30 days after the date of receipt. The individual is responsible for reporting the

receipt of a lump sum payment. Lump sum payments include:

(1) income tax refunds;

(2) earned income tax credits or rebates;

(3) one-time bonuses from mineral rights;

(4) retroactive lump sum social security, SSI, or railroad retirement benefits;

(5) lump sum insurance settlements;

(6) one-time gifts, awards, or prizes; and

(7) refunds from rental or utility deposits.

37.812 Resource Exclusions

(a) In determining eligibility for Residential Care services, DADS excludes the value of

the following items for eligibility purposes:

(1) homestead. Any structure used by the individual as a residence, including other

buildings and all contiguous land. Mobile homes, houseboats, and motor homes are

considered structures. Vacant property is not a homestead. Contiguous land means all

land adjacent to the home, including any land separated only by roads, rivers, and

streams. Land is contiguous as long as it is not separated by property owned by another

person. The homestead is excluded as a resource regardless of its location, even if the

individual no longer lives there (unless he has purchased another residence). If he owns

two houses, his homestead is the property he uses as a residence. Only one homestead

may be excluded for each individual or couple;

(2) personal property. Household goods and personal effects;

(3) property essential to employment. Tools and equipment required for employment or

self-employment;

(4) prepaid burials. Prepaid burial arrangements, burial insurance, and burial plots;

(5) life insurance. The cash surrender value of all life insurance;

(6) vehicles. One passenger car or other vehicle, such as a van or truck, used for

transportation or one unlicensed vehicle;

(A) A second vehicle may be excluded if it is:

(i) specially equipped to enable a person with a disability to drive; or

(ii) essential to the employment or self-employment of the family.

(B) Any additional vehicles, licensed or unlicensed, are considered resources;

(7) income-producing property. Property that annually produces net income equal to or

greater than 6.0% of the property's equity value. The equity value is the current market

value of the property less any recorded encumbrances;

(8) property the individual has sold that is under an installment contract and the contract

or agreement is producing income according to the fair market value at the time of the

agreement. Even though the individual, as the seller, retains legal title, the property is not

considered a countable resource as long as the buyer is fulfilling the contractual

obligation. The payment is considered income;

(9) disaster assistance. Government payments granted for the rebuilding of homes

destroyed or damaged in a disaster;

(10) energy assistance. Payments or allowances for energy assistance made under any

federal, state, or local law;

(11) Supplemental Nutrition Assistance Program (SNAP) allotments. The value of

SNAP allotments and USDA-donated foods;

(12) inaccessible resources. The cash value of resources inaccessible to the individual,

including, irrevocable trust funds, property in probate, and pension funds. Real property

that the individual or family is making a good faith effort to sell is exempt. The

individual or family must ask a fair price for the property, according to its current market

value. Property is also exempt if it is jointly owned and the other co-owners refuse to sell;

(13) mineral rights. The value of mineral rights;

(14) life estates and remainder interests. A life estate is the right an individual has to

property during the individual's lifetime. A remainder interest is the right of ownership to

the property when the life estate holder dies;

(15) replacement value of excluded resources. If an excluded resource is lost, damaged

or stolen, the cash, including interest earned on the cash, or the in-kind replacement that

the person receives from any source to repair or replace the resource, is excluded. This

exclusion applies if the cash and the interest are used to repair or replace the excluded

resource within nine months of the date the individual received the cash. Any of the cash

or interest that is not used to repair or replace the excluded resource is counted as a

resource beginning with the month after the nine-month period expires.

(16) monthly gross income. Monthly gross income is counted as income in the month

received and excluded as a resource in that month, but considered a resource in

subsequent months;

(17) sale of a homestead. Proceeds from the sale of a homestead are exempt for up to six

months after becoming available to the seller. If the individual acquires another

homestead during the six months, any balance from the original sale is counted as an

available resource. If, before the end of the six-month period, the individual declares he

has no intention of acquiring another homestead, the proceeds from the sale are counted

as an available resource;

(18) Agent Orange settlement payments. Payments from the Agent Orange settlement

fund or any other fund established in settlement of the Agent Orange product liability

litigation;

(19) radiation exposure compensation. Payments received under the Radiation Exposure

Compensation Act (Public Law 101-426);

(20) funds from the In-home and Family Support Program or the Transition to Life in

the Community Program;

(21) livestock;

(22) earned income tax credit (EITC) refunds from the Internal Revenue Service.

(b) Any item not listed as an exclusion is considered a resource.

37.813 Functional Eligibility Criteria

To be eligible for Residential Care, a person must meet the minimum functional need

criteria as set by DADS. DADS uses a standardized assessment instrument to measure

the person’s ability to perform activities of daily living. This yields a score, which is a

measure of the person’s level of functional need. DADS sets the minimum required score

for a person to be eligible, which DADS may periodically adjust commensurate with

available funding. DADS will seek stakeholder input before making any change in the

minimum required score for functional eligibility.

37.814 Unmet Need Eligibility Criteria

To be eligible for Residential Care, DADS must determine a person has an unmet need

based on the standardized assessment instrument.

37.815 Additional Program Eligibility Criteria

In addition to meeting the age, financial, functional and unmet need criteria, to be eligible

for Residential Care,

(a) an applicant must:

(1) not have inappropriate characteristics for placement in the RC facility as

determined by the DADS standardized characteristics assessment. The applicant’s needs

must not exceed the facility's capability to provide care under its licensed authority;

(2) have adequate income to contribute to the total cost of the care that he receives;

(3) pay the facility directly the set rate for room and board as established by the Health

and Human Services Commission; and

(4) pay the facility a copayment if it is required, as calculated in accordance with

§37.820 (relating to Room and Board and Copayment).

(5) not receive personal attendant services and residential care services at the same

time.

37.816 Request for Services (a) A request for Residential Care may begin with:

(1) a telephone, written, or walk-in request for services from a person or the person’s

relative, friend, or other interested party; or

(2) a telephone or written request for services from another agency, organization, or

DADS division.

(b) All information collected about a person to determine eligibility for services is

confidential and may be released only in accordance with federal and state laws and

regulations.

37.817 Residential Care Interest List

(a) If all service authorization slots are filled at the time of the request for services,

DADS places the person on an interest list for the service. DADS explore other options

for meeting the individual’s needs.

(b) A person who request placement on an interest list must be a Texas resident.

(c) DADS releases persons from the interest list on a first-come, first-served basis;

eligibility determinations are conducted as slots for service become available.

(d) The DADS case manager contacts the person released from the interest list, to

determine continued interest in services. If the person is no longer interested in services

and voluntarily withdraws, the case manager takes no further action. If the person is

interested in services, the case manager proceeds to the assessment process.

37.818 Emergency Care (a) Eligibility for emergency care is based on the following criteria.

(1) The applicant:

(A) has lost his home or caregiver; or

(B) has been discharged from a hospital or institution; or

(C) is in a similar emergency situation.

(2) The applicant:

(A) is income-eligible or Medicaid eligible (not in an institution); and

(B) meets the functional need criteria as set by DADS. DADS uses a standardized

assessment instrument to measure the person's ability to perform activities of daily living.

This yields a score, which is a measure of the person's level of functional need. DADS

sets the minimum required score for a person to be eligible, which DADS may

periodically adjust commensurate with available funding. DADS will seek stakeholder

input before making any change in the minimum required score for functional eligibility.

(3) The applicant's needs may not exceed the facility's capability under its licensed

authority.

(b) Emergency care individuals are eligible for services for up to and including 30 days

while DADS seeks a permanent care arrangement. If the person is not placed within the

initial 30-day period, he is eligible to receive services for up to one 30-day extension, for

a total of 60 days.

(c) Emergency care is terminated by DADS when the approved service period is over or

when suitable care arrangements have been made. DADS redetermines the individual’s

eligibility each time a request for services is made.

37.819 Assessment Process (a) DADS conducts an initial face-to-face interview to begin determination of eligibility

for Residential Care.

(1) DADS schedules an initial interview by telephone or in writing to take place

in the person’s home, if possible,

(2) If the initial interview and assessment is in a location other than the person's

home and services are subsequently initiated, DADS conducts a home visit within 30

days after service initiation to assess the home environment.

(b) DADS takes no further action on the request for services, if the person withdraws the

request before DADS begins the initial interview.

(c) During the face-to-face interview, the applicant must provide information on his

medical conditions, functional limitations, household composition, home environment,

and resources available to meet his needs, so the DADS case manager can complete the

standardized assessment instrument and the assessment process. (d) If the case manager is unable to contact the applicant after repeated attempts or the applicant refuses to cooperate with scheduling the visit or providing required information within 30 days after the intake date, the DADS case manager closes the request for services and sends a denial notice to the applicant.

37.820 Service Plan Development

(a) The DADS case manager and the individual (to the extent of his ability), or the

individual’s designated personal representative, develop a service plan, based on the

individual’s needs and available resources.

(b) The DADS case manager considers the use of other resources available through

DADS, other agencies, community resources, and available caregivers in developing the

service plan to meet the individual’s needs. Services are only authorized if the

individual’s needs cannot be met through other resources.

(c) The service plan determines the tasks to be authorized by the DADS case manager on

the DADS' authorization for community care services form.

(d) The applicant must select a provider contracted to provide RC services in his service

area. The applicant has freedom of choice among the contracted providers. The applicant

can:

(1) select the facility, or

(2) choose to take the next facility on the regional facility rotation log.

(3) The applicant must indicate his choice of available facilities before beginning the

assessment process. If an applicant already has a facility in mind that does not have space

available, he may elect to remain on the interest list until a space is available in that

facility.

37.821 Room and Board and Copayment

(a) Individuals entering Residential Care (RC) are required to pay for room and board.

The room and board payment is a specific daily rate determined by the Health and

Human Services Commission based on the type of residential setting, either apartment or

non-apartment.

(b) The individual keeps a monthly allowance for his personal and medical expenses.

(1) The Medicaid recipient keeps $123;

(2) a qualified Medicare beneficiary (QMB non-Medicaid) keeps $182; and

(3) the non-Medicaid, non-QMB individual keeps $211 and the part B Medicare

premium fee.

(4) In addition to the monthly allowance, an individual with earned income keeps all

of the earned income up to a maximum of $65 per month.

(c) After deducting the room and board payment, the DADS case manager calculates the

individual’s copayment based on personal needs allowance and any other approved

deductions.

(d) The DADS case manager sends a written notice to the individual and the facility

advising of the room and board and copayment amounts to be paid monthly to the

facility. The individual must be advised that if the fees are not paid, he will no longer be

eligible for RC.

(e) Whenever cost-of-living changes increase benefits, the amount of room and board and

copayment will be adjusted accordingly. Increases are effective the first day of the month

following the end of the 12-day notification period.

(f) The individual’s contribution to the cost of care must never exceed the daily RC rate

established by the Health and Human Services Commission.

37.822 Personal Leave and Bedhold Charges

(a) Personal Leave. The individual is eligible for 14 days of personal leave from the

residential care facility each calendar year. Vacations and visits with family or friends are

examples of personal leave. The individual must pay the copayment and room and board

charges for personal days.

(1) If an individual exceeds the allowable limit of 14 days of personal leave, the

individual is responsible for paying all charges for services, according to any existing

contract or agreement between the individual and the facility.

(2) If the individual does not pay the bedhold charge for days of personal leave

that exceed the limits, he may lose his space in the facility.

(b) Bedhold Charges. The individual must pay his copayment or the facility's bedhold

charge, whichever is lower to reserve his space in the facility during hospital, nursing

home, or institutional stays, as defined in §46.49 of this title (relating to Institutional

Leave).

(1) If the copayment amount is less than the bedhold charge, DADS pays the

difference.

(2) Nursing home and institutional stays are limited to 30 days.

(3) Hospital stays are limited to 60 days.

(c) Notification of institutional leave. The facility must notify the DADS case manager of

any institutional leave as described in §46.45 of this title (relating to Required

Notifications).

37.823 Waiver of Copayment

(a) The DADS case manager, with regional approval, may reduce or waive the

individual’s copayment if there are unusual financial obligations such as high medical

expenses, a need to purchase mobility aids or temporary reductions in monthly income.

(b) The DADS case manager must send documentation to the provider explaining the

basis for the reduction or waiver and documenting the specific period of time the

reduction or waiver is effective.

(c) The DADS case manager reviews the individual’s circumstances before the waiver

expires to determine whether the reduction or waiver needs to continue and documents

the decision.

(d) The reduction or waiver may not be applied to the required room and board amount.

37.824 Certification and Authorization

(a) The DADS case manager makes the final eligibility determination within 30 days

after the face-to-face interview.

(b) If the applicant is determined eligible, the DADS case manager certifies eligibility

and authorizes services.

(1) The DADS case manager:

(A) negotiates a move-in date with the individual and the RC provider. The facility

must reserve a living unit for three days from the agreed upon move-in date for each

referred individual. The facility may request another referral after three days if the

move-in date is not re-negotiated.

(B) sends the provider the final authorization for RC on the DADS authorization

for community care services form; and

(C) sends the applicant written notification of eligibility for RC.

(c) If the applicant is determined ineligible, the DADS case manager sends the applicant

written notification of ineligibility for RC.

37.825 Facility Responsibilities

Upon receipt of the DADS authorization for community care services form, the facility

must complete the following:

(a) Individual and facility agreement. The facility must have a written agreement with the

individual or the individual’s representative in accordance with §46.39 of this title

(relating to Service Initiation). Both parties must sign the written agreement before or at

the time of admission. The written agreement must include the following:

(1) bedhold policies for hospital and nursing facility stays;

(2) personal leave policies and charges;

(3) eviction procedures;

(4) all available services in the facility; and

(5) charges for services not paid by DADS and charges not included in the

facility's basic daily rate, as described in §46.15 of this title (relating to Additional

Services and Fees).

(b) a health assessment of the individual and develop an individual service plan in

accordance with §46.39 of this title (relating to Service Initiation).

37.826 Monitoring

(a) The DADS case manager monitors the individual’s status, satisfaction with services

received, and adequacy of the service plan to meet the individual’s needs. DADS

determines the frequency and type of monitoring conducted.

(b) If the individual is dissatisfied with services or requests changes in services, the

DADS case manager takes the appropriate action to resolve the issue or authorize the

change in service.

(c) If the change request is not approved, the DADS case manager sends a written notice

in accordance with §37.837 of this chapter (relating to Notice of Adverse Action and

Right to Appeal).

37.827 Changes

(a) Eligibility. The individual must promptly report to the DADS case manager, any

changes that may affect eligibility in accordance with §37.804, §37.805, §37.806,

§37.810, §37.813, §37.814, §37.815 of this title. The individual who willfully fails to

report changes and continues to receive services for which he is not eligible may be

prosecuted for fraud.

(b) Service Plan Changes. The individual or the individual’s designated personal

representative may request changes in the tasks authorized based on changes in the

individual’s medical condition, functional needs, or available resources.

(c) Provider requirement. The RC provider must notify the DADS case manager of

changes in accordance with §46.45 of this title (regarding Required Notifications)

(d) Case manager actions. The DADS case manager takes appropriate action on the

request for a change. If approved, the DADS case manager:

(1) develops the service plan in accordance with §37.820 of this chapter (relating to

Service Plan Development);

(2) sends the DADS authorization for community care services form to the provider

making the change, and

(3) sends written notification to the individual advising of the change in the service

plan.

(4) If the change request is not approved, the DADS case manager sends a written

notice in accordance with §37.837 of this chapter (relating to Notice of Adverse

Action and Right to Appeal).

37.828 Reassessment

(a) Annually, the DADS case manager re-determines the individual’s functional

eligibility for services and reassesses the individual’s functional needs. If DADS

required a home visit, the individual must be available for the visit.

(b) The DADS case manager re-determines financial eligibility within 24 months of the

previous determination of financial eligibility.

(c) To continue receiving services, the individual must meet eligibility requirements in

accordance with §37.804, §37.805, §37.806, §37.810, §37.813, §37.814 and §37.815

of this chapter at the time the DADS case manager re-determines eligibility.

(d) An individual who does not meet all eligibility requirements at the time of

reassessment is not eligible. The DADS case manager terminates services and sends a

written notice in accordance with §37.839 of this chapter (relating to Notice of

Adverse Action and Right to Appeal).

37.829 Required Service Suspensions

(a) The Residential Care provider suspends services if an individual:

(1) permanently leaves the facility;

(2) moves to a location where services cannot be provided under the RC Program;

(3) dies;

(4) is admitted to an institution, as defined in §46.49 of this title (relating to

Institutional Leave).

(5) requests that services end.

(b) After receiving notice of suspension from the provider, the DADS case manager

verifies the individual can no longer receive services as listed in (a) (1)-(5). If verified,

the DADS case manager terminates services in accordance with 37.832 of this chapter

(relating to Terminations).

37.830 Required Immediate Suspension and Crisis Intervention

(a) To receive services, the individual must not jeopardize the health and safety of the

DADS program staff,, service providers delivering services or others. If a situation exists

as described in (a)(1) or (a)(2) of this section, DADS or the provider must immediately

suspend services to the individual.

(1) The individual exhibits reckless behavior that could result in imminent danger to the

health and safety of the individual, DADS staff, provider staff or other persons. Examples

include:

(A) exhibiting weapons;

(B) making direct spoken threats of physical harm, force or death by the individual or

someone in the individual’s home;

(C) physically attacking a person with or without a weapon;

(D) evidence of using, manufacturing or selling illegal drugs; or

(2) The individual’s environment or circumstances present hazardous conditions that

could result in imminent danger to the health and safety of DADS staff or the service

provider. Examples include:

(A) an animal that could be hazardous and is not restrained;

(B) an outbreak of pests that is not controlled;

(C) an active tuberculosis diagnosis.

(b) Upon suspension of services, the DADS case manager or the provider must make an

immediate referral for appropriate crisis intervention services to:

(1) the Texas Department of Family and Protective Services or other appropriate

agencies; or

(2) local law enforcement, if appropriate.

(c) The DADS case manager contacts the individual or his personal representative and

convenes an interdisciplinary team meeting to discuss resolution on the issues, in

accordance with §37.832 of this title (relating to Interdisciplinary Team). Services do not

continue during the suspension.

(d) If the issue cannot be resolved, the DADS case manager must notify the individual of

the termination of services and the right to appeal the decision in accordance with

§37.835 of this title (relating to Terminations) and in accordance with §37.837 of this title

(relating to Notice of Adverse Action and Right to Appeal). Services do not continue

during the appeal process.

37.831 Required Notifications from the Facility

(a) To receive RC services, an individual must comply with RC program requirements

including and allowing determination of eligibility, delivery of services according to the

service plan and monitoring of services. If the individual is refusing to comply with RC

program requirements, the RC facility must notify the DADS case manager. The

following are examples requiring notification. The facility notifies the DADS case

manager if:

(1) the individual has significant changes in his health or condition; (2) the individual temporarily enters an institution;

(3) the individual has a substantial and documented pattern of verbal abuse,

harassment or sexual harassment of service providers, not related to the individual’s

disability, which results in an inability to provide services to the individual; or

(4) the individual has a substantial and documented pattern of discrimination against

the service providers or DADS staff on the basis of race, color, national origin, age,

sex, or disability in violation of applicable law, that has not improved with

appropriate intervention and which results in an inability to provide service(s) to the

individual; or

(5) the individual refuses to allow services to be delivered according to the service

delivery provisions or be available for monitoring contacts in compliance with the

facility; or

(6) the individual fails to pay the required contribution to the cost of care (room and

board or copayment) by the facility's due date; or

(7) uses more than 14 personal leave days in the current calendar year; or

(8) the individual or the individual’s representative requests that services end.

(b) The facility must notify the DADS case manager orally or by facsimile about the non-

compliance no later than one DADS working day after the non-compliance happens. If

the facility's first notification is oral, the facility must send written notification to the case

manager within five working days of the initial notification.

(c ) The DADS case manager contacts the individual or his personal representative and

convenes an interdisciplinary team (IDT) meeting to discuss resolution on the issues, in

accordance with §37.832 of this chapter (relating to Interdisciplinary Team).

(1) If the issue is resolved during the first or any subsequent IDT meetings, the DADS

case manager negotiates a date with the provider to resume services.

(2) If the issue cannot be resolved during the first or any subsequent IDT meetings,

the DADS case manager may at any point during this process, proceed to termination of

services in accordance with §37.837 of this chapter (relating to Terminations)

(d) After the IDT meeting when the issue is resolved, the DADS case manager sends a

written notification to the individual detailing the results of the IDT meeting and advising

services will be terminated if the individual does not comply with RC program

requirements or continues behavior that results in non-compliance with RC program

requirements..

(e) If there is a second occurrence, the DADS case manager convenes a second IDT

meeting. If the issue is resolved during the IDT, the DADS case manager sends the

individual a second written notification in accordance with subsection (c) of this section

(relating to Required Notifications from the Facility).

(f) If there is a third occurrence, the DADS case manager convenes a third IDT meeting

and if the issue is resolved, send the individual a third written notification in accordance

with subsection (c) of this section (relating to Required Notifications from the Facility).

(g) If there is a fourth occurrence of the individual repeatedly refusing to cooperate with

RC program requirements, the DADS case manager proceeds with the termination of

services in accordance with §37.837 of this chapter, (relating to Terminations), and

provides notification of termination of services and offers the right to appeal. Services do

not continue during the appeal process.

37.832 Interdisciplinary Team (IDT)

(a) The IDT is a designated group that includes the following people who meet when the

DADS case manager or provider identifies the need to discuss service delivery issues or

barriers to service delivery:

(1) the individual or the individual's representative, or both;

(2) a provider representative; and

(3) a DADS representative, who may be:

(A) the case manager (or designee);

(B) the case manager's supervisor (or designee);

(C) the contract manager (or designee); or

(D) the regional nurse (or designee).

(b)The IDT meeting is conducted in accordance with Chapter §46.35 of this title (relating

to Interdisciplinary Team). The DADS case manager or provider convenes an IDT

meeting:

(1) within three working days or sooner if required, after the date the provider sends

notification or suspends services to an individual under §37.830 of this chapter (relating

to Required Immediate Suspension and Crisis Intervention); or §37.831 of this chapter

(relating to Required Notifications from the Facility); or

(2) within seven working days after the date the provider identifies an issue that

prevents the provider from carrying out a requirement of the RC Program.

(c) Requirements of the IDT meeting.

(1) The IDT meeting may be conducted by telephone or in person.

(2) The IDT must:

(A) evaluate the issue and discuss the RC program requirements for continued

services. The issue requiring the suspension must be discussed;

(B) identify any solutions to resolve the issue, including the individual’s

understanding of the issue and what must be done to resolve the issue;

(C) document the requirements for continued services.

(D) In situations of threats to health and safety, the DADS case manager and

provider may agree that a physician’s statement of evaluation in accordance with

§37.838 (relating to Reinstatement of Service After Termination for Non-

Compliance or Threats of Health and Safety) is required prior to the resumption of

services, confirming the individual is no longer a threat to health and safety. In

this situation, the DADS case manager must send a notice of suspension to the

individual.

(3) The IDT must conclude with one of the following courses of action:

(A) The individual agrees to cooperate with RC program requirements and

services are reinstated. The provider within two business days after the IDT meeting

must:

(i) implement the recommendations of the IDT; or

(ii) discharge the individual from the provider and refer the individual to

the case manager for referral to another provider.

(B) The individual does not agree to cooperate with the RC program

requirements and the DADS case manager begins the termination process.

(d) The DADS case manager must document the IDT meeting and the conclusions in the

individual's file, including the:

(1) specific reasons for calling the IDT meeting;

(2) participants in the IDT meeting;

(3) recommendations of the IDT; and

(4) actions as a result of the IDT recommendations.

37.833 Denial of the Request for Services

(a) A person applying for RC services is not eligible if

he does not meet the eligibility requirements in:

(1) §37.804 (relating to Age Eligibility Criteria); (Links to Rule)

(2) §37.805 (relating to Financial Eligibility Criteria);

(3)§37.812 (relating to Functional Eligibility Criteria);

(4)§37.813 (relating to Unmet Need Eligibility Criteria); or

(5)§37.814 (relating to Other Program Eligibility Criteria).

(b) If an individual receiving services requests an increase in services and the request

does not meet program requirements, the DADS case manager may deny the request.

(c) The DADS case manager notifies the individual in writing of the ineligibility or

denial of a service request and the right to appeal the decision in accordance with

§37.837 of this title (relating to Notice of Adverse Action and Right to Appeal).

§37.834 Reduction in Service

(a) DADS may reduce the services an individual is receiving based on a reassessment by

the DADS case manager on the standardized assessment instrument or a review by

Utilization Review.

(b) The DADS case manager notifies the individual in writing of the reduction in services

and the right to appeal the decision in accordance with §37.837 of this title (relating

to Notice of Adverse Action and Right to Appeal).

37.835 Terminations

(a) The DADS case manager terminates RC services when an individual:

(1) dies;

(2) permanently leaves the RC facility;

(3) is admitted to a nursing facility, state school, state hospital, or intermediate care

facility for individuals with an intellectual disability for longer 30 days;

(4) is admitted to a hospital and the hospital stay exceeds 60 days;

(5) is incarcerated for longer than 30 days;

(6) no longer meets eligibility requirements:

(7) requests service termination;

(8) has repeatedly refused to allow RC services to be delivered according to RC

program requirements in §37.831 of this chapter (relating to Required Notifications from

the Facility), except in an involuntary protective services case;

(9) has refused to comply with the service delivery provisions and the issue cannot be

resolved in accordance with §37.829 of this chapter, (relating to Required Notifications

from the Facility);

(10) has threatened the health and safety of others and the issue cannot be resolved in

accordance with §37.830 of this chapter (relating to Required Immediate Suspension and

Crisis Intervention); or

(11) moves to a location where services cannot be provided under the RC Program.

(b) The DADS case manager notifies the individual in writing of the termination of

services and the right to appeal the decision in accordance with §37.837 of this

chapter (relating to Notice of Adverse Action and Right to Appeal).

(c) Services do not continue during the appeal process, if services were terminated in

accordance with§37.835 (a)(10) of this chapter (relating to Terminations).

37.836 Reinstatement of Services After Termination for Non-Compliance or

Threats to Health and Safety

(a) If an individual who was previously terminated for failure to comply with RC

Program requirements in §37.831 of this chapter (relating to Required Notifications from

the Facility) reapplies for services, the individual must agree to comply with the RC

program requirements and with DADS staff and RC provider staff to facilitate service

delivery, if determined eligible for services.

(b) If an individual, who was previously terminated in any DADS program due to threats

to health or safety, reapplies for services, the individual must provide proof to the DADS

case manager that the issue resulting in the previous denial of services has been resolved

and there is no longer a threat to the health and safety of others. This documentation must

be submitted prior to being assessed for program eligibility and within 30 calendar days

of the request for documentation. DADS may require the individual to:

(1) furnish a letter signed and dated by a licensed or certified physician, psychiatrist,

or psychologist, stating:

(A) he has been treated or is receiving treatment and is no longer a threat to

himself or others; or

(2) sign a DADS form authorizing release of information, and allow a collateral

contact with his licensed or certified physician, psychiatrist, or psychologist. The contact

must provide information that the applicant has been treated or is receiving treatment and

the applicant is no longer a threat to himself or others.

(c) After receiving the required confirmation that the individual is no longer a threat to

the health and safety of himself or others, the DADS case manager proceeds with the

application process and assessment for program eligibility.

(d) If the individual does not provide the required confirmation within the required time

frames, the DADS case manager closes the request for services and no further action is

required.

37.837 Notice of Adverse Action and Right to Appeal

(a) The DADS case manager notifies the individual in writing of any action that denies,

suspends, reduces or terminates services. The DADS case manager sends the notice

of adverse action to the individual at least 12 calendar days before the effective date

of the action, except in situations as described in §37.830, Required Immediate

Suspension and Crisis Intervention.

(b) In situations as described in §37.830 Required Immediate Suspension and Crisis

Intervention, in which services have been suspended, the DADS case manager sends

the written notice of adverse action without advance notice, if the crisis cannot be

resolved.

(c) An individual has the right to appeal any decision that denies, reduces, or terminates

his services and request a fair hearing in accordance with Title I, Texas

Administrative Code (TAC) §357.