SECTION 259.205. Residential Agreements, Requirements for Provider-Controlled Residential Settings, and Support Family Agency and Continued Family Agency Functions

(a) During a service planning team meeting to develop an enrollment, a revised, or a renewal IPC and IPP, a case manager must inform an individual or LAR of the following if the individual is interested in receiving SFS or CFS:

(1) that if the individual or LAR selects SFS or CFS, the individual or LAR will be responsible for paying room and board in accordance with a residential agreement described in subsections (b) and (c) of this section;

(2) that if the individual or LAR does not pay room or board as required by a residential agreement, the individual's support family may evict the individual in accordance with the residential agreement and state law; and

(3) that if the individual is evicted by a support family and the individual or LAR has not paid the delinquent room or board, HHSC will deny the individual SFS or CFS until the individual or LAR pays the delinquent room or board.

(b) An individual's support family agency or continued family agency must ensure that an individual receiving SFS or CFS has a written residential agreement with the support family.

(c) The residential agreement required by subsection (b) of this section must include:

(1) the physical address of the residence;

(2) the name of the individual;

(3) the name of the support family;

(4) the beginning date of the residential agreement;

(5) the date the residential agreement expires;

(6) a provision that:

(A) the support family and the individual or LAR agree that the residential agreement is a "lease," as defined in Texas Property Code Chapter 92 and that they are subject to state law governing residential tenancies, including Texas Property Code Chapters 24, 91, and 92 and Texas Rules of Civil Procedure Rule 510; and

(B) to the extent allowed by law, in the event of a conflict or inconsistency between any provision of the residential agreement and any provision of state statutory law, including Texas Property Code Chapters 91 and 92, the provision in the residential agreement governs;

(C) the individual or LAR is not waiving any right or remedy provided to tenants under state law, including the Texas Fair Housing Act in Texas Property Code Chapter 301, and is not agreeing to any notice period that is shorter than the notice period to which tenants are entitled under state law;

(D) allows the individual or LAR to terminate the residential agreement before its expiration date without any obligation under the residential agreement except an obligation that accrued before the date of termination, if the individual permanently moves from the residence for any reason, including transferring to a different support family agency or continued family agency;

(E) the support family agrees to refund to the individual or LAR an amount for room and board paid to the support family for the days that the individual was away from the residence because the individual permanently moved from the residence using the following formula to determine the daily amount for room and board (the monthly amount for room and board divided by the number of days in the month);

(F) the individual may furnish and decorate the individual's bedroom;

(G) the support family agrees to be responsible for all repairs to the residence of the support family, including the support family's real property or personal property, resulting from normal wear and tear, as defined in Texas Property Code §92.001;

(H) that allows eviction of the individual only if:

(i) the individual or LAR fails to pay room or board, which does not include any late fee; or

(ii) the individual's CLASS Program services are terminated;

(I) the support family will, before giving the individual or LAR a notice to vacate, give the individual or LAR a notice of proposed eviction that allows the individual or LAR at least 60 calendar days to pay the delinquent room or board;

(J) if the individual or LAR pays the delinquent room or board within the period required by subparagraph (I) of this paragraph, the support family will not give the individual or LAR a notice to vacate or otherwise proceed to evict the individual; and

(K) the support family will not accelerate the entire balance of the unpaid room or board owed under the remainder of the term of the residential agreement if the individual or LAR violates the residential agreement and the violation does not result in an eviction;

(7) the amount the individual or LAR is paying for room and board;

(8) the day of the month that the amount for room and board is due, which will not be before the day of the month that an individual receives a primary source of income, such as supplemental security income and social security disability insurance;

(9) the amount of a late fee, if any, which may be charged only once per month and will not exceed 10 percent of the amount for room and board, that the support family may charge the individual or LAR if room and board is not paid by the third day after it is due;

(10) the signature of the support family; and

(11) the signature of the individual or the LAR.

(d) A support family must:

(1) give the individual or LAR at least three calendar days to review, request changes, and sign the residential agreement;

(2) ensure the residential agreement is fully executed before the individual begins living in a residence in which SFS or CFS is provided, except that an individual may begin living in one of these residences before a residential agreement is fully executed in the event of an emergency;

(3) if an individual begins living in a residence in which SFS or CFS is provided before a residential agreement is fully executed because of an emergency, as allowed by paragraph (2) of this subsection:

(A) document the details of the emergency; and

(B) ensure the residential agreement is fully executed within seven calendar days after the individual begins living in the residence; and

(4) provide one copy of the residential agreement to the individual or LAR within three business days after the date the residential agreement is fully executed.

(e) If a support family agency or continued family agency becomes aware that a modification to the provision in the residential agreement that the individual may furnish and decorate the individual's bedroom is needed based on a specific assessed need of the individual, the support family agency or continued family agency must:

(1) notify the case manager of the needed modification; and

(2) provide the case manager with the information described in subsection (n) of this section as requested by the case manager.

(f) If an individual or LAR is delinquent in payment of room or board and the support family wants to evict the individual, the support family agency or continued family agency must:

(1) notify the case manager that the individual or LAR is delinquent in the payment of room or board under the residential agreement and that the support family wants to evict the individual;

(2) after providing the notification required by paragraph (1) of this subsection, meet with the individual or LAR, including the representative payee if one has been appointed by the Social Security Administration, and the case manager to discuss the alleged non-payment of room or board and options to prevent an eviction; and

(3) if the support family intends to proceed to evict the individual at the meeting required by paragraph (2) of this subsection:

(A) give the individual or LAR a written notice of proposed eviction that allows the individual or LAR at least 60 calendar days to pay the delinquent room or board; and

(B) provide the case manager with a copy of the written notice of proposed eviction.

(g) If an individual or LAR pays the delinquent room or board within the period required by subsection (f)(3) of this section, the support family must not give the individual or LAR a notice to vacate or otherwise proceed to evict the individual.

(h) If an individual or LAR does not pay the delinquent room or board within the period required by subsection (f)(3) of this section, the support family agency or continued family agency:

(1) must report the failure to pay to one of the following, as appropriate:

(A) the Social Security Administration;

(B) the probate court that appointed the individual's guardian; or

(C) DFPS as an allegation of the LAR's exploitation or neglect of the individual;

(2) must meet with the individual or LAR and the case manager to discuss alternative living settings for the individual; and

(3) if the support family wants to proceed to evict the individual, the support family must:

(A) give the individual or LAR a written notice to vacate the residence in accordance with the residential agreement and state law; and

(B) send a copy of the written notice described in subparagraph (A) of this paragraph to the individual's case manager within one business day after the individual or LAR is given the notice.

(i) If an individual is evicted by a support family and the individual or LAR has not paid the delinquent room or board, the case manager must convene a meeting or meetings to update the IPC and IPP as described in §259.79(c) or (d) of this chapter (relating to Renewal and Revision of an IPC). If the individual or LAR wants to keep SFS or CFS on the individual's IPC, the case manager must inform the individual or LAR at the meeting or meetings that HHSC will deny CFS and SFS, if included on the individual's IPC, until the individual pays the delinquent room or board.

(j) If a support family evicts an individual who has an LAR and the LAR fails to arrange an alternative living setting for the individual, the support family agency or continued family agency must report the LAR's failure to DFPS as neglect of the individual and notify the case manager that such a report was made.

(k) If an individual pays the delinquent room or board, a support family agency or continued family agency must, within one business day after the payment, notify the individual's case manager that the individual is no longer delinquent.

(l) In each residence in which a support family agency provides SFS or a continued family agency provides CFS, the support family agency or the continued family agency must ensure that, except as provided in subsection (m) of this section:

(1) an individual has privacy in the individual's bedroom;

(2) an individual has the option not to share a bedroom with a roommate;

(3) an individual sharing a bedroom has a choice of roommates;

(4) a lock is installed on the individual's bedroom door at no cost to the individual and that:

(A) the lock is operable by the individual; and

(B) only the individual, a roommate of the individual, and the support family has keys to the individual's bedroom door;

(5) an individual can furnish and decorate the individual's bedroom;

(6) while in the residence, an individual has the freedom and support:

(A) to control the individual's schedule and activities that are not part of the implementation plan; and

(B) to have access to food at any time;

(7) an individual may have visitors of the individual's choosing at any time; and

(8) the residence is physically accessible and free of hazards to the individual.

(m) If a support family agency or continued family agency becomes aware that a modification to a requirement described in subsection (l)(1) - (7) of this section is needed based on a specific assessed need of an individual, the support family agency or continued family agency must:

(1) notify the case manager of the needed modification; and

(2) provide the case manager with the information described in subsection (n) of this section as requested by the case manager.

(n) A case manager must, if notified in accordance with subsection (e)(1) or (m)(1) of this section, convene a service planning team meeting to update the individual's IPP to include the following:

(1) a description of the specific and individualized assessed need that justifies the modification;

(2) a description of any positive interventions and supports that have been tried but did not work;

(3) a description of any less intrusive methods of meeting the need that have been tried but did not work;

(4) a description of the condition that is directly proportionate to the specific assessed need;

(5) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;

(6) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;

(7) the individual's or LAR's signature on the IPP evidencing informed consent to the modification; and

(8) the support family agency or continued family agency's assurance that the modification will cause the individual no harm.

(o) After the service planning team updates the IPP as required by subsection (n) of this section, the support family may implement the modification.

(p) A support family agency or a continued family agency must provide ongoing recruitment, support, training, and monitoring of SFS or CFS, including:

(1) ensuring that a support family is available to serve an eligible individual;

(2) helping an individual transition from institutional services to SFS;

(3) supporting an individual living with a support family to prevent placement breakdown or admission to an institution;

(4) providing an alternative support family when an individual's placement with a support family is no longer available or appropriate;

(5) establishing a safe and permanent placement for an individual as approved by the service planning team;

(6) training the support family to provide the SFS or CFS the service planning team assigns and as documented on the individual's IPC and IPP; and

(7) monitoring and reporting to the case manager about the individual's placement, as often as needed but at least monthly, as described in §259.211(4) of this division (relating to Ongoing Support) and §259.213 of this division (relating to Monthly Monitoring).

Source Note: The provisions of this §259.205 adopted to be effective January 30, 2023, 48 TexReg 362