TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 17. PREADMISSION SCREENING AND RESIDENT REVIEW (PASRR)

The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 17, Preadmission Screening and Resident Review (PASRR), consisting of Subchapter A, concerning general provisions; Subchapter B, concerning screening, expedited admission, and resident review; Subchapter C, concerning responsibilities; and Subchapter D, concerning vendor payment.

BACKGROUND AND PURPOSE

The purpose of the new sections is to address issues identified by the Centers for Medicare and Medicaid Services (CMS) regarding the Preadmission Screening and Resident Review (PASRR) program and to redesign the PASRR program in general. In December 2009, the Health and Human Services Commission (HHSC) received a letter from CMS outlining areas in which the current PASRR program in Texas does not appear to meet federal requirements. Specifically, CMS cited three issues. First, PASRR Level II evaluations must include a recommendation of specific specialized services needed by an individual prior to admission to a nursing facility. Second, nursing facility staff must not perform PASRR Level II evaluations. Third, the state must describe its resident review processes, specifically the roles and responsibilities of the state mental health and intellectual disability authorities, when the individual has a significant change in status.

SECTION-BY-SECTION SUMMARY

Proposed new §17.101 describes the PASRR program, including references to the federal regulations requiring states to have a PASRR program.

Proposed new §17.102 consists of definitions of words and terms used in the chapter.

Proposed new §17.103 describes the fair hearing process available to individuals who do not agree with a PASRR determination.

Proposed new §17.104 describes circumstances under which an individual is not subject to the PASRR Level II evaluation process.

Proposed new §17.201 describes the preadmission screening process, including the responsibilities of a nursing facility and local authority when an individual seeking admission to a nursing facility is not admitted through the expedited admission process.

Proposed new §17.202 describes the expedited admission process, including the responsibilities of a nursing facility and local authority when an individual whose medical condition at admission meets the convalescent care, terminal illness, severe physical illness, delirium, emergency protective services, respite, or coma criteria.

Proposed new §17.203 describes the resident review process, including circumstances that trigger a resident review and the responsibilities of a nursing facility and local authority.

Proposed new §17.301 describes documentation and notification responsibilities of an entity that refers an individual to a nursing facility.

Proposed new §17.302 describes the responsibilities of a nursing facility when responding to an individual's request for admission, including coordination with the local authority and the provision of specialized services.

Proposed new §17.303 describes the responsibilities of a local authority, including PASRR Level II evaluations, resident reviews, documentation requirements, time frames for completing tasks, and coordination requirements.

Proposed new §17.401 requires a local authority to complete a PASRR Level II evaluation before billing DADS. It also clarifies that the rate covers any travel necessary for conducting the evaluation; DADS does not pay any additional amounts for travel.

FISCAL NOTE

James Jenkins, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections are in effect, there are foreseeable implications relating to costs or revenues of state government. There are no foreseeable implications relating to costs or revenues of local government.

The effect on state government for the first five years the proposed new sections are in effect is an estimated additional cost of $959,743 in fiscal year (FY) 2013; $3,780,719 in FY 2014; $3,776,960 in FY 2015; $3,776,960 in FY 2016; and $3,776,960 in FY 2017.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections will not have an adverse economic effect on small businesses or micro-businesses, because local authorities are not small or micro-businesses and will be paid for the new requirement to conduct PASRR Level II evaluations.

PUBLIC BENEFIT AND COSTS

Carol Sloan, Interim DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years the new sections are in effect, the public benefit expected as a result of enforcing the new sections is that the PASRR program will meet federal requirements.

Ms. Sloan anticipates that there will not be an economic cost to persons who are required to comply with the new sections. The new sections will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jamie White at (512) 438-4481 in DADS Access and Intake Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R002, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st Street, Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 9R002" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

40 TAC §§17.101 - 17.104

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; and Texas Health and Safety Code, §§242.001 - 242.906, which authorizes DADS to license and regulate nursing facilities; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new sections affect Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§242.001 - 242.906; and Texas Human Resources Code, §161.021.

§17.101.Description of PASRR.

(a) Preadmission Screening and Resident Review (PASRR) is a federally mandated program. Each state is required to comply with Code of Federal Regulations, Title 42, Part 483, Subpart C, to ensure that any individual seeking admission into a Medicaid-certified nursing facility or currently residing in such a facility is screened and evaluated for mental illness, intellectual disability, and developmental disabilities.

(b) The purpose of the screening and evaluation is:

(1) to determine whether an individual identified as having mental illness, intellectual disability, or developmental disability needs nursing facility services:

(2) to identify alternate placement options when applicable; and

(3) to identify specialized services that may benefit the individual.

(c) A Medicaid-certified nursing facility must not admit an individual without a completed PASRR Level I screening form.

(d) If an individual is identified as having mental illness, intellectual disability, or developmental disability, a Medicaid certified nursing facility must not admit the individual without a complete PASRR Level II evaluation and determination except as allowed by this chapter.

§17.102.Definitions.

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

(1) Admitting nursing facility--A nursing facility that certifies in the LTC Online Portal that it can provide or arrange for specialized services identified in an individual's specialized services plan and admits the individual.

(2) Alternate placement--Assistance provided to a nursing facility resident or an individual seeking admission to a nursing facility by a local authority service coordinator or local authority case manager to locate and secure services chosen by the resident or LAR that meet the resident's basic needs in a setting other than a nursing facility. The services include the identification of specific services and supports available through alternate resources for which the resident may be eligible and an explanation of the possible consequences of selecting an alternate service.

(3) Collateral contact--A source of information that is knowledgeable about an individual's situation and that supports or corroborates information provided by the individual. Communication with a collateral contact may be made in person, over the telephone, or by mail.

(4) Coma--A state of unconsciousness characterized by the inability to respond to sensory stimuli as documented by a physician.

(5) Comprehensive care plan--A nursing facility plan of care prepared by an interdisciplinary team that includes measurable short-term and long-term objectives and timetables to meet a resident's needs and developed for the resident after admission. The plan addresses at least the following needs: medical, nursing, rehabilitative, psychosocial, dietary, activity, and resident's rights. The plan includes strategies developed by the team, consistent with a physician's prescribed plan of care, to assist a resident in eliminating, managing, or alleviating health or psychosocial problems identified through assessment. Planning includes:

(A) goal setting;

(B) establishing priorities for management of care;

(C) making decisions about specific measures to be used to resolve the resident's problems; and

(D) assisting in the development of appropriate coping mechanisms.

(6) Convalescent care--A type of care provided after an individual's release from an acute care hospital that is part of a medically prescribed period of recovery that does not exceed 120 days.

(7) DADS--The Texas Department of Aging and Disability Services. A state agency that provides long-term services and supports for people who are aging and for people with intellectual and physical disabilities. DADS also licenses and regulates providers of these services. DADS is the state authority for intellectual and developmental disabilities for the purposes of the PASRR program.

(8) Dementia--A degenerative disease of the central nervous system as diagnosed by a physician in accordance with the current revision of the International Classification of Diseases, Clinical Modification.

(9) Delirium--A serious disturbance in an individual's mental abilities that results in a decreased awareness of the individual's environment and confused thinking.

(10) Developmental disability--As defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000, Section 102(8), a severe, chronic disability of an individual that:

(A) is attributable to a mental or physical impairment or combination of mental and physical impairments;

(B) is manifested before the individual attains 22 years of age;

(C) is likely to continue indefinitely;

(D) results in substantial functional limitations in three or more of the following areas of major life activity:

(i) self-care;

(ii) receptive and expressive language;

(iii) learning;

(iv) mobility;

(v) self-direction;

(vi) capacity for independent living; and

(vii) economic self-sufficiency; and

(E) reflects the individual's need for a combination and sequence of special, interdisciplinary, or generic services, individualized supports, or other forms of assistance that are of lifelong or extended duration and are individually planned and coordinated.

(11) Disposition--The final residential placement of an individual in the PASRR program. The disposition changes if the individual makes any changes to the individual's residential location.

(12) DSHS--The Texas Department of State Health Services. A state agency that provides state-operated health care services including hospitals, health centers, and health agencies. DSHS is the state mental health authority for the purpose of the PASRR program.

(13) Emergency protective services--Services that are furnished by DADS or the Department of Family Protective Services (DFPS) to an elderly or disabled person who has been determined to be in a state of abuse, neglect, or exploitation if DADS or DFPS determines that the services are necessary to prevent the elderly or disabled person from returning to a state of abuse, neglect, or exploitation. These services may include case management, and arranging for psychiatric and health evaluations, home care, day care, social services, health care, respite services, and other services consistent with this chapter.

(14) Exempted hospital discharge--A hospital discharge that occurs when a physician has certified that an individual who is suspected of having a mental illness or intellectual or developmental disability is likely to require less than 30 days of nursing facility services for the condition for which the individual was hospitalized.

(15) Expedited admission--A nursing facility admission that occurs when an individual is:

(A) suspected of having mental illness, intellectual disability, or developmental disability; and

(B) meets the criteria for one of the following categories: convalescent care, terminal illness, severe physical illness, delirium, emergency protective services, respite, or coma.

(16) Interdisciplinary team (IDT) meeting--A meeting of intellectual disability, developmental disability, or mental health professionals, paraprofessionals, and other concerned persons, as appropriate, who assess an individual's treatment, training, and habilitation needs and make recommendations for services, including recommendations for whether the individual is best served in a facility or in a community setting.

(A) Team membership always includes:

(i) the individual;

(ii) the individual's LAR, if any; and

(iii) any person specified by the local authority, as appropriate, who is professionally qualified or certified or licensed with special training and experience in the diagnosis, management, needs, and treatment of individuals with intellectual disabilities, developmental disabilities, or mental illness.

(B) Other participants in IDT meetings may include:

(i) other concerned persons whose inclusion is requested by the individual or the LAR;

(ii) at the discretion of the local authority, persons who are directly involved in the delivery of services to individuals with intellectual disabilities, developmental disabilities or mental illness; and

(iii) if the individual is school eligible, representatives of the appropriate school district.

(17) Intellectual disability--Formerly referred to as mental retardation, as defined in the Code of Federal Regulations (CFR) Title 42 §483.102(b)(3).

(18) Legally authorized representative (LAR)--The parent of a minor child, the legal guardian, or the surrogate decision maker of an applicant or a resident of a nursing facility.

(19) Level I screening--The process of identifying an individual with an indication of mental illness, intellectual disability, or a developmental disability who requires a PASRR Level II evaluation.

(20) Local authority--An entity to which the Health and Human Services Commission delegates authority and responsibility within a specified region for the planning, policy development, coordination, resource development and allocation, and for supervising and ensuring the provision of mental health services to individuals with mental illness, or intellectual or developmental disability in one or more local service areas.

(21) Long Term Care (LTC) Online Portal--A web-based application of the Texas Medicaid and Healthcare Partnership used by providers to submit forms, screenings, evaluations and the long term services and supports Medicaid identification section of the minimum data set (MDS) assessment.

(22) Minimum data set (MDS) assessment--A standardized collection of demographic and clinical information that describes an individual's overall condition. A licensed nursing facility in Texas is required to submit an MDS assessment for a resident admitted into the facility.

(23) Mental illness--Serious mental illness, as defined in 42 CFR §483.102(b)(1).

(24) Nursing facility--A Medicaid-certified facility that is licensed in accordance with the Texas Health and Safety Code, Chapter 242.

(25) Ongoing services--A specialized service that has been approved for the following authorization period:

(A) 180 days for an individual with an intellectual or developmental disability; or

(B) 180 or 365 days for an individual with mental illness.

(26) PASRR--Preadmission screening and resident review.

(27) PASRR determination--A decision made by DADS, DSHS, or their designee in accordance with Chapter 19, Subchapter Y of this title (relating to Medical Necessity Determinations) whether an individual requires the level of care provided in a nursing facility and whether the individual has a need for specialized services, based on information in the PASRR Level II evaluation. A report documenting the determination is sent to the individual or LAR.

(28) PASRR Level II evaluation--A face-to-face evaluation performed by a local authority at the location of the referring entity or nursing facility to assess an individual's need for specialized services, alternate placement options for an individual, and the need for care in a nursing facility or other setting, such as an intermediate care facility for individuals with an intellectual disability or related conditions.

(29) Readmission--An individual who is readmitted to a nursing facility from a hospital to which the individual was transferred for the purpose of receiving care.

(30) Referring entity--The entity that refers an individual to a nursing facility, which includes a hospital, attending physician, LAR or other personal representative selected by the individual, a family member of the individual, or a representative from an emergency placement source, such as law enforcement.

(31) Resident--An individual who resides in a Medicaid-certified nursing facility and receives services provided by professional nursing personnel of the facility.

(32) Resident review--A process that determines if a resident with mental illness, intellectual disability or developmental disability requires:

(A) nursing facility services;

(B) specialized services; or

(C) alternate placement.

(33) Respite--Services provided on a short-term basis to an individual because of the absence of or the need for relief by an individual's unpaid caregiver.

(34) Selected nursing facility--A nursing facility identified by an individual, a referring entity, or a local authority as a potential care setting for an individual.

(35) Severe physical illness--An illness resulting in ventilator dependence or diagnosis such as chronic obstructive pulmonary disease, Parkinson's disease, Huntington's disease, amyotrophic lateral sclerosis, or congestive heart failure, that results in a level of impairment so severe that the individual could not be expected to benefit from specialized services.

(36) Specialized services--Additional support services that are identified through the PASRR Level II evaluation and determination process and are provided to individuals who are Medicaid eligible and have an intellectual disability, developmental disability, or mental illness.

(A) The following specialized services are available for individuals with intellectual or developmental disabilities:

(i) physical therapy, occupational therapy, and speech therapy, which require an evaluation by a licensed therapist;

(ii) customized adaptive aids, which require an evaluation by a physical therapist or occupational therapist; and

(iii) targeted case management, including service coordination, vocational training, and alternate placement coordination.

(B) The specialized services that are available for individuals with mental illness are defined in 25 TAC Chapter 412, Subchapter I (relating to MH Case Management) and 25 TAC Chapter 419, Subchapter L (relating to Mental Health Rehabilitative Services).

(37) Surrogate decision maker (SDM)--An actively involved family member of an individual who has been identified by an IDT as the SDM in accordance with Texas Health and Safety Code §313.004 and who is available and willing to consent on behalf of the individual.

(38) Terminal illness--A medical prognosis that an individual's life expectancy is six months or less if the illness runs its normal course. An individual's medical prognosis is documented by a physician's certification, which is kept in the individual's medical record maintained by a nursing facility.

§17.103.Fair Hearing Process.

(a) An individual, or an individual's LAR, responsible party, or SDM who is not in agreement with a PASRR determination that the individual does not require the nursing facility level of care may request a fair hearing to appeal the determination in accordance with 1 TAC Chapter 357, Subchapter A (relating to Uniform Fair Hearing Rules).

(1) If the hearing officer reverses the determination, a nursing facility may admit the individual immediately. If the individual meets all other eligibility requirements, the facility may receive vendor payments.

(2) If the hearing officer sustains the determination, the nursing facility must not admit the individual.

(b) An individual, or an individual's LAR, responsible party, or SDM who is not in agreement with a denial of specialized services may request a fair hearing to appeal the denial in accordance with 1 TAC Chapter 357, Subchapter A.

(1) If the hearing officer reverses the denial, the nursing facility may continue to provide the service as outlined in the original specialized services request.

(2) If the hearing officer sustains the denial, the nursing facility must not provide the service outlined in the original request.

§17.104.Exceptions to PASRR Level II Evaluations and Determinations.

(a) Except as provided in subsection (b) of this section, a nursing facility must not admit an individual who has not had a PASRR Level II evaluation and determination performed before admission.

(b) A nursing facility may admit an individual who has not had a PASRR Level II evaluation and evaluation performed if the individual:

(1) has a Level I screening that does not indicate that the individual has an intellectual disability, developmental disability, or mental illness;

(2) is admitted directly from a hospital after receiving acute inpatient care at the hospital and the individual was a resident of the nursing facility immediately before hospitalization;

(3) meets the following criteria:

(A) is admitted to any nursing facility directly from a hospital after receiving acute inpatient care at the hospital;

(B) requires nursing facility services for the condition for which the individual received care in the hospital; and

(C) is certified by an attending physician, before admission to the nursing facility, as likely to require less than 30 days of nursing facility services;

(4) has a terminal illness as defined for hospice purposes in Code of Federal Regulations, Title 42, §418.3; or

(5) has not had an interruption in continuous nursing facility residence other than for acute care.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2013.

TRD-201300494

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 24, 2013

For further information, please call: (512) 438-4162


SUBCHAPTER B. SCREENING, EXPEDITED ADMISSION, AND RESIDENT REVIEW

40 TAC §§17.201 - 17.203

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Health and Safety Code, §§242.001 - 242.906, which authorizes DADS to license and regulate nursing facilities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new sections affect Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§242.001 - 242.906; and Texas Human Resources Code, §161.021.

§17.201.Preadmission Screening Process.

(a) Except as provided in §17.301 of this chapter (relating to Referring Entity Responsibilities), a referring entity must:

(1) complete a Level I screening when an individual is seeking admission into a nursing facility;

(2) notify the local authority if an individual has an indication of mental illness, intellectual disability, or developmental disability and is seeking admission into a nursing facility; and

(3) provide a copy of the completed Level I screening form to the local authority for an individual who has an indication of mental illness, intellectual, or developmental disability.

(b) The local authority must:

(1) travel to the referring entity site within 72 hours after receiving notification from the referring entity;

(2) complete the PASRR Level II evaluation with the individual and review medical records to evaluate the individual; and

(3) enter the data from the Level I screening and PASRR Level II evaluation in the LTC Online Portal within seven calendar days after receiving notification from the referring entity, which documents the individual's:

(A) nursing facility options;

(B) alternate placement options; and

(C) recommended specialized services.

(c) The nursing facility identified on the LTC Online Portal must:

(1) check the LTC Online Portal for the Level I screening and PASRR Level II evaluation; and

(2) document in the LTC Online Portal whether the individual's needs can be met in the facility.

(d) The admitting nursing facility and the local authority must take the actions described in this subsection post admission.

(1) The nursing facility contacts the local authority to schedule an IDT meeting to discuss specialized services.

(2) The local authority and nursing facility participate in the IDT meeting.

(3) The nursing facility includes the specialized services agreed to by the individual or LAR in the comprehensive care plan.

(4) The nursing facility identifies the services it is responsible for providing in the LTC Online Portal.

(5) The nursing facility and local authority provide to the individual specialized services as agreed to by the IDT.

(e) In compliance with the 42 CFR §483.122, when a preadmission screening has not been completed prior to admission, federal financial participation (FFP) is available only for services furnished after the PASRR Level II Evaluation and determination has been completed and submitted in the LTC Online Portal.

§17.202.Expedited Admission Process.

(a) A referring entity must notify the nursing facility in the LTC Online Portal of an individual whose Level I screening and Expedited Admission Form indicate that the individual meets the convalescent care, terminal illness, severe physical illness or coma criteria, at which point the individual may be discharged from the referring entity to the nursing facility for care.

(1) The nursing facility must:

(A) validate the criteria for one of the categories listed above;

(B) enter the Level I screening and Expedited Admission Form in the LTC Online Portal;

(C) contact the local authority to request a PASRR Level II evaluation; and

(D) initiate admission activities.

(2) Within seven calendar days after receiving notification from the nursing facility, the local authority must:

(A) complete the PASRR Level II evaluation face to face with the individual;

(B) develop a list of recommended specialized services based on the PASRR Level II evaluation;

(C) document the discussion of alternate placement; and

(D) enter the PASRR Level II evaluation in the LTC Online Portal.

(3) After the PASRR Level II evaluation is available on the LTC Online Portal, the nursing facility must check the LTC Online Portal to review the list of specialized services to determine if specialized services can be provided or arranged.

(A) If the nursing facility determines that it cannot provide or arrange for the specialized services, the nursing facility documents this decision in the LTC Online Portal.

(B) If the nursing facility can provide or arrange for the specialized services, the nursing facility may admit the individual to the nursing facility and completes the MDS assessment within 14 calendar days after the date the individual is admitted to the nursing facility.

(4) The nursing facility and the local authority must take the actions described in this paragraph post admission to the nursing facility.

(A) The nursing facility contacts the local authority to schedule an IDT meeting to discuss specialized services.

(B) The local authority and nursing facility participate in the IDT meeting.

(C) The nursing facility includes any specialized services agreed to by the individual or LAR in the comprehensive care plan.

(D) The nursing facility identifies the specialized services it is responsible for providing in the LTC Online Portal.

(E) The nursing facility and local authority provide specialized services to the individual as identified in the comprehensive care plan.

(5) DADS monitors a local authority that provides services to individuals with intellectual or developmental disabilities and the nursing facility for delivery of the specialized services that are identified in a resident's comprehensive care plan.

(6) DSHS monitors a local authority that provides mental health services for the delivery of specialized services that are identified in a resident's comprehensive care plan.

(b) If an individual's Level I screening and Expedited Admission Form indicate that an individual meets the delirium, emergency protective services, respite, or coma criteria, a nursing facility may:

(1) admit the individual;

(2) enter data from the Level I screening in the LTC Online Portal; and

(3) cooperate with the resident review process.

§17.203.Resident Review Process.

(a) A local authority must conduct a PASRR Level II evaluation if a resident has an indication of intellectual disability, developmental disability, or mental illness and:

(1) experiences a significant change in status as determined by the MDS Significant Change in Status Assessment Form, including a resident who transfers to another nursing facility;

(2) is admitted under the criteria for delirium, emergency protective services, respite, or coma categories;

(3) is admitted with an exempted hospital discharge and has exceeded the allowed 30 calendar-day stay in the nursing facility; or

(4) is determined by a nursing facility, DADS, or DSHS to need a resident review for any other reason.

(b) The LTC Online Portal generates an automated notification to the local authority for a resident who meets the criteria for resident review.

(c) The local authority must conduct a PASRR Level II evaluation at the nursing facility within seven calendar days after receiving the notification from the LTC Online Portal.

(1) If a resident requests alternate placement during the PASRR Level II evaluation, the local authority must make the referral for alternate placement.

(2) If the setting a resident was referred to for alternate placement cannot admit the resident, the resident review screening process continues as described in subsections (d) and (e) of this section.

(d) The local authority must enter the PASRR Level II evaluation in the LTC Online Portal within seven calendar days after receiving the notification from the LTC Online Portal.

(e) The nursing facility must check the LTC Online Portal for the PASRR Level II evaluation and review the list of recommended specialized services.

(1) If the nursing facility determines that it cannot provide or arrange for the specialized services, the nursing facility must assist the individual with the transfer process to another facility or alternate setting.

(2) If the nursing facility can provide or arrange for the specialized services, the nursing facility and the local authority must take the actions described in this paragraph.

(A) The nursing facility contacts the local authority to schedule an IDT meeting to discuss specialized services.

(B) The local authority and nursing facility participate in the IDT meeting.

(C) The nursing facility includes the specialized services agreed to by the individual or the individual's LAR in the comprehensive care plan.

(D) The nursing facility identifies the services it is responsible for providing in the LTC Online Portal.

(E) The nursing facility and local authority deliver specialized services to the individual as identified in comprehensive care plan.

(3) DADS monitors a local authority that provides services to individuals with intellectual and developmental disabilities and the nursing facility for delivery of the specialized services that are identified in a resident's comprehensive care plan.

(4) DSHS monitors a local authority that provides mental health services to individuals with mental illness for the delivery of specialized services that are identified in a resident's comprehensive care plan.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2013.

TRD-201300495

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 24, 2013

For further information, please call: (512) 438-4162


SUBCHAPTER C. RESPONSIBILITIES

40 TAC §§17.301 - 17.303

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Health and Safety Code, §§242.001 - 242.906, which authorizes DADS to license and regulate nursing facilities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new sections affect Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§242.001 - 242.906; and Texas Human Resources Code, §161.021.

§17.301.Referring Entity Responsibilities.

A referring entity must ensure the following activities are completed before an individual is admitted to a nursing facility:

(1) complete the Level I screening for an individual seeking admission into a nursing facility, unless:

(A) the referring entity is a family member, LAR, other personal representative selected by the individual, or a representative from an emergency placement source, such as law enforcement, in which case the nursing facility may complete the Level I screening; or

(B) the individual is being admitted to the same facility in which the individual resided prior to hospitalization, in which case the nursing facility may complete the Level I screening;

(2) contact the nursing facilities selected by the individual or LAR to notify the facilities of the individual's interest in admission;

(3) provide the completed Level I screening to the selected nursing facility for an individual meeting the expedited admission criteria, exempted hospital discharge, or an individual who does not have an indication of mental illness, intellectual disability, or developmental disability;

(4) contact the local authority and request a PASRR Level II evaluation for an individual with an indication of intellectual disability, developmental disability, or mental illness, for individuals who are admitted through preadmission process; and

(5) provide the completed Level I screening to the local authority for an individual with an indication of mental illness, intellectual disability, or developmental disability for individuals who are admitted through the preadmission process.

§17.302.Nursing Facility Responsibilities.

A nursing facility must:

(1) complete the Level I screening for an individual seeking admission to the nursing facility if the individual meets the criteria for the expedited admission process;

(2) enter the Level I screening into the LTC Online Portal;

(3) contact the local authority and request a PASRR Level II evaluation for an individual with an indication of mental illness, intellectual disability, or developmental disability who meets the criteria for Expedited Admission;

(4) check the LTC Online Portal for the recommended list of specialized services;

(5) coordinate with the local authority to schedule and participate in an IDT meeting to discuss the individual's recommended specialized services;

(6) ensure the delivery of specialized services that are identified in the comprehensive care plan; and

(7) allow the office of the State Long-Term Care Ombudsman staff or representatives from Disability Rights Texas to counsel and inform affected residents of their rights and options under PASRR.

§17.303.Local Authority Responsibilities.

A local authority must:

(1) complete a PASRR Level II evaluation with the individual and in coordination with the LAR;

(2) enter the Level I screening completed by the referring entity in the LTC Online Portal for an individual who has an indication of mental illness, intellectual disability, or developmental disability being admitted to the nursing facility under the preadmission process;

(3) submit the PASRR Level II evaluation on the LTC Online Portal within seven calendar days after referral;

(4) coordinate with the nursing facility to complete the PASRR Level II evaluation during the expedited admission process;

(5) coordinate with the nursing facility to complete the PASRR Level II evaluation during the resident review process after receiving notification on the LTC Online Portal;

(6) make a referral for alternate placement, when requested by the individual or individual's LAR during the PASRR Level II evaluation;

(7) monitor the individual's transition to alternate placement;

(8) cooperate with the nursing facility to schedule an IDT meeting to discuss specialized services;

(9) participate in the IDT meeting;

(10) document in the LTC Online Portal that participation in the IDT has taken place;

(11) document in the LTC Online Portal whether or not specialized services for the individual have been agreed to in the comprehensive care plan;

(12) ensure delivery of the specialized services that are identified in the comprehensive care plan;

(13) enter additional nursing facilities on an individual's Level I screening in the LTC Online Portal when selected nursing facility placement options have been exhausted;

(14) check the Level I screening in the LTC Online Portal for an individual's nursing facility choices;

(15) inform the referring entity of the individual's placement options; and

(16) enter the final disposition of the individual on the Level I screening in the LTC Online Portal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2013.

TRD-201300496

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 24, 2013

For further information, please call: (512) 438-4162


SUBCHAPTER D. VENDOR PAYMENT

40 TAC §17.401

STATUTORY AUTHORITY

The new section is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Health and Safety Code, §§242.001 - 242.906, which authorizes DADS to license and regulate nursing facilities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The new section affects Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§242.001 - 242.906; and Texas Human Resources Code, §161.021.

§17.401.Reimbursement for PASRR Level II Evaluation.

(a) A local authority conducts, under the terms of the contract with DADS, the PASRR Level II evaluation of each individual with a Level I screening indicating the individual has or is suspected of having an intellectual disability, developmental disability, or mental illness.

(b) A local authority must complete the PASRR Level II evaluation before billing DADS.

(c) When completing the PASRR Level II evaluation, a local authority must:

(1) call the referring entity or nursing facility to schedule the PASRR Level II evaluation;

(2) review medical records;

(3) meet face-to-face with the individual;

(4) meet face-to-face with the individual's LAR or participate by telephone if the LAR is not able to attend in person;

(5) obtain additional required information to complete the PASRR Level II evaluation;

(6) enter the PASRR Level II evaluation into the LTC Online Portal; and

(7) participate in the individual's IDT meeting to discuss and arrange for the delivery of the individual's specialized services.

(d) The rate that DADS pays to a local authority for a PASRR Level II evaluation covers travel costs associated with completing the PASRR Level II evaluation. DADS does not pay any additional amounts for travel.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2013.

TRD-201300497

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 24, 2013

For further information, please call: (512) 438-4162


CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION

SUBCHAPTER Z. PREADMISSION SCREENING AND RESIDENT REVIEW (PASARR)

40 TAC §19.2500

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Department of Aging and Disability Services or in the Texas Register office, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §19.2500, concerning preadmission screening and resident review (PASRR), in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.

BACKGROUND AND PURPOSE

The purpose of the repeal is to remove outdated rules from DADS rule base. New rules regarding the PASRR program are proposed elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §19.2500 removes the existing PASRR program rules in 40 TAC Chapter 19.

FISCAL NOTE

David Cook, DADS Interim Chief Financial Officer, has determined that, for the first five years after the repeal, there are no foreseeable implications relating to costs or revenues of state or local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses.

PUBLIC BENEFIT AND COSTS

Carol Sloan, Interim DADS Assistant Commissioner for Access and Intake, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the section is the revision and reorganization of PASRR program rules, resulting in up-to-date rules that meet federal requirements.

Ms. Sloan anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Jamie White at (512) 438-4481 in DADS Access and Intake Division. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R002, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030 or street address 701 West 51st St., Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 9R002" in the subject line.

The repeal is proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Health and Safety Code, §§242.001 - 242.906, which authorizes DADS to license and regulate nursing facilities; and Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS.

The repeal affects Texas Government Code, §531.0055 and §531.021; Texas Health and Safety Code, §§242.001 - 242.906; and Texas Human Resources Code, §161.021.

§19.2500.Preadmission Screening and Resident Review (PASARR).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 7, 2013.

TRD-201300498

Kenneth L. Owens

General Counsel

Department of Aging and Disability Services

Earliest possible date of adoption: March 24, 2013

For further information, please call: (512) 438-4162