SECTION 565.11. Service Delivery

(a) The program provider must:

(1) serve an eligible applicant who has selected the program provider unless the program provider's enrollment has reached its service capacity as identified in the Texas Health and Human Services Commission (HHSC) data system;

(2) serve an eligible applicant without regard to age, sex, race, or level of disability;

(3) provide or obtain as needed and without delay all Home and Community-based Services Program (HCS) Program and Community First Choice (CFC) services for an individual;

(4) maintain a system of delivering HCS Program and CFC services that is continuously responsive to changes in the individual's personal goals, condition, abilities, and needs as identified by the service planning team;

(5) ensure that each applicant or individual, or legally authorized representative (LAR), chooses where the individual or applicant will reside from available options consistent with the applicant's or individual's needs;

(6) ensure that an individual's rights as identified in §565.5 of this chapter (relating to Rights of Individuals) are not violated, unless contraindications are documented with justification in a Behavior Support Plan;

(7) notify the service coordinator if a change in an individual's condition necessitates a change in residential, educational, or work settings;

(8) inform appropriate staff members, service providers, and the service coordinator when a circumstance or event occurs in an individual's life or a change to an individual's condition affects the provision of services to the individual;

(9) notify the service coordinator if the program provider has reason to believe that an individual is no longer eligible for HCS Program services or CFC services or an individual or LAR has requested termination of all HCS Program services or all CFC services;

(10) ensure that the individual plan of care (IPC) for each individual:

(A) is renewed or revised in accordance with §263.302 of this title (relating to Renewal and Revision of an IPC); and

(B) is authorized by the Health and Human Services Commission in accordance with §263.303 of this title (relating to HHSC Review of an IPC);

(11) ensure that HCS Program and CFC services identified in the individual's implementation plan and transportation plan are provided in an individualized manner and are based on the results of assessments of the individual's and the family's strengths, the individual's personal goals, the family's goals for the individual, and the individual's needs rather than which services are available;

(12) ensure that each individual's progress or lack of progress toward desired outcomes is documented in observable, measurable, or outcome-oriented terms;

(13) ensure that individuals who perform work for the program provider are paid on the basis of their production or performance and at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work, and that compensation is based on local, state, and federal regulations, including Department of Labor regulations, as applicable;

(14) ensure that individuals who produce marketable goods and services in habilitation training programs are paid at a wage level commensurate with that paid to persons who are without disabilities and who would otherwise perform that work. Compensation is based on requirements contained in the Fair Labor Standards Act, which include:

(A) accurate recordings of individual production or performance;

(B) valid and current time studies or monitoring as appropriate; and

(C) prevailing wage rates;

(15) ensure that individuals provide no training, supervision, or care to other individuals unless they are qualified and compensated in accordance with local, state, and federal regulations, including Department of Labor regulations;

(16) ensure that adaptive aids are provided in accordance with the individual's person-directed plan (PDP), IPC, implementation plan, and Appendix C of the HCS Program waiver application, approved by the Centers for Medicare and Medicaid Services (CMS) and found on the HHSC website, and include the full range of lifts, mobility aids, control switches/pneumatic switches and devices, environmental control units, medically necessary supplies, and communication aids and repair and maintenance of the aids, as determined by the individual's needs;

(17) ensure the coordination and compatibility of HCS Program and CFC services with non-HCS Program services and non-CFC services together with an individual's service coordinator;

(18) ensure that an individual has a current implementation plan;

(19) ensure professional therapies:

(A) are provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website:

(i) audiology services;

(ii) speech/language pathology services;

(iii) occupational therapy services;

(iv) physical therapy services;

(v) dietary services;

(vi) social work services;

(vii) behavioral support; and

(viii) cognitive rehabilitation therapy; and

(B) if the service planning team determines that an individual may need cognitive rehabilitation therapy, the program provider:

(i) in coordination with the service coordinator, assists the individual in obtaining, in accordance with the Medicaid State Plan, a neurobehavioral or neuropsychological assessment and plan of care from a qualified professional as a non-HCS Program service; and

(ii) use a qualified professional as described in §565.7 of this chapter (relating to Staff Member and Service Provider Requirements) to provide and monitor the provision of cognitive rehabilitation therapy to the individual in accordance with the plan of care described in clause (i) of this subparagraph;

(20) ensure that individualized skills and socialization is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(21) ensure that dental treatment is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website including:

(A) emergency dental treatment;

(B) preventive dental treatment;

(C) therapeutic dental treatment; and

(D) orthodontic dental treatment, excluding cosmetic orthodontia;

(22) ensure that minor home modifications are provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website but are limited to the following categories:

(A) purchase and repair of wheelchair ramps;

(B) modifications to bathroom facilities;

(C) modifications to kitchen facilities;

(D) specialized accessibility and safety adaptations or additions; and

(E) repair and maintenance of minor home modifications not covered by a warranty;

(23) ensure that supported home living:

(A) is available only to an individual who is not receiving:

(i) host home/companion care;

(ii) supervised living; or

(ii) residential support; and

(B) is available to an individual who is receiving foster care services from DFPS;

(24) ensure that supported home living is provided in accordance with the individual's PDP, IPC, implementation plan, transportation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(C) providing transportation;

(D) securing transportation;

(E) assisting with housekeeping;

(F) assisting with ambulation and mobility;

(G) reinforcing professional therapy activities;

(H) assisting with medications and the performing tasks delegated by a registered nurse (RN);

(I) supervising of individuals' safety and security;

(J) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(K) habilitation, exclusive of individualized skills and socialization;

(25) ensure that HCS host home/companion care is provided:

(A) by a host home/companion care provider who lives in the residence in which no more than three individuals or other persons receiving similar services are living at any one time; and

(B) in a residence in which the program provider does not hold a property interest;

(26) ensure that host home/companion care is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(C) securing and providing transportation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(27) ensure that supervised living is provided:

(A) in a four-person residence that is approved in accordance with §565.23(i) of this chapter (relating to Residential Requirements) or a three-person residence;

(B) by a service provider who provides services and supports as needed by the individuals residing in the residence and is present in the residence and able to respond to the needs of the individuals during normal sleeping hours; and

(C) only with approval by the HHSC commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC Executive Commissioner after such 12-month period, if provided to an individual under 22 years of age;

(28) ensure that supervised living is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(C) securing and providing transportation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(29) ensure that residential support is provided:

(A) in a four-person residence that is approved in accordance with §565.23(i) of this chapter or in a three-person residence;

(B) by a service provider who is present in the residence and awake whenever an individual is present in the residence;

(C) by service providers assigned on a daily shift schedule that includes at least one complete change of service providers each day; and

(D) only with approval by the HHSC commissioner or designee for the initial six months and one six-month extension and only with approval by the HHSC Executive Commissioner after such 12-month period, if provided to an individual under 22 years of age;

(30) ensure that residential support is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website, and includes the following elements:

(A) direct personal assistance with activities of daily living (grooming, eating, bathing, dressing, and personal hygiene);

(B) assisting with meal planning and preparation;

(C) securing and providing transportation;

(D) assisting with housekeeping;

(E) assisting with ambulation and mobility;

(F) reinforcing professional therapy activities;

(G) assisting with medications and the performance of tasks delegated by an RN;

(H) supervising of individuals' safety and security;

(I) facilitating inclusion in community activities, use of natural supports, social interaction, participation in leisure activities, and development of socially valued behaviors; and

(J) habilitation, exclusive of individualized skills and socialization;

(31) if making a recommendation to the service planning team that the individual receive residential support, document the reasons for the recommendation, which may include:

(A) the individual's medical condition;

(B) a behavior displayed by the individual that poses a danger to the individual or to others; or

(C) the individual's need for assistance with activities of daily living during normal sleeping hours;

(32) ensure that respite is available on a 24-hour increment or any part of that increment to individuals living in their family homes;

(33) ensure that respite is provided in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website; and:

(A) includes:

(i) training in self-help and independent living skills;

(ii) providing room and board when respite is provided in a setting other than the individual's normal residence;

(iii) assisting with:

(I) ongoing provision of needed waiver services; and

(II) securing and providing transportation; and

(B) is only provided:

(i) to individuals who are not receiving residential support, supervised living, or host home/companion care; and

(ii) when the unpaid caregiver is temporarily unavailable to provide supports;

(34) provide respite in the residence of an individual or in other locations, including residences in which host home/companion care, supervised living, or residential support is provided or in a respite facility or camp, that:

(A) meets HCS Program requirements and is an environment that ensures the health and safety of the individual; and

(B) if respite is provided:

(i) in the residence of another individual, the program provider must obtain permission from that individual or LAR and ensure that the respite visit will cause no threat to the health, safety, or welfare of either individual;

(ii) in a respite facility, the program provider must obtain written approval from the local fire authority having jurisdiction stating that the facility and its operation meet the local fire ordinances before initiating services in the facility if more than three individuals receive services in the facility at any one time; or

(iii) in a camp setting, the program provider must ensure the camp is accredited by the American Camp Association;

(iv) in a home and community-based setting, the setting must comply with §263.501(b) of this title (relating to Requirements for Home and Community-Based Settings);

(35) ensure that employment assistance:

(A) is provided to an individual to help the individual locate competitive employment in the community;

(B) consists of a service provider:

(i) identifying an individual's employment preferences, job skills, and requirements for a work setting and work conditions;

(ii) locating prospective employers offering employment compatible with an individual's identified preferences, skills, and requirements;

(iii) contacting a prospective employer on behalf of an individual and negotiating the individual's employment;

(iv) transporting an individual to help the individual locate competitive employment in the community; and

(v) participating in service planning team meetings;

(C) is provided in accordance with an individual's PDP, IPC, implementation plan, and with Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(D) is not provided to an individual with the individual present at the same time that respite, supported home living, individualized skills and socialization, supported employment, or CFC personal assistance services/habilitation (CFC PAS/HAB) is provided; and

(E) does not include using Medicaid funds paid by HHSC to the program provider for incentive payments, subsidies, or unrelated vocational training expenses, such as:

(i) paying an employer:

(I) to encourage the employer to hire an individual; or

(II) for supervision, training, support, or adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(ii) paying an individual:

(I) as an incentive to participate in employment assistance activities; or

(II) for expenses associated with the start-up costs or operating expenses of the individual's business;

(36) ensure that supported employment:

(A) is assistance provided to an individual:

(i) who, because of a disability, requires intensive, ongoing support to be self-employed, work from home, or perform in a work setting at which persons without disabilities are employed;

(ii) in order for the individual to sustain competitive employment; and

(iii) in accordance with the individual's PDP, IPC, implementation plan, and Appendix C of the HCS Program waiver application approved by CMS and found on the HHSC website;

(B) consists of a service provider:

(i) making employment adaptations, supervising, and providing training related to an individual's assessed needs;

(ii) transporting an individual to support the individual to be self-employed, work from home, or perform in a work setting; and

(iii) participating in service planning team meetings;

(C) is not provided to an individual with the individual present at the same time that respite, supported home living, individualized skills and socialization, employment assistance, or CFC PAS/HAB is provided; and

(D) does not include:

(i) sheltered work or other similar types of vocational services furnished in specialized facilities; or

(ii) using Medicaid funds paid by HHSC to the program provider for incentive payments, subsidies, or unrelated vocational training expenses such as:

(I) paying an employer:

(-a-) to encourage the employer to hire an individual; or

(-b-) to supervise, train, support, or make adaptations for an individual that the employer typically makes available to other workers without disabilities filling similar positions in the business; or

(II) paying an individual:

(-a-) as an incentive to participate in supported employment activities; or

(-b-) for expenses associated with the start-up costs or operating expenses of the individual's business;

(37) ensure that CFC PAS/HAB is provided in accordance with the individual's PDP, IPC, and implementation plan;

(38) ensure that CFC support management is provided to an individual or LAR if:

(A) the individual is receiving CFC PAS/HAB; and

(B) the individual or LAR requests to receive CFC support management;

(39) inform the service coordinator of changes related to an individual's residential setting that do not require a change to the individual's IPC;

(40) maintain current information in the HHSC data system about the individual and the individual's LAR, including:

(A) the individual's full name, address, location code, and phone number; and

(B) the LAR's full name, address, and phone number;

(41) maintain a single record related to HCS Program and CFC services provided to an individual for an IPC year that includes:

(A) the IPC;

(B) the PDP and, if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form;

(C) the implementation plan;

(D) a behavior support plan, if one has been developed;

(E) a transportation plan, if one is required;

(F) documentation that describes the individual's progress or lack of progress on the implementation plan;

(G) documentation that describes any changes to an individual's personal goals, condition, abilities, or needs;

(H) the Intellectual Disability/Related Conditions Assessment (ID/RC Assessment);

(I) documentation supporting the recommended level of need, including the Inventory for Client and Agency Planning booklet, assessments and interventions by qualified professionals, and time sheets of service providers;

(J) results and recommendations from individualized assessments that support the individual's current need for each service included in the IPC;

(K) documentation concerning any use of restraint as described in §565.33(a)(2) and (3) of this chapter (relating to Restraints);

(L) documentation related to the suspension of an individual's HCS Program services or CFC services;

(M) for an individual under 22 years of age, a copy of the permanency plan; and

(N) documentation required by subsection §565.17(a)(2) of this subchapter (relating to Pre-enrollment Minor Home Modification) and subsection §565.21(a)(2) of this subchapter (relating to Transitional Assistance Service (TAS));

(42) upon request by the service coordinator:

(A) permit the service coordinator access to the record that is required by paragraph (41) of this subsection; and

(B) provide the service coordinator a legible copy, including an electronic copy, of a document in the record at no charge to the service coordinator;

(43) provide a copy of the following documents to the service coordinator:

(A) an individual's IPC; and

(B) an individual's ID/RC Assessment;

(44) if a physician delegates a medical act to an unlicensed service provider in accordance with Texas Occupations Code Chapter 157, and the program provider has concerns about the health or safety of the individual in performance of the medical act, communicate the concern to the delegating physician and take additional steps as necessary to ensure the health and safety of the individual;

(45) for an individual receiving host home/companion care, residential support, or supervised living, ensure that the individual or LAR is involved in planning the individual's residential relocation, except in the case of an emergency;

(46) for an HCS Program or CFC service identified on the PDP as critical to meeting the individual's health and safety:

(A) develop a service backup plan that:

(i) contains the name of the critical service;

(ii) specifies the time period in which an interruption to the critical service would result in an adverse effect to the individual's health or safety; and

(iii) in the event of a service interruption resulting in an adverse effect, as described in clause (ii) of this subparagraph, describe the actions the program provider will take to ensure the individual's health and safety;

(B) ensure that:

(i) if the action in the service backup plan required by subparagraph (A) of this paragraph identifies a natural support, that the natural support receives pertinent information about the individual's needs and can protect the individual's health and safety; and

(ii) a person identified in the service backup plan, if paid to provide the service, meets the qualifications described in this subchapter; and

(C) if the service backup plan required by subparagraph (A) of this paragraph is implemented:

(i) discuss the implementation of the service backup plan with the individual and the service providers or natural supports identified in the service backup plan to determine whether the plan was effective;

(ii) document whether the plan was effective; and

(iii) revise the plan if the program provider determines the plan was ineffective;

(47) for an applicant 21 years of age or older who is residing in a nursing facility and enrolling in the HCS Program:

(A) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator;

(B) assist in the implementation of the applicant's transition plan as described in the plan; and

(C) be physically present for the pre-move site review and assist the service coordinator during the review as requested; and

(48) for 365 calendar days after an individual 21 years of age or older has enrolled in the HCS Program from a nursing facility or has enrolled in the HCS Program as a diversion from admission to a nursing facility:

(A) be physically present for each post-move monitoring visit and assist the service coordinator during the visit as requested;

(B) assist in the implementation of the individual's transition plan as described in the plan;

(C) participate as a member of the service planning team, which includes attending service planning team meetings scheduled by the service coordinator; and

(D) within one calendar day after becoming aware of an event or condition that may put the individual at risk of admission or readmission to a nursing facility, notify the service planning team of the event or condition.

(b) A program provider may suspend HCS Program services or CFC services because an individual is temporarily admitted to a setting described in §263.705(a) of this title (relating to Suspension of HCS Program Services and CFC Services).

(1) If a program provider suspends HCS Program services or CFC services, the program provider must:

(A) notify HHSC of the suspension by entering data in the HHSC data system in accordance with HHSC instructions; and

(B) notify the service coordinator of the suspension within one business day after services are suspended.

(2) A program provider may not suspend HCS Program services or CFC services for more than 270 calendar days without approval from HHSC as described in §263.705(h) of this title.

Source Note: The provisions of this §565.11 adopted to be effective June 21, 2023, 48 TexReg 3246