SECTION 41.103. 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) Adult--A person who is 18 years of age or older.

(3) Actively involved--Involvement with an individual that the individual or LAR and other members of the individual's service planning team deems to be of a quality nature based on the following:

(A) observed interactions of the person with the individual;

(B) a history of advocating for the best interests of the individual;

(C) knowledge and sensitivity to the individual's preferences, values, and beliefs;

(D) ability to communicate with the individual; and

(E) availability to the individual for assistance or support when needed.

(4) Alleged perpetrator--A person alleged to have committed an act of abuse, neglect, or exploitation of an individual.

(5) Allowable cost--A billable service or item that is within the rate and spending limits of the rate established by HHSC and that meets the requirements of an individual's program.

(6) Applicant--Depending on the context, an applicant is:

(A) a person applying for employment with an employer;

(B) a person or legal entity applying for a contract with an employer to deliver services to an individual; or

(C) a person enrolling in a program in which the CDS option is available to the individual as described in §41.108 of this subchapter (relating to Services Available Through the CDS Option).

(7) Budget--A written projection of expenditures for each service delivered through the CDS option.

(8) Budgeted unit rate--The unit rate calculated for employee wages and benefits in the budgeting process for services delivered through the CDS option. The rate is calculated after employer support services have been budgeted.

(9) CAS Program--Community Attendant Services Program. A Medicaid state plan program authorized under Title XIX of the Social Security Act and described in Chapter 47 of this title (relating to Primary Home Care, Community Attendant Services, and Family Care Programs).

(10) Case manager--A person who provides case management services to an individual. The case manager assists an individual who receives services in gaining access to needed services, regardless of the funding source for the services, and assists with other duties in accordance with the rules of the individual's program.

(11) CDS option--Consumer directed services option. A service delivery option in which an individual or LAR employs and retains service providers and directs the delivery of program services.

(12) CDSA--An FMSA.

(13) CFC--Community First Choice. The CFC option described in 1 Texas Administrative Code (TAC) Chapter 354, Subchapter A, Division 27 (relating to Community First Choice).

(14) CFC PAS/HAB--CFC personal assistance services/habilitation. A Medicaid state plan service provided through CFC.

(15) CFC support management--Training on how to select, manage, and dismiss an unlicensed service provider of CFC PAS/HAB.

(16) CLASS Program--Community Living Assistance and Support Services Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 45 of this title (relating to Community Living Assistance and Support Services and Community First Choice (CFC) Services).

(17) CMPAS Program--Consumer Managed Personal Attendant Services Program. A program authorized under Title XX, Subtitle A of the Social Security Act and described in Chapter 44 of this title (relating to Consumer Managed Personal Attendant Services (CMPAS) Program).

(18) Contractor--A person, who performs one or more program services, offers service to the general public, performs services for payment, and with whom an employer has a written service agreement. A contractor directs and controls when and how the work is performed as well as the business aspect of the job including expenses and the business relationship. A contractor may be a sole proprietor.

(19) Controlling person--A person who:

(A) has an ownership interest in an FMSA;

(B) is an officer or director of a corporation that is an FMSA;

(C) is a partner in a partnership that is an FMSA;

(D) is a member or manager in a limited liability company that is an FMSA;

(E) is a trustee or trust manager of a trust that is an FMSA; or

(F) because of a personal, familial, or other relationship with an FMSA, is in a position of actual control or authority with respect to the FMSA, regardless of the person's title.

(20) DADS--HHSC.

(21) DBMD Program--Deaf Blind with Multiple Disabilities Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 42 of this title (relating to Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services).

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

(23) DR--Designated representative. A willing adult appointed by the employer to assist with or perform the employer's required responsibilities to the extent approved by the employer.

(24) Employee--A person employed by an employer through a service agreement to deliver program services and who is paid an hourly wage for those services, including a support advisor.

(25) Employer--An individual or LAR who chooses to participate in the CDS option, and, therefore, is responsible for hiring and retaining service providers to deliver program services.

(26) Employer support services--Services and items the employer needs to perform employer and employment responsibilities, as described in §41.507(a)(1) of this chapter (relating to Employer Support Services Budgeting).

(27) Entity--An organization that has a legal identity such as a corporation, limited partnership, limited liability company, professional association, or cooperative.

(28) EVV system--Electronic visit verification system. As defined in §68.102 of this title (relating to Definitions), an electronic visit verification system that:

(A) allows a service provider to electronically report:

(i) the service recipient's identity;

(ii) the service provider's identity;

(iii) the date and time the service provider begins and ends the delivery of services;

(iv) the location of service delivery; and

(v) tasks performed by the service provider; and

(B) meets other guidelines described on the HHSC website.

(29) Exploitation--The illegal or improper act or process of using, or attempting to use, an individual or the resources of an individual for monetary or personal benefit, profit, or gain.

(30) FC Program--Family Care Program. A program authorized under Title XX, Subtitle A of the Social Security Act and described in Chapter 47 of this title.

(31) FMS--Financial management services. Services delivered by an FMSA to an employer or DR as described in §41.309(a) of this chapter (relating to Financial Management Services, CFC Support Management, and Vendor Fiscal/Employer Agent Responsibilities).

(32) FMSA--A financial management services agency. A person, as defined in §49.102 of this title (relating to Definitions), that contracts with HHSC to provide FMS.

(33) HCS Program--Home and Community-based Services Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 9, Subchapter D of this title (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC)).

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

(35) Individual--A person enrolled in a program in which the CDS option is available, as described in §41.108 of this subchapter.

(36) LAR--Legally authorized representative. A person authorized or required by law to act on behalf of an individual with regard to a matter described in this chapter, including a parent of a minor, guardian of a minor, managing conservator of a minor, or the guardian of an adult.

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

(38) Minor--A person who is 17 years of age or younger.

(39) Neglect--A negligent act or omission that caused physical or emotional injury or death to an individual or placed an individual at risk of physical or emotional injury or death.

(40) Non-program resource--A resource, other than an individual's HHSC program.

(41) Parent--A natural, legal, foster, or adoptive parent of a minor.

(42) PHC Program--Primary Home Care Program. A Medicaid state plan program authorized under Title XIX of the Social Security Act and described in Chapter 47 of this title.

(43) 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 an individual or placed an individual 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 an individual;

(C) the use of a restraint on an individual not in compliance with federal and state laws, rules, and regulations; or

(D) seclusion.

(44) Relative--A person related to an employer within the fourth degree of consanguinity or within the second degree of affinity.

(45) Seclusion--The involuntary placement of an individual alone in an area from which the individual is prevented from leaving.

(46) Service agreement--A written agreement or acknowledgment between two parties that defines the relationship and lists respective roles and responsibilities.

(47) Service backup plan--A documented plan to ensure that critical services delivered through the CDS option are provided to an individual when normal service delivery is interrupted or there is an emergency.

(48) Service coordinator--An employee of a LIDDA who is responsible for assisting an applicant, individual, or LAR to access needed medical, social, educational, and other appropriate services, including an HHSC program or service. A service coordinator provides case management services to an individual.

(49) Service plan--A document developed in accordance with rules governing an individual's program that identifies the services to be provided to the individual, the number of units of each service to be provided, and the projected cost of each service.

(50) Service planning team--A group of people identified in accordance with the requirements of an individual's program. Some HHSC programs refer to the service planning team as an interdisciplinary team.

(51) Service provider--An employee, contractor, or vendor.

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

(A) sexual exploitation of an individual;

(B) non-consensual or unwelcomed sexual activity with an individual; or

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

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

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

(A) which may include sexual contact; and

(B) does not include obtaining information about an individual's sexual history within standard accepted clinical practice.

(55) Staff person--An employee, contractor, or volunteer of an FMSA.

(56) Support advisor--An employee who provides support consultation to an employer or DR.

(57) Support consultation--An optional service that is provided by a support advisor and provides a level of assistance and training beyond that provided by the FMSA through FMS or CFC support management. Support consultation helps an employer to meet the required employer responsibilities of the CDS option and to successfully manage the delivery of program services.

(58) TxHmL Program--Texas Home Living Program. A Medicaid waiver program approved by CMS under Title XIX, §1915(c) of the Social Security Act and described in Chapter 9, Subchapter N of this title (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC)).

(59) Vendor--A person or entity selected by an employer or DR to deliver goods, items, or services other than a direct service to an individual. Examples of vendors include a building contractor, an electrician, a durable medical equipment provider, a pharmacy, and a medical supply company.

(60) Vendor fiscal/employer agent--The entity responsible for conducting payroll activities, including withholding, filing, and depositing taxes on behalf of an employer in the CDS option, in accordance with Section 3504 of the Internal Revenue Code and with Revenue Procedure 2013-39.

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

(A) to:

(i) harass, intimidate, humiliate, or degrade an individual; or

(ii) threaten an individual with physical or emotional harm; and

(B) that:

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

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

(62) Volunteer--A person who works for an FMSA without compensation, other than reimbursement for actual expenses.

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

Source Note: The provisions of this §41.103 adopted to be effective January 1, 2007, 31 TexReg 10352; amended to be effective January 1, 2011, 35 TexReg 11709; amended to be effective July 1, 2013, 38 TexReg 3990; amended to be effective March 20, 2016, 41 TexReg 1925; amended to be effective October 1, 2019, 44 TexReg 5074