draft proposed rules for chapter 37€¦ · §37.135 notice of adverse action and right to appeal ....
TRANSCRIPT
Community Care for Aged and Disabled Chapter 37
DRAFT PROPOSED RULES FOR CHAPTER 37:
COMMUNITY CARE FOR AGED AND DISABLED SERVICES
SUBCHAPTER A
ADULT FOSTER CARE
SUBCHAPTER A – ADULT FOSTER CARE
§37.101. Purpose §37.102. Definitions §37.103. Service Array §37.104. Age Eligibility Criteria §37.105. Financial Eligibility Criteria §37.106. Income Limits §37.107. Countable Income §37.108. Income Exclusions §37.109. Exempt Income §37.110. Resource Limits §37.111. Countable Resources §37.112. Resource Exclusions §37.113. Functional Eligibility Criteria §37.114. Unmet Need Criteria §37.115. Additional Program Eligibility Criteria §37.116. Request for Services §37.117. AFC Interest List §37.118. Bypass Criteria and Presumptive Eligibility §37.119. Assessment Process §37.120. Service Plan Development
§37.121. Certification and Authorization
§37.122 Personal Needs Allowance in Determining Room and Board
§37.123 Personal Leave and Bedhold Charges
§37.124 Monitoring
§37.125 Changes
§37.126 Reassessment
§37.127 Required Service Suspensions
§37.128 Required Immediate Suspension and Crisis Intervention
§37.129 Optional Service Suspensions
§37.130 Interdisciplinary Team (IDT)
§37.131 Denial of the Request for Services
§37.132 Reduction in Service
§37.133 Terminations
§37.134 Reinstatement of Services After Termination for Non-Compliance or
Threats to Health and Safety
§37.135 Notice of Adverse Action and Right to Appeal
CHAPTER 37
SUBCHAPTER A ADULT FOSTER CARE
37.101 Purpose
(a) This chapter establishes the eligibility requirements and provides information for a
person to receive Adult Foster Care services through the Department of Aging and
Disability Services (DADS).
(b) Adult Foster Care (AFC) provides a 24-hour living arrangement in a DADS
contracted foster home for persons who, because of physical, mental or emotional
limitations, are unable to continue independent functioning in their own homes.
(c) Providers of AFC must live in the household and share a common living area with the
individual. Detached living quarters do not constitute a common living area. The
individual enrolled to provide AFC must be the primary caregiver. Providers may serve
up to three adults in a DADS-enrolled AFC home without licensure as a personal care
home. Providers may serve up to four adults with a Type C assisted living license or up to
eight adults with an Assisted Living Type A, Small, assisted living license. Adult foster
care services are provided under Title XX of the Social Security Act.
37.102 Definitions
ADL – Activities of daily living. An activity that is essential to daily self-care, including
bathing, dressing, grooming, routine hair and skin care, meal preparation, feeding,
exercising, toileting, transferring, and ambulation. An ADL does not include a service
that must be provided or supervised by licensed personnel.
Applicant - A person who is applying for DADS services.
Business Days – Any day except a Saturday, Sunday, or legal holiday listed in Texas
Government Code, §662.021.
Caregiver – A relative, guardian, representative payee, or person who has contact
with the individual that is frequent enough or regularly scheduled enough that a
personal relationship exists or the individual perceives that person as having a role in
helping the individual to meet basic needs.
Case manager -- A DADS employee who is responsible for case management activities.
Activities include eligibility determination, individual registration, assessment and
reassessment of an individual's needs, service delivery plan development, and
intercession on the individual's behalf.
CFR – Code of Federal Regulations
Contract--The formal, written agreement between DADS and a provider to provide AFC
program services to an individual eligible under this chapter in exchange for
reimbursement.
Contract manager--A DADS employee who is responsible for the overall management of
the contract with the provider.
DADS – Department of Aging and Disability Services
Days – Calendar days unless otherwise specified.
Denial – An action taken by DADS that does not approve:
(a) an applicant's request for services; or
(b) a request for an increase of a service above the amount that is currently
authorized.
Emancipated Minor -- A person under 18 who has the power and capacity of an adult.
This includes a minor who has had the disabilities of minority removed by a court of law
or a minor who, with or without parental consent, has been married. Marriage includes
common-law marriage.
Functional Limitation – An individual's degree of difficulty in performing one or more
ADLs caused by a physical limitation or disability.
Functional Need- The tasks and services identified by the individual that will require
assistance.
Incarcerated – To be confined to a jail or prison.
Individual – Except as otherwise provided in these rules, a person who is receiving
DADS services.
Interdisciplinary Team (IDT) – A designated group including representatives from
DADS, service providers and the individual or his representative who convene to discuss
service delivery issues.
Installment Contract - An installment is a mortgage or similar contract in which the buyer
promises to pay a fixed amount over a period of time until the principal of the note is
paid.
Involuntary Protective Services – Placement by a representative of the Texas
Department of Family and Protective Services (DFPS) Adult Protective Services
(APS) into a structured service or program for the safety of an individual and including
ongoing supervision by APS.
Medicaid - A program funded jointly by the states and the federal government that
provides medical benefits to groups of low-income people, some who may have no
medical insurance or inadequate medical insurance.
Medicaid Eligible – An individual eligible for federal assistance through
Supplemental Security Income (SSI) or Temporary Assistance for Needy Families
(TANF) or otherwise determined eligible by the Health and Human Services
Commission for full Medicaid benefits.
Person - An individual that has not applied for and is not receiving DADS services.
Personal leave - Any leave from the adult foster care home except for hospitalization or
institutionalization. A day of personal leave is any period of 24 consecutive hours.
Personal Representative- An individual's spouse, other responsible party, designated
representative, or legally authorized representative.
Regional Provider Rotation Log – A log kept by the regional staff listing all the providers
contracted to provide a specific service in the contracted service delivery area. If an
applicant/individual does not select a provider of services, a provider is assigned for the
individual on a rotation basis among all the contracted providers.
Service Plan – The tasks and services authorized by the DADS case manager and agreed
upon by the individual receiving services to be delivered by the contracted provider.
U. S. C. – United States Code
37.103 Service Array
(a) Adult foster care services provide:
(1) Resident care and services. Adult Foster Care provides services to residents
according to the individual service plan and the agreement between the individual and the
provider;
(2) Personal care. Adult Foster Care provides assistance with personal care services
identified on the service plan completed for the individual. Personal care services are
activities related to the care of the individual’s physical health that include:
(A) bathing; (B) dressing; (C) grooming; (D) routine hair and skin care; (E) exercising; (F) feeding; (G) toileting; (H) medication administration, except injections; (I) transferring/ambulating, and (J) twenty-four-hour supervision.
(3) Nutrition. Adult Foster Care:
(A) provides a resident with at least three meals daily which meet each resident's
dietary and nutritional needs;
(B) considers a resident's food preferences and make reasonable accommodations
within his dietary needs;
(C) serves a variety of foods, within the resident's dietary needs; and
(D) follows special diets as prescribed in writing by the resident's physician.
(4) Medications. The Adult Foster Care provider must ensure that a resident takes over-
the-counter medications according to the package directions and ensure that all
medications are taken as prescribed and in a timely manner according to the instructions
on the medication label or instructions from the resident's physician. The adult foster care
provider may administer medications only as allowed by state law or regulation.
(5) Transportation. Adult Foster Care provides or makes arrangements to meet the
transportation needs of a resident for medical appointments, shopping for personal needs,
and church activities. An escort must also be provided if specified in the individual
service plan for a resident.
37.104 Age Eligibility Criteria
To be eligible for AFC, a person must be 18 years of age or older, or an emancipated
minor.
37.105 Financial Eligibility Criteria
To be financially eligible for AFC, an individual must:
(a) be categorically eligible by receiving Temporary Assistance for Needy Families
(TANF), Supplemental Security Income (SSI), Qualified Medicare Beneficiary (QMB),
Specified Low-Income Medicare Beneficiary (SLMB), Qualifying Individuals (QI),
Supplemental Nutrition Assistance Program, Medicaid Buy-In or Medicaid; or
(b) meet the income and resource limits set by DADS.
37.106 Income Limits
(a) For sections §37.106 through §37.109, the term individual applies to both an applicant
and an individual receiving services.
(b) For an individual, the income limit is the same as the special income limit set for
institutional care (medical assistance only), which is equal to or less than 300 percent of
the full individual Supplemental Security Income (SSI) federal benefit rate. The special
income limit for a couple is twice the special income limit for an individual, as described
in 1 TAC §358.433 (relating to Special Income Limit).
37.107 Countable Income
DADS determines countable income by totaling gross income from both earned and
unearned income, less all applicable exclusions and exemptions. Applicable exclusions
and exemptions are specified in §37.108 and §37.109 of this chapter (relating to Income
Exclusions and Exempt Income).
(a) Earned Income. Earned income is considered from the following sources:
(1) Total gross earnings. This includes money, wages, commissions, tips, piece-rate
payments, cash bonuses, or salary received for work performed as an employee. This also
encompasses pay for members of the armed forces (including allotments from any armed
forces pay received by a member of the family group from a person not living in the
household).
(2) Net earnings from self-employment income (including farm income). For earned
income to be considered self-employment, either the individual or spouse must be
actively involved or materially participating in producing the income.
(b) Unearned Income. Unearned income means all other income, including:
(1) Social security and railroad retirement benefits.
(2) Dividends. This consists of dividends from stocks or membership in associations,
and periodic receipts from estates of trust funds. These payments are averaged over a 12-
month period.
(3) Rental income. This includes payments to the individual from the rent of housing,
store, or other property, as well as from boarders or lodgers.
(4) Net income derived from oil, gas, or mineral rights. This can include both lease and
royalty payments. These payments are averaged over a 12-month period.
(5) Income from mortgages or contracts.
(6) Public assistance or welfare payments. Temporary Assistance to Needy Families,
Supplemental Security Income, and general assistance (cash payments from a county or
city) are included.
(7) Veterans' pensions and compensation checks. This may include money paid
periodically by the Veterans Administration to disabled members of the armed forces or
to survivors of deceased veterans, subsistence allowances paid to veterans for education
and on-the-job training, and refunds paid to ex-servicemen as GI insurance premiums.
(8) Educational loans, grants, fellowships, and scholarships.
(9) Unemployment compensation. Unemployment compensation may be received
from government employment insurance agencies or private companies during periods of
unemployment, and includes any strike benefits received from union funds.
(10) Workers compensation and disability payments. This includes compensation
received periodically from private or public insurance companies for injuries incurred at
work.
(11) Alimony.
(12) Regular monthly cash support payments from friends or relatives.
(13) Pensions, annuities, and irrevocable trust funds. Payments may be paid to a retired
person or his survivors by a former employer or by a union, either directly or through an
insurance company. Periodic payments from annuities, insurance, irrevocable trust fund
payments, and civil service pensions are included.
(14) Income from the individual's share of a life estate.
37.108 Income Exclusions
Income may be fully or partially countable, or may be excluded from the current
eligibility budget. The case manager monitors excludable income at each financial review
to determine how eligibility is affected.
(a) Excludable income is:
(1) deductions from earned income, including social security payments, Medicare
premium payments, bonds, pensions, and union dues;
(2) the first $65 of an individual's or couple's net earned income, plus 1/2 of the
remainder;
(3) loans, grants, scholarships, and fellowship funds obtained and used under
conditions that preclude their use for current living costs. Any portion used to pay any
other expense (room, board, books, etc.) is included;
(4) Veterans Administration aid-and-attendance benefits, homebound elderly benefits,
and payments to certain eligible veterans for purchase of medications;
(5) infrequent or irregular income (income received less frequently than once a month)
that averages $20 per month or less;
(6) 1/3 of the total amount of child support payments for an eligible child; and
(b) Excludable expenses from self-employment income.
(1) The following expenses from self-employment income are deducted in
determining earned income:
(A) money paid to or for employees living in the home or not living in the home;
(B) federal, state, or local income taxes;
(C) sales tax;
(D) property tax;
(E) rental of business property;
(F) utilities for business property;
(G) stock/inventory, raw materials;
(H) supplies;
(I) fuel expenses for the business;
(J) insurance premiums;
(K) linen service;
(L) interest for business loans or property;
(M) lodging when traveling (when not counted as shelter);
(N) own meals when traveling for business;
(O) net loss for same determination period;
(P) additional expenses related to self-employment (advertising, co-op, license
fees, journals, etc.);
(Q) depreciation related to self-employment; and
(R) cost of doing business in the home including utilities. The rooms designated
for business purposes in a single residence must be separately identifiable from expenses
for the home.
(2) The following expenses from self-employment income may not be deducted in
determining earned income:
(A) purchase and cleaning of uniforms;
(B) capital asset purchases;
(C) capital asset improvements;
(D) payment on principal of loan for income-producing property;
(E) travel to and from place of business;
(F) depreciation related to unearned income (e.g., rental income); and
(G) net loss from previous determination period.
37.109 Exempt Income
(a) Certain income is exempt when determining eligibility and is not counted in
determining total income. Once identified and documented, the DADS case manager
does not monitor exempt income at subsequent financial redeterminations.
(b) The following sources of income are exempt:
(1) interest income.
(2) cash received from the sale of a resource. This cash is a resource, not income.
(3) income of minor children who are supported by or dependent upon the individual. (4) refunds from the Internal Revenue Service for earned income tax credit.
(5) reimbursement from an insurance company for health insurance claims.
(6) any cash from a non-governmental medical or social services organization if the
cash is:
(A) for medical or social services already received by the individual and approved
by the organization, and which does not exceed the value of those services; or
(B) a payment restricted to the future purchase of a medical or social service.
(7) funds received (amount borrowed) from either a commercial loan or an informal
loan, when repayment is required with or without interest.
(A) A loan requires a bona fide agreement that is legally valid and made in good
faith. The individual must acknowledge an obligation to repay and that some plan for
repayments exists.
(B) The amount borrowed is not counted as income in the month in which it is
received, but is counted as a resource in the following month(s).
(C) Federal Educational Loans (Federal PLUS Loans, Perkins Loans, Stafford
Loans, William D. Ford Loans, etc.) under Title IV of the Higher Education Act (HEA)
are exempt from income and resources.
(8) amount of the cost-of-living increase in any pension or benefit, received on or after
January 1, 1985, that would cause the individual to be ineligible for continued services.
This exclusion applies only to an individual who is already receiving services and would
become ineligible because of the increase. It does not apply to applicants.
(9) in-kind income, such as food, clothing, shelter, rent subsidies.
(10) one-time or lump-sum payments from any source.
(11) funds from the In-Home and Family Support Program or the Transition to Life in the
Community Program.
(12) payments exempted by federal laws in accordance with 20 CFR §416.1112,
§416.1124, Appendix to Subpart K in 20 CFR Part 416 (relating to exclusions regarding
Food, Housing and Utilities, Education and Employment, Native Americans, and Other
exclusions), {ADD LINK} and §416.1150 (relating to the Disaster Relief and Emergency
Assistance Act). {ADD LINK}
37.110 Resource Limits
To be eligible for Adult foster care, the value of nonexempt resources owned by the
individual (and spouse) cannot exceed the greater of:
(a) the countable resource limits for the Medicare Saving Programs in accordance with 42
U. S. C. §1395w-114 (a)(3)(D); or
(b) $5,000 for an individual or $6,000 for a couple.
37.111 Countable Resources
Countable resources are cash or other liquid assets or any real or personal property that
an individual (or spouse, if any) owns and could convert to cash to be used for his or her
support and maintenance.
In determining eligibility for Adult Foster Care services, DADS considers the following
to be resources.
(a) Liquid Resources. Liquid resources include:
(1) cash on hand,
(2) certificates of deposit,
(3) checking or savings accounts,
(4) money market funds,
(5) revocable trust funds,
(6) savings certificates,
(7) stocks, or
(8) bonds.
(b) Jointly held liquid resources are counted if the individual has unrestricted access to
the funds regardless of the source. The individual may move his portion of jointly held
funds in a joint account to a new account. The new account may be jointly owned, but
DADS counts all funds in the new account as a resource.
(c) Non-liquid Resources. Non-liquid resources include:
(1) nonexempt licensed or unlicensed vehicles;
(2) buildings and land not designated as homestead that are not producing income, or
are producing income less than 6.0% of the equity value; and
(3) any other property not specifically excluded.
(d) Money received as a nonrecurring lump sum payment is not considered a resource
until 30 days after the date of receipt. The individual is responsible for reporting the
receipt of a lump sum payment. Lump sum payments include:
(1) income tax refunds;
(2) earned income tax credits or rebates;
(3) one-time bonuses from mineral rights;
(4) retroactive lump sum social security, SSI, or railroad retirement benefits;
(5) lump sum insurance settlements;
(6) one-time gifts, awards, or prizes; and
(7) refunds from rental or utility deposits.
37.112 Resource Exclusions
(a) In determining eligibility for Adult Foster Care services, DADS excludes the value of
the following items for eligibility purposes:
(1) homestead. Any structure used by the individual as a residence, including other
buildings and all contiguous land. Mobile homes, houseboats, and motor homes are
considered structures. Vacant property is not a homestead. Contiguous land means all
land adjacent to the home, including any land separated only by roads, rivers, and
streams. Land is contiguous as long as it is not separated by property owned by another
person. The homestead is excluded as a resource regardless of its location, even if the
individual no longer lives there (unless he has purchased another residence). If he owns
two houses, his homestead is the property he uses as a residence. Only one homestead
may be excluded for each individual or couple;
(2) personal property. Household goods and personal effects;
(3) property essential to employment. Tools and equipment required for employment or
self-employment;
(4) prepaid burials. Prepaid burial arrangements, burial insurance, and burial plots;
(5) life insurance. The cash surrender value of all life insurance;
(6) vehicles. One passenger car or other vehicle, such as a van or truck, used for
transportation; or one unlicensed vehicle.
(A) A second vehicle may be excluded if it is:
(i) specially equipped to enable a person with a disability to drive; or
(ii) essential to the employment or self-employment of the family.
(B) Any additional vehicles, licensed or unlicensed, are considered resources;
(7) income-producing property. Property that annually produces net income equal to or
greater than 6.0% of the property's equity value. The equity value is the current market
value of the property less any recorded encumbrances;
(8) property under an installment contract from mortgages, notes, or loans. DADS
excludes the value of property if under a contract for installment payments and the
contract or agreement is producing income according to the fair market value at the time
of the agreement. Even though the seller retains legal title, the property is not considered
a countable resource as long as the buyer is fulfilling the contractual obligation. The
payment is considered income;
(9) disaster assistance. Government payments granted for the rebuilding of homes
destroyed or damaged in a disaster;
(10) energy assistance. Payments or allowances for energy assistance made under any
federal, state, or local law;
(11) Supplemental Nutrition Assistance Program (SNAP) allotments. The value of
SNAP allotments and USDA-donated foods;
(12) inaccessible resources. The cash value of resources inaccessible to the individual,
including, irrevocable trust funds, property in probate, and pension funds. Real property
that the individual or family is making a good faith effort to sell is exempt. The
individual or family must ask a fair price for the property, according to its current market
value. Property is also exempt if it is jointly owned and the other co-owners refuse to sell;
(13) mineral rights. The value of mineral rights;
(14) life estates and remainder interests. A life estate is the right an individual has to
property during the individual's lifetime. A remainder interest is the right of ownership to
the property when the life estate holder dies;
(15) replacement value of excluded resources. Replacement value of an excluded
resource if it is lost, damaged, or stolen. The cash received from an insurance company
for replacing the resource is not considered for three months if it is real property. Any
cash not spent within the specified time period is considered a resource;
(16) monthly gross income. Monthly gross income is counted as income in the month
received and excluded as a resource in that month, but considered a resource in
subsequent months;
(17) sale of a homestead. Proceeds from the sale of a homestead are exempt for up to six
months after becoming available to the seller. If the individual acquires another
homestead during the six months, any balance from the original sale is counted as an
available resource. If, before the end of the six-month period, the individual declares he
has no intention of acquiring another homestead, the proceeds from the sale are counted
as an available resource;
(18) Agent Orange settlement payments. Payments from the Agent Orange settlement
fund or any other fund established in settlement of the Agent Orange product liability
litigation;
(19) radiation exposure compensation. Payments received under the Radiation Exposure
Compensation Act (Public Law 101-426);
(20) funds from the In-Home and Family Support Program or the Transition to Life in
the Community Program;
(21) livestock;
(22) earned income tax credit (EITC) refunds from the Internal Revenue Service.
(b) Any item not listed as an exclusion is considered a resource.
37.113 Functional Eligibility Criteria
To be eligible for Adult foster care, a person must meet the minimum functional need
criteria as set by DADS. DADS uses a standardized assessment instrument to measure
the person’s ability to perform activities of daily living. This yields a score, which is a
measure of the person’s level of functional need. DADS sets the minimum required score
for a person to be eligible, which DADS may periodically adjust commensurate with
available funding. DADS will seek stakeholder input before making any change in the
minimum required score for functional eligibility.
37.114 Unmet Need Eligibility Criteria
To be eligible for Adult Foster Care, DADS must determine a person has an unmet need
based on the standardized assessment instrument.
37.115 Additional Program Eligibility Criteria
In addition to meeting the age, financial, functional and unmet need criteria, to be eligible
for AFC,
(a) a person must:
(1) not have inappropriate characteristics for placement in the adult foster care home
as determined by the DADS standardized characteristics assessment. The applicant’s
needs must not exceed the provider’s capability to provide care.
(2) pay for room and board as agreed in the individual and provider agreement. The
individual is responsible for paying this amount directly to the AFC provider.
(3) obtain approval from the Community Care for Aged and Disabled unit supervisor
to be placed in AFC.
37.116 Request for Services (a) A request for AFC may begin with:
(1) a telephone, written, or walk-in request for services from a person or the person’s
relative, friend, or other interested party; or
(2) a telephone or written request for services from another agency, organization, or
DADS division.
(b) All information collected about a person to determine eligibility for services is
confidential and may be released only in accordance with federal and state laws and
regulations.
37.117 AFC Interest List
(a) If all service authorization slots are filled at the time of the request for services,
DADS places the individual on an interest list for the service. DADS explore other
options for meeting the individual’s needs.
(b) An individual who request placement on an interest list must be a Texas resident.
(c) DADS releases an individual from the interest list on a first-come, first-served basis;
eligibility determinations are conducted as slots for service become available.
(d) The DADS case manager contacts the individual released from the interest list to
determine continued interest in services. If the individual is no longer interested in
services and voluntarily withdraws, the case manager takes no further action. If the
individual is interested in services, the case manager proceeds to the assessment process.
37.118 Bypass Criteria and Presumptive Eligibility
(a) In some situations, an individual may meet the criteria to bypass the interest list and
begin receiving services with DADS Regional Director approval. The criteria for an
immediate or expedited intake are:
(1) unable to continue independent living or have no caregiver who is able to provide a
home; or
(2) a referral by Adult Protective Services (AFC). The DADS regional contract
manager must approve placement of APS individuals.
(b) The regional director or his designee makes the final decision on whether an
individual is approved to bypass the interest list will be made by. Releasing a name from
the interest list and offering services to an individual is subject to available regional funds
and slots.
(c) An applicant who is approved to bypass the interest list is eligible to receive AFC
services while DADS verifies income and resources if the applicant:
(1) is a new applicant for services;
(2) appears to be financially eligible based on the declaration of income and resources
on his application for services; and
(3) meets the age and need criteria for AFC services.
(d) the applicant must provide the necessary verifications of income and resources within
30 days after the application date to continue receiving services.
37.119 Assessment Process (a) DADS conducts an initial face-to-face interview to begin determination of eligibility
for Adult Foster Care. DADS schedules an initial interview by telephone or in writing to
take place in the person’s home, if possible.
(b) DADS takes no further action on the request for services, if the person withdraws the
request before DADS begins the initial interview.
(c) During the face-to-face interview, the applicant must provide information on his
medical conditions, functional limitations, household composition, home environment,
and resources available to meet his needs, so the DADS case manager can complete the
standardized assessment instrument and the assessment process.
(d) If the case manager is unable to contact the applicant after repeated attempts or the applicant refuses to cooperate with scheduling the visit or providing required information within 30 days of the intake date, the DADS case manager closes the request for services and sends a denial notice to the applicant.
37.120 Service Plan Development
(a) The DADS case manager and the individual (to the extent of his ability), or the
individual’s designated personal representative, develop a service plan, based on the
individual’s needs, priority level and available resources.
(b) The DADS case manager considers the use of other resources available through
DADS, other agencies, community resources, and available caregivers in developing the
service plan to meet the individual’s needs. Services are only authorized if the
individual’s needs cannot be met through other resources.
(c) The service plan determines the tasks to be authorized by the DADS case manager on
the DADS' authorization for community care services form.
(d) The applicant must select a provider contracted to provide AFC services in his service
area. The applicant has freedom of choice among the contracted providers. The applicant
can:
(1) select the AFC home, or
(2) choose to take the next home on the regional facility rotation log.
(3) The applicant must indicate his choice of available homes before beginning the
assessment process. If an applicant already has a home in mind that does not have space
available, he may elect to remain on the interest list until a space is available in that
home.
37.121 Certification and Authorization
(a) The DADS case manager makes the final eligibility determination within 30 days
after the face-to-face interview.
(b) If the applicant is determined eligible, the DADS case manager:
(1) arranges on or before the date the individual moves into the AFC home, a meeting
with the individual and the AFC provider to discuss the individual’s care plan and to
complete the individual and provider agreement.
(A) The individual’s personal representative may be included in the meeting and
the meeting should preferably take place in the AFC home.
(B) The meeting must include:
(i) discussion of the individual’s needs and care plan as indicated on the
standardized assessment instrument and agreement on how the individual’s
needs should be met through daily care and activities. This includes
documenting any special needs of the individual or special agreements between
the individual and the provider.
(ii) completion of the individual and provider agreement including
agreement on the room and board charges and bedhold charges as well as any
other agreements between the individual and the provider in accordance with
§37.122 of this chapter (relating to Personal Needs Allowance in Determining
Room and Board) and §37.123 of this chapter (relating to Bedhold Charges).
(2) negotiates a move-in date with the individual and the AFC provider;
(3) sends the provider the final authorization for AFC on the DADS authorization
for community care services form; and
(4) sends the applicant written notification of eligibility for AFC.
(c) If the applicant is determined ineligible, the DADS case manager sends the applicant
written notification of ineligibility for AFC.
37.122 Personal Needs Allowance in Determining Room and Board
(a) The individual keeps a monthly allowance for his personal and medical expenses.
(1) Individuals with Medicaid coverage must be allowed to keep at least $50 a month
for personal needs.
(2) Individuals without Medicaid coverage must be allowed to keep at least $85 a
month for personal needs and medical expenses.
(3) All individuals must be allowed to keep at least one-half of any cost-of-living
adjustment.
(4) In addition to the monthly allowance, an individual with earned income keeps all
of the earned income up to a maximum of $65 per month.
(b) If the individual has a change in income or expenses, he or the provider may request a
change in the amount of room and board payment. Changes in the room and board
payment are negotiated between the individual and the provider and are documented on
the DADS room and board amendment to the individual and provider agreement.
(c) The individual’s contribution to the cost of care when added to the DADS payment
may not exceed the DADS rate established for adult foster care,
37.123 Personal Leave and Bedhold Charges
(a) The individual is eligible for 14 days of personal leave from the adult foster care
home each calendar year. DADS pays the daily rate for up to 14 days of leave for each
12-consecutive-month period when an authorized individual is away from the foster
home. Payment for leave in excess of 14 days per year is the responsibility of the
individual.
(b) Bedhold charges are negotiated between the individual and provider in the room and
board agreement. Bedhold charges may not exceed the daily room and board rate.
(c) The adult foster care provider is responsible for notifying the case manager when the
individual is away from the foster home for personal leave or hospitalization.
37.124 Monitoring
(a) The DADS case manager monitors the individual’s status, satisfaction with services
received, and adequacy of the service plan to meet the individual’s needs. DADS
determines the frequency and type of monitoring conducted.
(b) If the individual is dissatisfied with services or requests changes in services, the
DADS case manager takes the appropriate action to resolve the issue or authorize the
change in service.
37.125 Changes
(a) Eligibility. The individual must promptly report to the DADS case manager, any
changes that may affect eligibility in accordance with §37.104, §37.105, §37.106,
§37.110, §37.113, §37.114, and §37.115 of this title. The individual who willfully fails to
report changes and continues to receive services for which he is not eligible may be
prosecuted for fraud.
(b) Service Plan Changes. The individual or the individual’s designated personal
representative may request changes in the tasks or hours authorized based on changes in
the individual’s medical condition, functional needs, or available resources.
(c) Provider requirement. The AFC provider must notify the DADS case manager of
changes in accordance with §48.8907 of this title (regarding Provider Responsibilities)
{ADD LINK}
(d) Case manager actions. The DADS case manager takes appropriate action on the
request for a change. If approved, the DADS case manager:
(1) develops the service plan in accordance with §37.120 of this chapter (relating to
Service Plan Development);
(2) sends the DADS authorization for community care services form to the provider
making the change, and
(3) sends written notification to the individual advising of the change in the service
plan.
(4) If the change request is not approved, the DADS case manager sends a written
notice in accordance with §37.135 of this chapter (relating to Notice of Adverse
Action and Right to Appeal).
37.126 Reassessment
(a) Annually, the DADS case manager re-determines the individual’s functional
eligibility for services and reassesses the individual’s functional needs. The DADS case
manager must make a face-to-face contact with the individual in the adult foster care
home.
(1) The DADS case manager completes the standardized assessment instrument and
the DADS assessment and service plan form for Adult Foster Care to determine if the
individual continues to be appropriate for foster care placement.
(2) If the individual is no longer appropriate for adult foster care and his needs can no
longer be met in the home, the case manager discusses alternative living
arrangements with the individual and the individual’s personal representative.
(b) The DADS case manager re-determines financial eligibility within 24 months of the
previous determination of financial eligibility.
(c) To continue receiving services, the individual must meet eligibility requirements in
accordance with §37.104, §37.105, §37.106, §37.110, §37.113, §37.114 and §37.115 of
this chapter at the time the DADS case manager re-determines eligibility.
(d) An individual who does not meet all eligibility requirements is not eligible. The
DADS case manager terminates services and sends a written notice in accordance with
§37.135 of this chapter (relating to Notice of Adverse Action and Right to Appeal).
37.127 Required Service Suspensions
(a) The Adult foster care provider suspends services if an individual:
(1) permanently leaves the contracted service delivery area;
(2) moves to a location where services cannot be provided under the AFC Program;
(3) dies;
(4) is admitted to an institution, as defined in §37.133 of this chapter (relating to
Terminations); or
(5) requests that services end.
(b) After receiving notice of suspension from the provider, the DADS case manager
verifies the individual can no longer receive services as listed in (a) (1)-(5). If verified,
the DADS case manager terminates services in accordance with 37.133 of this chapter
(relating to Terminations).
37.128 Required Immediate Suspension and Crisis Intervention
(a) To receive services, the individual must not jeopardize the health and safety of the
DADS program staff, service providers delivering services or others. If a situation exists
as described in this section, DADS or the provider must immediately suspend services to
the individual.
(1) The individual exhibits reckless behavior that could result in imminent danger to
the health and safety of the individual, DADS staff, provider staff or other persons
Examples include:
(A) exhibiting weapons;
(B) making direct spoken threats of physical harm, force or death by the individual;
(C) physically attacking a person with or without a weapon; or
(D) evidence of using, manufacturing or selling illegal drugs.
(b) Upon suspension of services, the DADS case manager or the provider must make an
immediate referral for appropriate crisis intervention services to:
(1) the Texas Department of Family and Protective Services Adult Protective Services
(APS) or other appropriate agencies; or
(2) local law enforcement, if appropriate.
(c) If the provider is asking the individual to move immediately from the AFC home, the
DADS case manager must make every effort to locate another living arrangement as soon
as possible. If other living arrangements are not readily available for the individual, refer
to APS to assist in locating appropriate placement for the individual.
(d) If the individual can remain in the home, the DADS case manager contacts the
individual or his personal representative and convenes an interdisciplinary team meeting
to discuss resolution on the issues, in accordance with §37.130 of this title (relating to
Interdisciplinary Team).
(e) If the issue cannot be resolved, the DADS case manager must make every effort to
locate another living arrangement as soon as possible. If other living arrangements are not
readily available for the individual, the DADS case manager refers to APS to assist in
locating appropriate placement for the individual.
(f) The DADS case manager must notify the individual of the termination of services and
the right to appeal the decision in accordance with §37.133 of this title (relating to
Terminations) and in accordance with §37.135 of this title (relating to Notice of Adverse
Action and Right to Appeal). Services do not continue during the appeal process.
37.129 Optional Service Suspensions
(a) To receive AFC services, an individual must comply with AFC program requirements
including and allowing determination of eligibility, delivery of services according to the
service plan and monitoring of services. The AFC provider must notify the DADS case
manager if:
(1) the individual has a substantial and documented pattern of verbal abuse,
harassment or sexual harassment of service providers, not related to the individual’s
disability, which results in an inability to provide services to the individual; or
(2) the individual has a substantial and documented pattern of discrimination against
the service providers or DADS staff on the basis of race, color, national origin, age, sex,
or disability in violation of applicable law, that has not improved with appropriate
intervention and which results in an inability to provide service(s) to the individual; or
(3) the individual refuses to allow services to be delivered according to the service
delivery provisions;
(4) the individual fails to pay the required contribution to the cost of care (room and
board) by the agreed due date;
(b ) The DADS case manager contacts the individual or his personal representative and
convenes an interdisciplinary team (IDT) meeting to discuss resolution on the issues, in
accordance with §37.130 of this chapter (relating to Interdisciplinary Team).
(1) If the issue is resolved during the first or any subsequent IDT meetings, the DADS
case manager continues authorization of AFC services.
(2) If the issue cannot be resolved during the first or any subsequent IDT meetings,
the DADS case manager may at any point during this process, proceed to termination of
services in accordance with §37.133 of this chapter (relating to Terminations)
(c) After the IDT meeting when the issue is resolved, the DADS case manager sends a
written notification to the individual detailing the results of the IDT meeting and advising
services will be terminated if the individual does not comply with AFC program
requirements or continues behavior that results in non-compliance with AFC program
requirements.
(d) If there is a second occurrence, the DADS case manager convenes a second IDT
meeting. If the issue is resolved during the IDT meeting, the DADS case manager sends
the individual a second written notification in accordance with subsection (c) of this
section (relating to Optional Service Suspensions).
(e) If there is a third occurrence, the DADS case manager convenes a third IDT meeting
and if the issue is resolved, send the individual a third written notification in accordance
with subsection (c) of this section (relating to Optional Service Suspensions).
(f) If there is a fourth occurrence of the individual repeatedly refusing to cooperate with
AFC program requirements, the DADS case manager:
(1) proceeds with the termination of services in accordance with §37.133 of this
chapter, (relating to Terminations);
(2) provides notification of termination of services and offers the right to appeal.
Services do not continue during the appeal process;
(3) negotiates a time frame with the individual, personal representative and the
adult foster care (AFC) provider for the individual to move. The time frame is determined
on a case-by-case basis depending on the urgency and severity of the situation and how
quickly an appropriate placement can be arranged.
37.130 Interdisciplinary Team (IDT)
(a) The IDT is a designated group that includes the following people who meet when the
DADS case manager or provider identifies the need to discuss service delivery issues or
barriers to service delivery:
(1) the individual or the individual's representative, or both;
(2) a provider representative; and
(3) a DADS representative, who may be:
(A) the case manager (or designee);
(B) the case manager's supervisor (or designee);
(C) the contract manager (or designee); or
(D) the regional nurse (or designee).
(b) The DADS case manager or provider convenes an IDT meeting:
(1) within three working days or sooner as appropriate for the situation, after the date
the provider notifies the DADS case manager issues as described in §37.128 of this
chapter (relating to Required Immediate Suspension and Crisis Intervention); or §37.129
of this chapter (relating to Optional Suspensions); or
(2) within seven working days after the date the provider identifies an issue that
prevents the provider from carrying out a requirement of the AFC Program.
(c) Requirements of the IDT meeting.
(1) The IDT meeting must be conducted in person.
(2) The IDT must:
(A) evaluate the issue and discuss the AFC program requirements for continued
services. The issue requiring the suspension must be discussed;
(B) identify any solutions to resolve the issue, including the individual’s
understanding of the issue and what must be done to resolve the issue;
(C) document the requirements for continued services; and
(D) in situations of threats to health and safety, the DADS case manager and
provider may agree that a physician’s statement of evaluation in accordance with §37.135
(relating to Reinstatement of Service After Termination for Non-Compliance or Threats
of Health and Safety) is required prior to the resumption of services, confirming the
individual is no longer a threat to health and safety. In this situation, the DADS case
manager must send a notice of suspension to the individual.
(3) The IDT must conclude with one of the following courses of action:
(A) The individual agrees to cooperate with AFC program requirements and services
are reinstated. The provider within two business days after the IDT meeting must:
(i) implement the recommendations of the IDT; or
(ii) discharge the individual from the provider and refer the individual to the case
manager for referral to another provider.
(B) The individual does not agree to cooperate with the AFC program requirements
and the DADS case manager begins the termination process.
(d) The DADS case manager must document the IDT meeting and the conclusions in the
individual's file, including the:
(1) specific reasons for calling the IDT meeting;
(2) participants in the IDT meeting;
(3) recommendations of the IDT; and
(4) actions as a result of the IDT recommendations.
37.131 Denial of the Request for Services
(a) An individual applying for AFC services is not eligible if he does not meet the
eligibility requirements in:
(1) §37.504 (relating to Age Eligibility Criteria); {ADD Links to Rules}
(2) §37.505 (relating to Financial Eligibility Criteria);
(3) §37.512 (relating to Functional Eligibility Criteria);
(4) §37.513 (relating to Unmet Need Eligibility Criteria); or
(5) §37.514 (relating to Other Program Eligibility Criteria).
(b) If an individual receiving services requests an increase in services and the request does
not meet program requirements, the DADS case manager may deny the request.
(c) The DADS case manager notifies the individual in writing of the ineligibility or denial
of a service request and the right to appeal the decision in accordance with §37.135 of this
title (relating to Notice of Adverse Action and Right to Appeal).
§37.132 Reduction in Service
(a) DADS may reduce the services an individual is receiving based on a reassessment by
the DADS case manager on the standardized assessment instrument.
(b) The DADS case manager notifies the individual in writing of the reduction in services
and the right to appeal the decision in accordance with §37.135 of this title (relating
to Notice of Adverse Action and Right to Appeal).
37.133 Terminations
(a) DADS terminates AFC services when an individual:
(1) dies;
(2) permanently leaves the contracted service delivery area;
(3) is admitted to a nursing facility, state school, state hospital, or intermediate care
facility for individuals with an intellectual disability for longer than 60 days;
(4) is admitted to a hospital and the hospital stay exceeds 90 days;
(5) is incarcerated for longer than 60 days;
(6) no longer meets eligibility requirements:
(7) requests service termination;
(8) has repeatedly refused to allow AFC services to be delivered according to AFC
program requirements in §37.129 of this chapter (relating to Optional Service
Suspensions), except in an involuntary protective services case;
(9) has refused to comply with the service delivery provisions and the issue cannot be
resolved in accordance with §37.129 of this chapter, (relating to Optional Service
Suspensions);
(10) has threatened the health and safety of others or failed to maintain an
environment that ensures the health and safety of others and the issue cannot be resolved
in accordance with §37.128 of this chapter (relating to Required Immediate Suspension
and Crisis Intervention); or
(11) moves to a location where services cannot be provided under the AFC Program.
(b) The DADS case manager notifies the individual in writing of the termination in
services and the right to appeal the decision in accordance with §37.135 of this chapter
(relating to Notice of Adverse Action and Right to Appeal).
(c) Services do not continue during the appeal process, if services were terminated in
accordance with§37.128 (a)(1) of this chapter (relating to Required Immediate
Suspension and Crisis Intervention).
37.134 Reinstatement of Services After Termination for Non-Compliance or
Threats to Health and Safety
(a) If an individual who was previously terminated for failure to comply with AFC
Program requirements in §37.129 of this chapter (relating to Optional Service
Suspension) reapplies for services, the individual must agree to comply with the AFC
program requirements and with DADS staff and AFC provider staff to facilitate service
delivery, if determined eligible for services.
(b) If an individual, who was previously terminated in any DADS program due to threats
to health or safety, reapplies for services, the individual must provide proof to the DADS
case manager that the issue resulting in the previous denial of services has been resolved
and there is no longer a threat to the health and safety of others. This documentation must
be submitted prior to being assessed for program eligibility and within 30 calendar days
of the request for documentation. DADS may require the individual to:
(1) furnish a letter signed and dated by a licensed or certified physician, psychiatrist,
or psychologist, stating he has been treated or is receiving treatment and is no longer a
threat to himself or others; or
(2) sign a DADS form authorizing release of information, and allow a collateral
contact with his licensed or certified physician, psychiatrist, or psychologist. The contact
must provide information that the applicant has been treated or is receiving treatment and
the applicant is no longer a threat to himself or others.
(c) After receiving the required confirmation that the individual is no longer a threat to
the health and safety of himself or others, the DADS case manager proceeds with the
application process and assessment for program eligibility.
(d) If the individual does not provide the required confirmation within the required time
frames, the DADS case manager closes the request for services and no further action is
required.
37.135 Notice of Adverse Action and Right to Appeal
(a) The DADS case manager notifies the individual in writing of any action that denies,
suspends, reduces or terminates services. The DADS case manager sends the notice of
adverse action to the individual at least 12 calendar days before the effective date of the
action, except in situations as described in §37.128, Required Immediate Suspension and
Crisis Intervention.
(b) In situations as described in §37.128, Required Immediate Suspension and Crisis
Intervention, in which services have been suspended, the DADS case manager sends the
written notice of adverse action without advance notice, if the crisis cannot be resolved.
(c) An individual has the right to appeal any decision that denies, reduces, or terminates
his services and request a fair hearing in accordance with Title I, Texas Administrative
Code (TAC) §357.