SECTION 261.244. Applicant Enrollment in the ICF/MR Program

(a) Except as provided in subsection (b) of this section, only an MRA may request enrollment of an applicant by DADS.

(b) A program provider may request enrollment of an applicant by DADS in accordance with subsection (k) of this section if the applicant:

(1) has received ICF/MR services from a non-state operated facility during the 180 days before the enrollment request; and

(2) is not moving from or seeking admission to a state school or state center.

(c) An MRA must request an applicant's enrollment if:

(1) the program provider selected by the applicant or LAR notifies the MRA in writing that admission to the program provider's facility has been offered to the applicant; and

(2) the applicant or LAR notifies the MRA that the applicant or LAR chooses to accept the admission offered by the program provider.

(d) If an MRA receives the notifications described in subsection (c) of this section, the MRA must comply with §5.159(c) of this title (relating to Assessment of Individual's Need for Services and Supports) including providing an explanation to the applicant or LAR of the services and supports for which the applicant may be eligible. For an applicant under 22 years of age, an MRA must also comply with the following requirements:

(1) Except as provided in paragraphs (2) and (3) of this subsection, before placement of an applicant in a facility, the MRA must inform the LAR:

(A) of the benefits of living in a family or community setting;

(B) that the placement of the applicant is considered temporary; and

(C) that an ongoing permanency planning process is required.

(2) If an MRA is notified of a request for enrollment after the applicant is admitted to the facility, the MRA must provide the information described in paragraph (1) of this subsection to the LAR not later than the 14th working day after the date the MRA is notified of the request for the enrollment, unless this time period is extended by the LAR.

(3) An MRA does not have to comply with paragraph (1) or (2) of this subsection if the applicant has been committed to a facility under Chapter 46B, Code of Criminal Procedure, or Chapter 55, Family Code.

(e) To request an applicant's enrollment, an MRA must, within 15 working days after the MRA receives both notifications described in subsection (c) of this section:

(1) initiate, monitor, and support the processes necessary to obtain a financial eligibility determination for the applicant if Medicaid financial eligibility has not been established;

(2) obtain an ICAP score for the applicant by:

(A) reviewing and endorsing an existing ICAP for the applicant; or

(B) administering the ICAP if an ICAP score for the applicant does not exist, is not available, or is not endorsed by the MRA; and

(3) request or review an LOC determination and LON for the applicant by:

(A) completing and electronically submitting an MR/RC Assessment, if the applicant does not have a current LOC determination; or

(B) reviewing the existing MR/RC Assessment for the applicant if the applicant has a current LOC determination and:

(i) if the MRA does not endorse the existing MR/RC Assessment, completing and electronically submitting a new MR/RC Assessment recommending a revised LOC or LON; or

(ii) if the MRA endorses the existing MR/RC Assessment, notifying the selected program provider in writing that no changes to the current LOC or LON are recommended.

(f) Upon notification of a request for enrollment of an applicant under 22 years of age, an MRA must take or ensure that the following actions are taken to conduct permanency planning:

(1) The MRA must convene a permanency planning meeting with the LAR and, if possible, the applicant before admission or, if notified of a request for enrollment after the applicant's admission, not later than the 14th working day after the date the MRA is notified of the request.

(2) Before the permanency planning meeting, the MRA staff must review the applicant's records and, if possible, meet the applicant.

(3) During the permanency planning meeting, the meeting participants must discuss and choose one of the following goals:

(A) for an applicant under 18 years of age:

(i) to live in the applicant's family home where the natural supports and strengths of the applicant's family are supplemented, as needed, by activities and supports provided or facilitated by the MRA or program provider; or

(ii) to live in a family-based alternative in which a family other than the applicant's family:

(I) has received specialized training in the provision of support and in-home care for an individual under 18 years of age with mental retardation;

(II) will provide a consistent and nurturing environment in a family home that supports a continued relationship with the applicant's family to the extent possible; and

(III) if necessary, will provide an enduring, positive relationship with a specific adult who will be an advocate for the applicant; or

(B) for an applicant 18-22 years of age, to live in a setting chosen by the applicant or LAR in which the applicant's natural supports and strengths are supplemented by activities and supports provided or facilitated by the MRA or program provider, and to achieve a consistent and nurturing environment in the least restrictive setting, as defined by the applicant and LAR.

(4) To accomplish the goal chosen in accordance with paragraph (3) of this subsection, the meeting participants must discuss and identify:

(A) the problems or issues that led the applicant or LAR to request admission to a facility;

(B) the applicant's daily support needs;

(C) for an applicant under 18 years of age:

(i) barriers to having the applicant reside in the family home;

(ii) supports that would be necessary for the applicant to remain in the family home; and

(iii) actions that must be taken to overcome the barriers and provide the necessary supports;

(D) for an applicant 18-22 years of age, the barriers to the applicant moving to a consistent and nurturing environment as defined by the applicant and LAR;

(E) the importance for the applicant to live in a long-term nurturing relationship with a family;

(F) alternatives to the applicant living in an institutional setting;

(G) the applicant's and LAR's need for information and preferences regarding those alternatives;

(H) how, after admission to the facility, to facilitate regular contact between the applicant and the applicant's family, and, if desired by the applicant and family, between the applicant and advocates and friends in the community to continue supportive and nurturing relationships;

(I) natural supports and family strengths that will assist in accomplishing the identified permanency planning goal;

(J) activities and supports that can be provided by the family, MRA, or program provider to achieve the permanency planning goal;

(K) assistance needed by the applicant's family:

(i) in maintaining a nurturing relationship with the applicant; and

(ii) preparing the family for the applicant's eventual return to the family home or move to a family-based alternative; and

(L) action steps, both immediate and long term, for achieving the permanency plan goal.

(5) The MRA must make reasonable accommodations to promote the participation of the LAR in a permanency planning meeting, including:

(A) conducting a meeting in person or by telephone, as mutually agreed upon by the MRA and LAR;

(B) conducting a meeting at a time and, if the meeting is in person, at a location that is mutually agreed upon by the MRA and LAR;

(C) if the LAR has a disability, providing reasonable accommodations in accordance with the Americans with Disabilities Act, including providing an accessible meeting location or a sign language interpreter, if appropriate; and

(D) providing a language interpreter, if appropriate.

(6) The MRA must develop a permanency plan using, as appropriate:

(A) the Permanency Planning Instrument for Children Under 18 Years of Age; or

(B) the Permanency Planning Instrument for Individuals 18-22 Years of Age.

(7) The MRA must:

(A) complete the Permanency Planning Review Screen in CARE before an applicant is admitted to a facility unless the MRA is not given prior notice of the admission;

(B) keep a copy of the Permanency Planning Review Approval Status View Screen from CARE in the applicant's record; and

(C) provide a copy of the permanency plan to the program provider, the applicant, and the LAR.

(g) If an applicant is under 22 years of age, the MRA must inform the applicant and LAR that they may request a volunteer advocate to assist in permanency planning. The applicant or LAR may:

(1) select a person who is not employed by or under contract with the MRA or a program provider; or

(2) request the MRA to designate a volunteer advocate.

(h) If an applicant or LAR requests that the MRA designate a volunteer advocate or the MRA cannot locate the LAR, the MRA must attempt to designate a volunteer advocate to assist in permanency planning who is, in order of preference:

(1) an adult relative who is actively involved with the applicant;

(2) a person who:

(A) is part of the applicant's natural support network; and

(B) is not employed by or under contract with the MRA or a program provider; or

(3) a person or a child advocacy organization representative who:

(A) is knowledgeable about community services and supports;

(B) is familiar with the permanency planning philosophy and processes; and

(C) is not employed by or under contract with the MRA or a program provider.

(i) If the MRA is unable to locate a volunteer advocate locally, the MRA must request assistance from a statewide advocacy organization in identifying an available volunteer advocate who meets the requirements described in subsection (h) of this section. If the statewide advocacy organization is unable to assist the MRA in identifying a volunteer advocate, the MRA must document all efforts to designate a volunteer advocate in accordance with subsection (h) of this section.

(j) If DADS notifies an MRA that it has authorized an applicant's LOC, the MRA must immediately notify the applicant or LAR of such authorization and provide the selected program provider with copies of all enrollment documentation and associated supporting documentation including relevant assessment results and recommendations and the applicant's ICAP booklet and, if available, the applicant's service plan.

(k) To request an applicant's enrollment as permitted by subsection (b) of this section, a program provider must ensure that the applicant has a current LOC.

(1) If an applicant does not have a current LOC, the program provider must complete and electronically submit an MR/RC Assessment to DADS.

(2) If the program provider submits an MR/RC Assessment, DADS notifies the program provider electronically if the LOC is authorized or sends written notification to the program provider and the applicant or LAR if the LOC is denied.

(l) An applicant's enrollment is complete if:

(1) DADS has authorized an LOC for the applicant;

(2) the Social Security Administration has determined that the applicant is eligible for SSI or the Health and Human Services Commission determines the applicant is financially eligible for Medicaid;

(3) the program provider has electronically submitted a completed Client Movement Form to DADS; and

(4) admission to the facility has been approved by the DADS commissioner or designee for the applicant who is under 22 years of age, based on information submitted as described in subsection (f) of this section.

(m) A program provider must maintain a paper copy of the completed MR/RC Assessment with all the necessary signatures and documentation supporting the recommended LOC and LON.

Source Note: The provisions of this §261.244 adopted to be effective September 1, 2001, 26 TexReg 5384; amended to be effective March 31, 2002, 27 TexReg 2475; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841; amended to be effective September 1, 2006, 31 TexReg 6795; transferred effective October 1, 2020, as published in the Texas Register August 28, 2020, 45 TexReg 6127