February 14th, 2023


Repeal of HCS Rules under Title 40, Chapter 9 / Movement to Title 26, Chapter 565

Attached please find the proposed changes to the HCS certification principles. The proposed changes repeal rules under Chapter 9, Subchapter D and move to Chapter 565.  Remember that in addition to moving the rules to Chapter 565, several new rules are mentioned to be put in place as well as changes to existing rules for purposes of either updating, streamlining or providing clarity in intent are proposed.
One new proposed rule would require conducting quarterly visits in HH settings.
Also discussed are new requirements for emergency preparedness, fire drills and evacuation drills are also proposed.
The attached proposed rules will be presented to the HHSC Executive Council on February 16, 2023 beginning at 10:00 a.m.  According to the agenda, no public comment will be taken on these rules, which have already been submitted to the Texas Register for publication as proposed.  To listen to the meeting and to see the complete agenda, go to:  https://www.hhs.texas.gov/about/communications-events/meetings-events/2023/02/16/health-human-services-commission-executive-council-agenda
Here are some highlights of the agenda for February 16th, 2023
“Quoted from HHSC Agenda for February 16th”
“The purpose of the proposal is to draft new rules that describe the regulatory certification standards for Home and Community-based Services (HCS) Medicaid waiver program providers and repeal duplicative sections of the Texas Administrative Code (TAC) Title 40, Part 1, Chapter 9, Subchapter D, relating to the Home and Community-based Services (HCS) Program and Community First Choice (CFC).
The proposed rules describe certification standards regarding service delivery, rights of individuals, requirements related to abuse, neglect, and exploitation, staff members and service providers’ requirements, and quality assurance. The proposed rules also include new requirements for emergency preparedness, fire drills, and evacuation drills in all residential types in the HCS program.
Current requirements listed on the waiver survey and certification checklist that are not currently in ruleare included in the proposed rules. The proposed rules set forth recommendations for increased oversight of HCS host home/companion care homes, clarify restraint and seclusion requirements and add language for obtaining and using enclosed beds.The proposed rules also modify HHSC surveyor requirements to allow for survey flexibility as the HCS waiver program evolves.
Stakeholders expressed concern with retaining certification principle §565.11(a)(1), which requires HCS program providers to serve any individual who chooses them regardless of whether providers have a residence in the individual’s preferred area or can accommodate their specific needs. However, advocates are strongly in favor of this regulation because it prevents program providers from potentially picking and choosing the individuals they want to serve and possibly leaving some individuals without services.
An additional concern from HCS program providers involves their ability to comply with the regulations without financial support from HHSC. Program providers expressed that both existing requirements that will transfer to new Title 26 and new requirements added to improve health and safety create an undue financial burden given the current reimbursement rate structure within the Medicaid HCS waiver program. Program providers and advocates also expressed a desire for interpretive guidance to ensure accurate implementation from both a provider and surveyor perspective.
HHSC worked closely with HCS program providers and advocacy groups while creating these rules to attempt to mitigate their concerns regarding cost of implementation and clarity of rules language. HHSC also agreed to develop interpretive guidance once rules are adopted to ensure consistent application from providers and surveyors. During the year-long workgroup process, HCS program providers, advocacy groups, and HHSC staff crafted health and safety language that all parties agreed would meet the needs of the individuals who receive HCS waiver program services.
In March 2021 through February 2022, HHSC met with HCS providers associations, including PPAT, PACTX, and Texas Council for Community Centers; advocacy groups, including Disability Rights Texas and Every Child; and HHSC program staff. This workgroup focused on creating clear and concise rule language dedicated to the health and safety of the individuals who receive HCS waiver program services. HHSC held monthly workgroup meetings to review existing HCS regulations and create revised HCS regulations, with the focus on health and safety. Workgroup participants provided feedback both during and between meetings by providing feedback on proposed language. The workgroup received the complete draft regulatory language in February 2022 and provided input prior to beginning the formal rulemaking process.”
“The main objective of this rule project is to ensure the health and safety of the individuals who receive HCS waiver program services. HHSC accomplished this by creating a residential requirements section in the proposed rule. This ensures the HCS program providers have policies and procedures in place to determine whether the environment an individual resides in is safe. HHSC crafted a protective devices and enclosed bed section in the new rule language which provides explicit guidance about the use of enclosed beds. This project also adds requirements for infection control, medication administration, fire drills, and emergency plans to ensure the continued health and safety of those individuals who live in HCS residences.”
Please note the following while reading the proposed new rules in the agenda:
  • Target date for publication in the Texas Register:  February, 2023.
  • Target date for adoption:  May 2023.
  • See pages 1-3 for Background Information.
  • See pages 4 – 8 for Preamble to repeal of rules under Chapter 9.
  • See page 9 for Preamble to the proposed new rules which provides a high-level summary of changes.
  • See pages 16 – 106 for proposed new rules.
  • See pages 73 – 74 for Residential Requirements, including provisions related to locks on bedroom doors. These proposed rules contradict the proposed HCBS settings rules under Chapter 263 regarding locks.  [Though confirmation is being sought, it was reported that at the ISS and HCBS training HHSC conducted in Austin last Friday, HHSC stated the rules under Chapter 263 (which are still not adopted) will take precedence.
  • See page 78 for provisions related to the new requirement for conducting quarterly on-site visits in HHs.
  • See bottom of page 81 for requirements related to Finances and Rent.