Texas Register, Volume 18, Number 22, Pages 1783-1825, March 19, 1993 Page: 1,798
1783-1825 p. ; 28 cm.View a full description of this periodical.
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added to require that copies of the case man-
ager's written monthly reports to the nursing
facility must be provided to the resident or
legal representative upon receipt of a written
request.
One commenter asked that the sections
specify that communication techniques and
devices necessary to enable a resident to
communicate be used to assure the resident
full participation in all aspects of service plan-
ning, not just alternate placement. The de-
patment agrees and has modified the
language as requested in 402.159(a).
One commenter requested that a resident
who has been alternately placed be permitted
to move from one alternate setting to another
after leaving nursing facility. Another
commenter requested that individuals who al-
ready hve left the nursing facility should be
permitte, access to the OBRA Targeted
Waiver Program. The department responds
that HCFA has determined that former nurs-
ing facility residents may lose their eligibility
for the waiver should they select another al-
ternate setting after they initially have been
placed. The department has no choice but to
follow the HCFA guidelines.
One commenter questioned what should hap-
pen if a resident who has been determined to
require alternate placement refuses to leave
nursing facility. The department responds that
the nursing facility is responsible for discharg-
ing the resident, but that language has been
modified in 402.158(d) (5) to clarify the is-
sue.
A commenter recommended that professional
evaluations be obtained to ensure that a nurs-
ing facility resident can participate in making
decisions. The department responds that
evaluations by professionals are already in-
cluded in the requirements for service provi-
sion and that this issue is the subject of
current litigation and possible action by the
legislature.
One commenter requested that a timoerame
be specified in the subchapter during which
"follow-up services" are to be provided by the
MHMRA case manager. The department re-
sponds that its policy and procedure manual
requires the IDT to specify a timeframe for
follow up based on the individual's needs.
One commenter expressed concern that indi-
viduals in nursing facilities who are diagnosed
as having, a mental illness but who are not
experiencing an acute episode will not re-
ceive specialized services. The commenter
further stated that the definition of specialized
services for individuals with a mental illness
is vague and general when compared to the
definition for individuals with mental retarda-
tion or a related condition. The commenter
suggested that this was discriminatory but
acknowledged that those provisions of the
sruchapter were not being considered for re-
vision. The department responds that no
amendments to those provisions had been
proposed because the definitions are taken
from federal rules. Also, the nursing facility
and not the department is responsible for
providing mental health services to residents.
'A commenter expressed concern that few
appropriate alternatives in the community ex-
ist for persons with a mental illness. Thecommenter recommended state funding for
personal care homes, Medicaid waivers and
matching funds for persons with a mental
illness, and the designation by the depart-
ment of residential services as a core service.
The department responds that the recom-
mendations are beyond the scope of this
subchapter, but noted that funds for residen-
tial and mental health services have been
established for former nursing facility resi-
dents.
A commenter requested clarification concern-
ing who is to provide written notification to
nursing facility residents identified as needing
alternate placement that their Medicaid bene-
fits may be terminated. The commenter fur-
ther requested that the MHMRA case
manager be required to ensure receipt of the
notification. The department agrees and has
revised the appropriate provisions in
402.158(d)(1).
One commenter suggested that nursing facil-
ity residents may lose some placement op-
tions if they leave the nursing facility. The
department responds that 402.159(a) re-
quires the case manager to identify all possi-
ble consequences of various placement
alternatives to all nursing facility residents
seeking alternate placement.
Another commenter suggested that "commu-
nication accessibility" be defined and several
commenters suggested that each section of
the subchapter include statements requiring
that communication techniques and devices
be used with nursing facility residents. The
department responds that neither recommen-
dation is necessary since a statement in-
cluded in 402.159(a) has been modified to
clarify that appropriate communication tech-
niques and devices should be used to facili-
tate residents' participation in all aspects of
service planning.
Another commenter requested clarification
concerning which discussions with the resi-
dent or legal representative are to be
documented by the case manager. The de-
partment agrees and has revised 402.159(a)
to indicate that discussions regarding place-
ment preferences are to be documented.
Two commenters recommended clarification
concerning the right of the nursing facility
resident to refuse to allow an interdisciplinary
team (IDT) member to attend meetings at
which alternate placement is discussed. The
department has incorporated this provision in
402.159(b).
Two commenters requested clarification re-
garding the responsibilities of the MHMRA for
adult nursing facility residents who allegedly
may be incompetent. The department re-
sponds that 402.159(c) has been revised to
describe a process by which the IDT is to
determine by consensus whether or not a
resident who has no legal representative is
capable of providing legally adequate consent
to alternate placement activities. If the con-
sensus is that the resident cannot provide
such consent, the case manager must pro-
vide information to the resident's family or an
interested party concerning how to obtain a
legal guardian. Alternate placement activities
are to continue when a guardian is named.
Definitions of consensus and legally ade-
quate consent have been added to 402.153.Two commenters requested that certain de-
tailed procedures now included in the depart-
ment's policy and procedures manual be
incorporated into the subchapter. The depart-
ment responds that a provision has been
added in 402. 159 requiring MHMRAs' to
comply with all provisions descrbed in man-
ual. The manual is included as a reference in
402.159. Two commenters provided draft
documents containing detailed procedures
and requested ther inclusion in the
subchapter. The department responds that
applicable sections of the draft procedures
were previously incorporated; most provi-
sons in the draft documents are contrary to
Medicaid regulations and, therefore, may not
be incorporated into the subchapter.
Several commenters submitted remarks con-
ceming sections in the current subchapter for
which amendments were not proposed. One
commenter recommended that specialized
services for people with mental illness be
modified to also include people with chronic
mental illness and that all people with a men-
tal illness diagnosis be assessed. These rec-
ommendations exceed the requirements of
the Omnibus Reconciliation Act of 1987 and
proposed regulations from the Health Care
Financing Administration. This recommenda-
tion would also duplicate services to be pro-
vided by the nursing facility as required by the
applicable certification and licensure regula-
tions. Two commenters suggested that the
eligibility criteria for the Home and
Community-based Services Program-OBRA
(HCS-O) be modified to allow a former nurs-
ing facility resident who is alternately placed
into another program to enter the HCS-O
Program if they later choose to do so. This
issue has been raised with the Health Care
Financing Administration but no response has
been received to date.
The amendments and new sections are
adopted under the Health and Safety Code,
Title 7, 532.015, which provides the Texas
Board of Mental Health and Mental Retarda-
tion with rulemaking powers.
402.153. Definitions. The following
words and terms, when used in this
subchapter, shall have the following mean-
ings, unless the context clearly indicates
otherwise.
Advanced years-A chronological
age of greater than 64 years of age or a
chronological age of greater than 50 years
along with a chronic or acute medical con-
dition that is likely to significantly diminish
life expectancy as certified by a physician.
Basic needs-The provision or acqui-
sition of adequate food, clothing, safe and
sanitary shelter, support services, and medi-
cal services to sustain life.
Case manager-Staff member desig-
nated by the MHMRA to ensure that a
person receives needed resources and ser-
vices.
Comatose state-A condition of pro-
found unconsciousness caused by disease,
trauma, or toxic substance.
Consensus-A negotiated agreement
that all IDT members can and will support18 TexReg 1798 March 19, 1993 Texas Register *
18 TexReg 1798 March 19, 1993
Texas Register
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Texas. Secretary of State. Texas Register, Volume 18, Number 22, Pages 1783-1825, March 19, 1993, periodical, March 19, 1993; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth181704/m1/15/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.