SECTION 368.101. Definitions

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) Actively involved person--An individual who has significant, ongoing, and supportive involvement with a designated resident, as determined by the SPT based on the individual's:

(A) observed interactions with the designated resident;

(B) availability to the designated resident for assistance or support when needed; and

(C) knowledge of, sensitivity to, and advocacy for the designated resident's needs, preferences, values, and beliefs.

(3) Acute care hospital--A health care facility in which an individual receives short-term treatment for a severe physical injury or episode of physical illness, an urgent medical condition, or recovery from surgery and:

(A) may include a long-term acute care hospital, an emergency room within an acute care hospital, or an inpatient rehabilitation hospital; and

(B) does not include a stand-alone psychiatric hospital or a psychiatric hospital within an acute care hospital.

(4) Alleged perpetrator--An individual alleged to have committed an act of abuse, neglect, or exploitation of a designated resident.

(5) Business day--Any day except a Saturday, a Sunday, or a national or state holiday listed in Texas Government Code §662.003(a) or (b).

(6) Calendar day--Any day, including weekends and holidays.

(7) CFR--Code of Federal Regulations.

(8) Chemical restraint--A medication used to control a designated resident's behavior or to restrict the designated resident's freedom of movement that is not a standard treatment for the designated resident's medical or psychological condition.

(9) CMS--Centers for Medicare & Medicaid Services.

(10) Competitive employment--Employment in the competitive labor market that is performed on a full-time or part-time basis in an integrated setting and that pays a designated resident:

(A) at or above minimum wage; and

(B) not less than the customary wage and level of benefits paid by an employer to individuals who do not have disabilities performing the same or similar work.

(11) Contract--A written agreement between HHSC and a service provider agency that obligates the service provider agency to provide a service for a designated resident in exchange for payment from HHSC.

(12) Contract area--A geographic area composed of one or more Texas counties as identified in the contract to be served by a service provider agency.

(13) Controlling person--An individual who:

(A) has a controlling ownership interest in a service provider agency;

(B) is a managing employee of a service provider agency;

(C) has been delegated the authority to obligate or act on behalf of a service provider agency;

(D) is an officer or director of a corporation that is a service provider agency;

(E) is a partner in a partnership that is a service provider agency;

(F) is a member or manager in a limited liability company that is a service provider agency;

(G) is a trustee or trust manager of a trust that is a service provider agency;

(H) because of a personal, familial, or other relationship with a service provider agency, is in a position of actual control or authority with respect to the service provider agency, regardless of the individual's title.

(14) Critical incident--An event that:

(A) involves a designated resident;

(B) occurs during the provision of IHSS; and

(C) may involve:

(i) a serious injury;

(ii) a medication error;

(iii) a restraint;

(iv) an emergency room visit, hospitalization, or call to 911 for a medical or psychiatric emergency;

(v) an arrest;

(vi) an unauthorized departure;

(vii) an allegation or confirmation of abuse, neglect, or exploitation; or

(viii) a death.

(15) Day Activity and Health Services program--A program defined in Texas Human Resources Code §103.003(2).

(16) DD--Developmental disability. A disability that meets the criteria described in the definition of "persons with related conditions" in 42 CFR §435.1010.

(17) Designated resident--An individual:

(A) whose PE or resident review is positive for ID or DD;

(B) who is at least 21 years of age;

(C) who is a Medicaid recipient; and

(D) who is a resident or has transitioned to the community from a NF within the previous 365 days.

(18) DFPS--The Texas Department of Family and Protective Services.

(19) Exploitation--The illegal or improper act or process of using, or attempting to use, a designated resident or the resources of a designated resident for monetary or personal benefit, profit, or gain.

(20) Habilitation coordination--Assistance for a designated resident residing in a NF to access appropriate specialized services necessary to achieve a quality of life and level of community participation acceptable to the designated resident and LAR.

(21) Habilitation coordinator--An employee of a LIDDA who provides habilitation coordination.

(22) HHSC--The Texas Health and Human Services Commission.

(23) HSP--Habilitation service plan, as defined in §303.102 of this title (relating to Definitions).

(24) ID--Intellectual disability, as defined in 42 CFR §483.102(b)(3)(i).

(25) IDD--Intellectual and developmental disability.

(26) IDD PASRR Handbook--Intellectual and Developmental Disability Preadmission Screening and Resident Review Handbook.

(27) IDT--Interdisciplinary team, as defined in §303.102 of this title.

(28) IHSS--IDD habilitative specialized services, described in §368.201 of this chapter (relating to Description of IHSS).

(29) Individual service provider--An individual, who may be an employee or contractor of the service provider agency, who directly provides an IHSS for a designated resident.

(30) Initial plan of care--The first plan of care for a designated resident developed after an initial IDT meeting.

(31) LAR--Legally authorized representative. An individual authorized by law to act on behalf of a designated resident about a matter described in this chapter and may include the legal guardian or surrogate decision maker.

(32) LIDDA--Local intellectual and developmental disability authority. An entity designated by the executive commissioner of HHSC, in accordance with Texas Health and Safety Code §533A.035.

(33) Local service area--A geographic area, composed of one or more Texas counties as identified in the LIDDA's performance contract to be served by a LIDDA.

(34) Mechanical restraint--A mechanical device, material, or equipment used to control a designated resident's behavior by restricting the ability of the designated resident to freely move part or all of the designated resident's body.

(35) MI--Mental illness. Serious mental illness, as defined in 42 CFR §483.102(b)(1).

(36) Neglect--A negligent act or omission that caused physical or emotional injury or death to a designated resident or placed a designated resident at risk of physical or emotional injury or death.

(37) NF--Nursing facility. A Medicaid-certified facility that is licensed in accordance with the Texas Health and Safety Code Chapter 242.

(38) NF baseline care plan--A baseline care plan developed in accordance with 26 TAC §554.802(a) (relating to Comprehensive Person-Centered Care Planning).

(39) NF comprehensive care plan--A comprehensive care plan, defined in 26 TAC §554.2703(3) (relating to Definitions).

(40) PASRR--Preadmission screening and resident review. A federal requirement in 42 CFR Part 483, Subpart C.

(41) PE--PASRR level II evaluation. A face-to-face evaluation:

(A) of an individual seeking admission to a NF who is suspected of having MI, ID, or DD; and

(B) performed by a LIDDA, local mental health authority, or local behavioral health authority to determine if the individual has MI, ID, or DD and, if so, to:

(i) assess the individual's need for care in a NF;

(ii) assess the individual's need for specialized services; and

(iii) identify alternate placement options.

(42) Physical abuse--Any of the following:

(A) an act or failure to act performed knowingly, recklessly, or intentionally, including incitement to act, that caused physical injury or death to a designated resident or placed a designated resident at risk of physical injury or death;

(B) an act of inappropriate or excessive force or corporal punishment, regardless of whether the act results in a physical injury to a designated resident;

(C) the use of a restraint on a designated resident not in compliance with federal and state laws and rules; or

(D) seclusion.

(43) Physical restraint--Any manual method used to control a designated resident's behavior, except for physical guidance or prompting of brief duration that a designated resident does not resist, that restricts:

(A) the free movement or normal functioning of all or a part of the designated resident's body; or

(B) normal access by a designated resident to a portion of the designated resident's body.

(44) Plan of care--A written plan that includes:

(A) the IHSS required by the NF baseline or comprehensive care plan;

(B) the frequency, amount, and duration of each IHSS to be provided for the designated resident during a plan year; and

(C) the services and supports to be provided for the designated resident through resources other than PASRR.

(45) Plan year--A 12-month period starting on the date of the initial or annual IDT meeting. A revised or transfer plan of care does not change the begin or end date of a plan year.

(46) Renewal plan of care--A plan of care developed for a designated resident in accordance with §368.302(a) of this chapter (relating to Renewal and Revision of a Plan of Care).

(47) Restraint--Any of the following:

(A) a physical restraint;

(B) a mechanical restraint; or

(C) a chemical restraint.

(48) Revised plan of care--An initial or renewal plan of care that is revised during a plan year in accordance with §368.302(b) of this chapter to add a new IHSS or change the frequency, amount, or duration of an existing IHSS.

(49) Seclusion--The involuntary placement of a designated resident alone in an area from which the designated resident is prevented from leaving.

(50) Service provider agency--An entity that has a contract with HHSC to provide IHSS for a designated resident.

(51) Sexual abuse--Any of the following:

(A) sexual exploitation of a designated resident;

(B) non-consensual or unwelcomed sexual activity with a designated resident; or

(C) consensual sexual activity between a designated resident and an individual service provider, staff member, volunteer, or controlling person, unless a consensual sexual relationship with an adult designated resident existed before the individual service provider, staff member, volunteer, or controlling person became an individual service provider, staff member, volunteer, or controlling person.

(52) Sexual activity--An activity that is sexual in nature, including kissing, hugging, stroking, or fondling with sexual intent.

(53) Sexual exploitation--A pattern, practice, or scheme of conduct against a designated resident that can reasonably be construed as being for the purposes of sexual arousal or gratification of any individual:

(A) which may include sexual contact; and

(B) does not include obtaining information about a designated resident's sexual history within standard accepted clinical practice.

(54) SPT--Service planning team, as defined in §303.102 of this title.

(55) Staff member--An employee or contractor of a service provider agency.

(56) Surrogate decision maker--An actively involved person who has been identified by an IDT in accordance with Texas Health and Safety Code §313.004 and who is available and willing to consent to medical treatment on behalf of the designated resident.

(57) TAC--Texas Administrative Code.

(58) TMHP--Texas Medicaid and Healthcare Partnership.

(59) Transfer plan of care--An initial or renewal plan of care that is revised during a plan year in accordance with §368.501 of this chapter (relating to Transfer between Service Provider Agencies) to change the service provider agency selected by the designated resident or LAR.

(60) Transition plan--A plan, defined in §303.102 of this title.

(61) Vendor hold--A temporary suspension of payments that are due to a service provider agency under a contract.

(62) Verbal or emotional abuse--Any act or use of verbal or other communication, including gestures:

(A) to:

(i) harass, intimidate, humiliate, or degrade a designated resident; or

(ii) threaten a designated resident with physical or emotional harm; and

(B) that:

(i) results in observable distress or harm to the designated resident; or

(ii) is of such a serious nature that a reasonable individual would consider it harmful or a cause of distress.

(63) Volunteer--An individual who works for a service provider agency without compensation, other than reimbursement for actual expenses.

Source Note: The provisions of this §368.101 adopted to be effective September 1, 2021, 46 TexReg 4151