SECTION 47.3. Definitions

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

(1) Abuse--

(A) physical abuse;

(B) sexual abuse; or

(C) verbal or emotional abuse.

(2) ADL--Activity of daily living. An activity that is essential to daily self-care. An ADL does not include a service that must be provided or supervised by licensed personnel.

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

(4) Attendant--A person who provides authorized tasks to an individual.

(5) CAS Program--Community Attendant Services Program. A Medicaid state plan program authorized under Title XIX, §1929(b) of the Social Security Act that provides personal attendant services to an eligible individual.

(6) Case worker--An HHSC employee who is responsible for case authorization and management activities.

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

(8) Contract manager--An HHSC employee who is responsible for the overall management of the contract with the provider.

(9) Controlling person--A person who:

(A) has an ownership interest in a provider;

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

(C) is a partner in a partnership that is a provider;

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

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

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

(10) Days--Any reference to days means calendar days, unless otherwise specified in the text. Calendar days include weekends and holidays.

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

(12) Expedited referral--In the PHC Program or CAS Program, an oral request from a case worker to a provider when the case worker determines that an individual's needs require that pre-initiation activities be completed in less than 14 days.

(13) 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. In the FC Program, if services are not provided through the CDS option, exploitation includes theft as defined in Chapter 31 of the Texas Penal Code.

(14) FC Program--Family Care Program. A program authorized under Title XX, Subtitle A, of the Social Security Act that provides personal attendant services to an eligible individual.

(15) Financial management services--A service, as defined in §41.103 of this title (relating to Definitions), that is provided to an individual participating in the consumer directed services option.

(16) FMSA--Financial management services agency. As defined in §41.103 of this title, an entity that provides financial management services to an individual participating in the consumer directed services option.

(17) Functional limitation--An individual's requirement for assistance with one or more ADLs caused by a physical limitation or disability.

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

(19) IADL--Instrumental activities of daily living. Activities related to living independently in the community.

(20) Imminent danger--An immediate or real threat.

(21) Individual--A person who is enrolled in the PHC Program, CAS Program, or FC Program and, unless the context indicates otherwise, the person's representative.

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

(23) Medical need--A medical diagnosis that results in a functional limitation.

(24) 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.

(25) Non-priority--The eligibility status for service delivery as determined by the case worker for an individual who does not meet the criteria described in §48.2918(d) of this title (relating to Primary Home Care or Community Attendant Services). Services delivered to such an individual may be referred to as non-priority services, and an attendant who serves such an individual may be referred to as a non-priority attendant.

(26) Notice--Includes oral, fax, secure email, and other forms of written notice.

(27) Oral notice--Directly speaking with a person. Oral notice does not include a message left by voice mail.

(28) PHC Program--Primary Home Care Program. A Medicaid state plan program authorized under Title XIX, §1902(a)(10)(A) of the Social Security Act that provides personal attendant services to an eligible individual.

(29) 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; or

(C) the use of a restraint or seclusion.

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

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

(B) normal access by an individual to a portion of the individual's body.

(31) Practitioner--A person who holds a doctor of medicine or doctor of osteopathy degree and is currently licensed in Texas, Louisiana, Arkansas, Oklahoma or New Mexico; a physician assistant currently licensed in Texas; or a registered nurse approved by the Texas Board of Nursing to practice as an advanced practice registered nurse.

(32) Practitioner's statement--The HHSC Practitioner's Statement of Medical Need form.

(33) Priority--The eligibility status for service delivery as determined by the case worker for an individual who meets the criteria described in §48.2918(d) of this title. Services delivered to such an individual may be referred to as priority services, and an attendant who serves such an individual may be referred to as a priority attendant.

(34) Provider--A licensed home and community support services agency that has a contract with HHSC to provide PHC Program, CAS Program, and FC Program services.

(35) Reckless behavior--Acting with conscious indifference to the consequences.

(36) Regional nurse--An HHSC employee who is responsible for authorizing the CAS Program for an individual.

(37) Representative--An individual's spouse, other responsible party, designated representative, or legally authorized representative.

(38) Restraint--Any of the following:

(A) a chemical restraint;

(B) a mechanical restraint; or

(C) a physical restraint.

(39) Routine referral--In the PHC Program or CAS Program, a written request from the case worker to a provider to evaluate an individual for service delivery when the case worker determines that the individual's needs do not require an expedited referral.

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

(41) Secure email--Electronic mail that uses sufficient precautions to protect the privacy and security of identifying information in compliance with the requirements of the Health Insurance Portability and Accountability Act of 1996.

(42) Service delivery plan--A single document that is agreed upon and signed by an individual and a provider containing the elements described in §47.45(a)(2) of this chapter (relating to Pre-Initiation Activities). A single document may be more than one page.

(43) Service schedule--A schedule for delivering attendant services containing the elements described in §47.45(a)(2)(C)(iii) of this chapter.

(44) 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 staff person or controlling person, unless a consensual sexual relationship with an adult individual existed before the staff person or controlling person became a staff person or controlling person.

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

(46) 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.

(47) Staff person--An employee, contractor, or volunteer of a provider.

(48) Supervisor--A provider employee who:

(A) coordinates the delivery of services in an individual's service delivery plan;

(B) supervises attendants; and

(C) meets the requirements for a supervisor in accordance with 26 TAC §558.404 (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services).

(49) 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.

(50) Volunteer--A person who works for a provider without compensation, other than reimbursement for actual expenses.

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

Source Note: The provisions of this §47.3 adopted to be effective June 1, 2004, 29 TexReg 5113; amended to be effective June 1, 2009, 34 TexReg 2802; amended to be effective October 1, 2019, 44 TexReg 5138