Community Care for Aged and Disabled Chapter 37

DRAFT PROPOSED RULES FOR CHAPTER 37:

COMMUNITY CARE FOR AGED AND DISABLED SERVICES

SUBCHAPTER A

ADULT FOSTER CARE

SUBCHAPTER A – ADULT FOSTER CARE

§37.101. Purpose §37.102. Definitions §37.103. Service Array §37.104. Age Eligibility Criteria §37.105. Financial Eligibility Criteria §37.106. Income Limits §37.107. Countable Income §37.108. Income Exclusions §37.109. Exempt Income §37.110. Resource Limits §37.111. Countable Resources §37.112. Resource Exclusions §37.113. Functional Eligibility Criteria §37.114. Unmet Need Criteria §37.115. Additional Program Eligibility Criteria §37.116. Request for Services §37.117. AFC Interest List §37.118. Bypass Criteria and Presumptive Eligibility §37.119. Assessment Process §37.120. Service Plan Development

§37.121. Certification and Authorization

§37.122 Personal Needs Allowance in Determining Room and Board

§37.123 Personal Leave and Bedhold Charges

§37.124 Monitoring

§37.125 Changes

§37.126 Reassessment

§37.127 Required Service Suspensions

§37.128 Required Immediate Suspension and Crisis Intervention

§37.129 Optional Service Suspensions

§37.130 Interdisciplinary Team (IDT)

§37.131 Denial of the Request for Services

§37.132 Reduction in Service

§37.133 Terminations

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

Threats to Health and Safety

§37.135 Notice of Adverse Action and Right to Appeal

CHAPTER 37

SUBCHAPTER A ADULT FOSTER CARE

37.101 Purpose

(a) This chapter establishes the eligibility requirements and provides information for a

person to receive Adult Foster Care services through the Department of Aging and

Disability Services (DADS).

(b) Adult Foster Care (AFC) provides a 24-hour living arrangement in a DADS

contracted foster home for persons who, because of physical, mental or emotional

limitations, are unable to continue independent functioning in their own homes.

(c) Providers of AFC must live in the household and share a common living area with the

individual. Detached living quarters do not constitute a common living area. The

individual enrolled to provide AFC must be the primary caregiver. Providers may serve

up to three adults in a DADS-enrolled AFC home without licensure as a personal care

home. Providers may serve up to four adults with a Type C assisted living license or up to

eight adults with an Assisted Living Type A, Small, assisted living license. Adult foster

care services are provided under Title XX of the Social Security Act.

37.102 Definitions

ADL – Activities of daily living. An activity that is essential to daily self-care, including

bathing, dressing, grooming, routine hair and skin care, meal preparation, feeding,

exercising, toileting, transferring, and ambulation. An ADL does not include a service

that must be provided or supervised by licensed personnel.

Applicant - A person who is applying for DADS services.

Business Days – Any day except a Saturday, Sunday, or legal holiday listed in Texas

Government Code, §662.021.

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.

Case manager -- A DADS employee who is responsible for case management activities.

Activities include eligibility determination, individual registration, assessment and

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

intercession on the individual's behalf.

CFR – Code of Federal Regulations

Contract--The formal, written agreement between DADS and a provider to provide AFC

program services to an individual eligible under this chapter in exchange for

reimbursement.

Contract manager--A DADS employee who is responsible for the overall management of

the contract with the provider.

DADS – Department of Aging and Disability Services

Days – Calendar days unless otherwise specified.

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.

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.

Functional Limitation – An individual's degree of difficulty in performing one or more

ADLs caused by a physical limitation or disability.

Functional Need- The tasks and services identified by the individual that will require

assistance.

Incarcerated – To be confined to a jail or prison.

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

DADS services.

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.

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.

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.

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.

Medicaid Eligible – An individual eligible for federal assistance through

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

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

Commission for full Medicaid benefits.

Person - An individual that has not applied for and is not receiving DADS services.

Personal leave - Any leave from the adult foster care home except for hospitalization or

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

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

representative, or legally authorized representative.

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.

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.

U. S. C. – United States Code

37.103 Service Array

(a) Adult foster care services provide:

(1) Resident care and services. Adult Foster Care provides services to residents

according to the individual service plan and the agreement between the individual and the

provider;

(2) Personal care. Adult Foster Care provides assistance 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:

(A) bathing; (B) dressing; (C) grooming; (D) routine hair and skin care; (E) exercising; (F) feeding; (G) toileting; (H) medication administration, except injections; (I) transferring/ambulating, and (J) twenty-four-hour supervision.

(3) Nutrition. Adult Foster Care:

(A) provides a resident with at least three meals daily which meet each resident's

dietary and nutritional needs;

(B) considers a resident's food preferences and make reasonable accommodations

within his dietary needs;

(C) serves a variety of foods, within the resident's dietary needs; and

(D) follows special diets as prescribed in writing by the resident's physician.

(4) Medications. The Adult Foster Care provider must ensure that a resident takes over-

the-counter medications according to the package directions and ensure that all

medications are taken as prescribed and in a timely manner according to the instructions

on the medication label or instructions from the resident's physician. The adult foster care

provider may administer medications only as allowed by state law or regulation.

(5) Transportation. Adult Foster Care provides or makes arrangements to meet the

transportation needs of a resident for medical appointments, shopping for personal needs,

and church activities. An escort must also be provided if specified in the individual

service plan for a resident.

37.104 Age Eligibility Criteria

To be eligible for AFC, a person must be 18 years of age or older, or an emancipated

minor.

37.105 Financial Eligibility Criteria

To be financially eligible for AFC, 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.

37.106 Income Limits

(a) For sections §37.106 through §37.109, 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).

37.107 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 §37.108 and §37.109 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.

37.108 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 and from place of business;

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

(G) net loss from previous determination period.

37.109 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) 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 and 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 in 20 CFR Part 416 (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}

37.110 Resource Limits

To be eligible for Adult foster 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.

37.111 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 Adult Foster 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.

37.112 Resource Exclusions

(a) In determining eligibility for Adult Foster 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 under an installment contract from mortgages, notes, or loans. DADS

excludes the value of property if under a contract for installment payments and the

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

of the agreement. Even though 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. Replacement value of an excluded

resource if it is lost, damaged, or stolen. The cash received from an insurance company

for replacing the resource is not considered for three months if it is real property. Any

cash not spent within the specified time period is considered a resource;

(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.

37.113 Functional Eligibility Criteria

To be eligible for Adult foster 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.

37.114 Unmet Need Eligibility Criteria

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

based on the standardized assessment instrument.

37.115 Additional Program Eligibility Criteria

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

for AFC,

(a) a person must:

(1) not have inappropriate characteristics for placement in the adult foster care home

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

needs must not exceed the provider’s capability to provide care.

(2) pay for room and board as agreed in the individual and provider agreement. The

individual is responsible for paying this amount directly to the AFC provider.

(3) obtain approval from the Community Care for Aged and Disabled unit supervisor

to be placed in AFC.

37.116 Request for Services (a) A request for AFC 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.

37.117 AFC Interest List

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

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

options for meeting the individual’s needs.

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

(c) DADS releases an individual 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 individual released from the interest list to

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

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

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

37.118 Bypass Criteria and Presumptive Eligibility

(a) In some situations, an individual may meet the criteria to bypass the interest list and

begin receiving services with DADS Regional Director approval. The criteria for an

immediate or expedited intake are:

(1) unable to continue independent living or have no caregiver who is able to provide a

home; or

(2) a referral by Adult Protective Services (AFC). The DADS regional contract

manager must approve placement of APS individuals.

(b) The regional director or his designee makes the final decision on whether an

individual is approved to bypass the interest list will be made by. Releasing a name from

the interest list and offering services to an individual is subject to available regional funds

and slots.

(c) An applicant who is approved to bypass the interest list is eligible to receive AFC

services while DADS verifies income and resources if the applicant:

(1) is a new applicant for services;

(2) appears to be financially eligible based on the declaration of income and resources

on his application for services; and

(3) meets the age and need criteria for AFC services.

(d) the applicant must provide the necessary verifications of income and resources within

30 days after the application date to continue receiving services.

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

for Adult Foster Care. DADS schedules an initial interview by telephone or in writing to

take place in the person’s home, if possible.

(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 of the intake date, the DADS case manager closes the request for services and sends a denial notice to the applicant.

37.120 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, priority level 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 AFC services in his service

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

can:

(1) select the AFC home, or

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

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

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

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

home.

37.121 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:

(1) arranges on or before the date the individual moves into the AFC home, a meeting

with the individual and the AFC provider to discuss the individual’s care plan and to

complete the individual and provider agreement.

(A) The individual’s personal representative may be included in the meeting and

the meeting should preferably take place in the AFC home.

(B) The meeting must include:

(i) discussion of the individual’s needs and care plan as indicated on the

standardized assessment instrument and agreement on how the individual’s

needs should be met through daily care and activities. This includes

documenting any special needs of the individual or special agreements between

the individual and the provider.

(ii) completion of the individual and provider agreement including

agreement on the room and board charges and bedhold charges as well as any

other agreements between the individual and the provider in accordance with

§37.122 of this chapter (relating to Personal Needs Allowance in Determining

Room and Board) and §37.123 of this chapter (relating to Bedhold Charges).

(2) negotiates a move-in date with the individual and the AFC provider;

(3) sends the provider the final authorization for AFC on the DADS authorization

for community care services form; and

(4) sends the applicant written notification of eligibility for AFC.

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

written notification of ineligibility for AFC.

37.122 Personal Needs Allowance in Determining Room and Board

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

(1) Individuals with Medicaid coverage must be allowed to keep at least $50 a month

for personal needs.

(2) Individuals without Medicaid coverage must be allowed to keep at least $85 a

month for personal needs and medical expenses.

(3) All individuals must be allowed to keep at least one-half of any cost-of-living

adjustment.

(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.

(b) If the individual has a change in income or expenses, he or the provider may request a

change in the amount of room and board payment. Changes in the room and board

payment are negotiated between the individual and the provider and are documented on

the DADS room and board amendment to the individual and provider agreement.

(c) The individual’s contribution to the cost of care when added to the DADS payment

may not exceed the DADS rate established for adult foster care,

37.123 Personal Leave and Bedhold Charges

(a) The individual is eligible for 14 days of personal leave from the adult foster care

home each calendar year. DADS pays the daily rate for up to 14 days of leave for each

12-consecutive-month period when an authorized individual is away from the foster

home. Payment for leave in excess of 14 days per year is the responsibility of the

individual.

(b) Bedhold charges are negotiated between the individual and provider in the room and

board agreement. Bedhold charges may not exceed the daily room and board rate.

(c) The adult foster care provider is responsible for notifying the case manager when the

individual is away from the foster home for personal leave or hospitalization.

37.124 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.

37.125 Changes

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

changes that may affect eligibility in accordance with §37.104, §37.105, §37.106,

§37.110, §37.113, §37.114, and §37.115 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 or hours authorized based on changes in

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

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

changes in accordance with §48.8907 of this title (regarding Provider Responsibilities)

{ADD LINK}

(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 §37.120 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 §37.135 of this chapter (relating to Notice of Adverse

Action and Right to Appeal).

37.126 Reassessment

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

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

manager must make a face-to-face contact with the individual in the adult foster care

home.

(1) The DADS case manager completes the standardized assessment instrument and

the DADS assessment and service plan form for Adult Foster Care to determine if the

individual continues to be appropriate for foster care placement.

(2) If the individual is no longer appropriate for adult foster care and his needs can no

longer be met in the home, the case manager discusses alternative living

arrangements with the individual and the individual’s personal representative.

(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 §37.104, §37.105, §37.106, §37.110, §37.113, §37.114 and §37.115 of

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

(d) An individual who does not meet all eligibility requirements is not eligible. The

DADS case manager terminates services and sends a written notice in accordance with

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

37.127 Required Service Suspensions

(a) The Adult foster care provider suspends services if an individual:

(1) permanently leaves the contracted service delivery area;

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

(3) dies;

(4) is admitted to an institution, as defined in §37.133 of this chapter (relating to

Terminations); or

(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 37.133 of this chapter

(relating to Terminations).

37.128 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 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;

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

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

(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 Adult Protective Services

(APS) or other appropriate agencies; or

(2) local law enforcement, if appropriate.

(c) If the provider is asking the individual to move immediately from the AFC home, the

DADS case manager must make every effort to locate another living arrangement as soon

as possible. If other living arrangements are not readily available for the individual, refer

to APS to assist in locating appropriate placement for the individual.

(d) If the individual can remain in the home, 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 §37.130 of this title (relating to

Interdisciplinary Team).

(e) If the issue cannot be resolved, the DADS case manager must make every effort to

locate another living arrangement as soon as possible. If other living arrangements are not

readily available for the individual, the DADS case manager refers to APS to assist in

locating appropriate placement for the individual.

(f) The DADS case manager must notify the individual of the termination of services and

the right to appeal the decision in accordance with §37.133 of this title (relating to

Terminations) and in accordance with §37.135 of this title (relating to Notice of Adverse

Action and Right to Appeal). Services do not continue during the appeal process.

37.129 Optional Service Suspensions

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

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

service plan and monitoring of services. The AFC provider must notify the DADS case

manager if:

(1) 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

(2) 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

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

delivery provisions;

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

board) by the agreed due date;

(b ) 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 §37.130 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 continues authorization of AFC 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 §37.133 of this chapter (relating to Terminations)

(c) 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 AFC program

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

requirements.

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

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

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

section (relating to Optional Service Suspensions).

(e) 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 Optional Service Suspensions).

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

AFC program requirements, the DADS case manager:

(1) proceeds with the termination of services in accordance with §37.133 of this

chapter, (relating to Terminations);

(2) provides notification of termination of services and offers the right to appeal.

Services do not continue during the appeal process;

(3) negotiates a time frame with the individual, personal representative and the

adult foster care (AFC) provider for the individual to move. The time frame is determined

on a case-by-case basis depending on the urgency and severity of the situation and how

quickly an appropriate placement can be arranged.

37.130 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 DADS case manager or provider convenes an IDT meeting:

(1) within three working days or sooner as appropriate for the situation, after the date

the provider notifies the DADS case manager issues as described in §37.128 of this

chapter (relating to Required Immediate Suspension and Crisis Intervention); or §37.129

of this chapter (relating to Optional Suspensions); 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 AFC Program.

(c) Requirements of the IDT meeting.

(1) The IDT meeting must be conducted in person.

(2) The IDT must:

(A) evaluate the issue and discuss the AFC 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; and

(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 §37.135

(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 AFC 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 AFC 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.

37.131 Denial of the Request for Services

(a) An individual applying for AFC services is not eligible if he does not meet the

eligibility requirements in:

(1) §37.504 (relating to Age Eligibility Criteria); {ADD Links to Rules}

(2) §37.505 (relating to Financial Eligibility Criteria);

(3) §37.512 (relating to Functional Eligibility Criteria);

(4) §37.513 (relating to Unmet Need Eligibility Criteria); or

(5) §37.514 (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 §37.135 of this

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

§37.132 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.

(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 §37.135 of this title (relating

to Notice of Adverse Action and Right to Appeal).

37.133 Terminations

(a) DADS terminates AFC services when an individual:

(1) dies;

(2) permanently leaves the contracted service delivery area;

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

facility for individuals with an intellectual disability for longer than 60 days;

(4) is admitted to a hospital and the hospital stay exceeds 90 days;

(5) is incarcerated for longer than 60 days;

(6) no longer meets eligibility requirements:

(7) requests service termination;

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

program requirements in §37.129 of this chapter (relating to Optional Service

Suspensions), 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 §37.129 of this chapter, (relating to Optional Service

Suspensions);

(10) has threatened the health and safety of others or failed to maintain an

environment that ensures the health and safety of others and the issue cannot be resolved

in accordance with §37.128 of this chapter (relating to Required Immediate Suspension

and Crisis Intervention); or

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

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

services and the right to appeal the decision in accordance with §37.135 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§37.128 (a)(1) of this chapter (relating to Required Immediate

Suspension and Crisis Intervention).

37.134 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 AFC

Program requirements in §37.129 of this chapter (relating to Optional Service

Suspension) reapplies for services, the individual must agree to comply with the AFC

program requirements and with DADS staff and AFC 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 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.

37.135 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 §37.128, Required Immediate Suspension and

Crisis Intervention.

(b) In situations as described in §37.128, 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.