SECTION 565.9. Program Provider Requirements

(a) The program provider must ensure the continuous availability of trained and qualified service providers to deliver the required services, as determined by the individual's needs and characteristics.

(b) The program provider must:

(1) comply with 40 Texas Administrative Code (TAC) §49.304 (relating to Background Checks);

(2) comply with 40 TAC §49.312 (relating to Personal Attendants), including when the service provider of supported home living or CFC personal assistance services/habilitation (CFC PAS/HAB) is employed by or contracts with a contractor of a program provider;

(3) obtain the criminal history record of the potential staff member or potential contractor from the Texas Department of Public Safety directly or through a private agency before hiring or contracting with the potential staff member;

(4) not employ or contract with a potential staff member, service provider, or volunteer who:

(A) has been convicted of an offense listed, and for the time periods set forth, in Texas Health and Safety Code §250.006;

(B) is a registered sex offender; or

(C) has been convicted of an offense that the program provider determines is a contraindication;

(5) search the following registries before hire or execution of a contract and every 12 months thereafter to determine if a staff member or service provider is eligible for employment:

(A) the Employee Misconduct Registry; and

(B) the Nurse Aide Registry;

(6) search the following registries before hire or execution of a contract and every month thereafter to determine if an employee or contractor is eligible for employment:

(A) the List of Excluded Individuals and Entities maintained by the United States Department of Health and Human Services; and

(B) the List of Excluded Individuals and Entities maintained by the Texas Health and Human Services Commission (HHSC) Office of Inspector General; and

(7) not hire or continue employment for a staff member or service provider who is listed on:

(A) the Employee Misconduct Registry as unemployable;

(B) the Nurse Aide Registry as revoked or suspended;

(C) the List of Excluded Individuals and Entities maintained by the United States Department of Health; or

(D) the List of Excluded Individuals and Entities maintained by Health and Human Services office of Inspector General or by HHSC Office of Inspector General.

(c) The program provider must develop and implement policy and procedures:

(1) that ensure only staff members and service providers with a valid driver's license and insurance transport individuals; and

(2) are revised if a shortcoming is identified.

(d) If the service provider of supported home living or CFC PAS/HAB is employed by or contracts with a contractor of a program provider, the program provider must ensure that the contractor complies with subsection (b)(2) of this section as if the contractor were the program provider.

(e) The program provider must:

(1) employ or contract with a person or entity of the individual's or legally authorized representative's (LAR's) choice to provide a Home and Community-based Services Program or CFC service to the individual if that person or entity:

(A) is qualified to provide the service; and

(B) is willing to contract with or be employed by the program provider to provide the service in accordance with this subchapter; or

(2) have and document good cause not to employ or contract with the person or entity of the individual's or LAR's choice.

(f) If a program provider contracts with a person or entity to provide transition assistance services (TAS), the person or entity must have a contract to provide TAS in accordance with 40 TAC Chapter 49 (relating to Contracting for Community Services).

(g) The program provider must create and implement a policy that prevents:

(1) conflicts of interest between the program provider, a staff member, or a service provider and an individual, such as the acceptance of payment for goods or services (except payment for room and board) from which the program provider, staff member, or service provider could financially benefit;

(2) financial impropriety toward an individual including:

(A) unauthorized disclosure of information related to an individual's finances; and

(B) any purchase of goods that are not requested for the individual, cannot be used by the individual, or are not intended for the individual's use;

(3) abuse, neglect, or exploitation of an individual;

(4) damage to, or prevention of an individual's access to, the individual's possessions; and

(5) threats of the actions described in paragraphs (2) - (4) of this subsection.

(h) A program provider must comply with 42 United States Code §1396a(w), regarding requirements about advance directives.

Source Note: The provisions of this §565.9 adopted to be effective June 21, 2023, 48 TexReg 3246