(a) Individualized skills and socialization is a TxHmL Program service described in this section.
(b) On-site and off-site individualized skills and socialization:
  (1) provide person-centered activities related to:
    (A) acquiring, retaining, or improving self-help skills and adaptive skills necessary to live successfully in the community and participate in home and community life; and
    (B) gaining or maintaining independence, socialization, community participation, current or future volunteer goals, or employment goals consistent with achieving the outcomes identified in an individual's PDP;
  (2) support the individual's pursuit and achievement of employment through school, vocational rehabilitation, the TxHmL Program service of employment assistance, or the TxHmL Program service of supported employment;
  (3) provide personal assistance for an individual who cannot manage personal care needs during an individualized skills and socialization activity;
  (4) as determined by an assessment conducted by a registered nurse, provide assistance with medications and the performance of tasks delegated by a registered nurse in accordance with state law and rules, unless a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician; and
  (5) do not include activities in which an individual:
    (A) produces marketable goods; and
    (B) is paid below minimum wage for producing the goods in accordance with Section 14(c) of the Fair Labor Standards Act.
(c) On-site individualized skills and socialization:
  (1) is provided in a building or a portion of a building that is owned or leased by an individualized skills and socialization provider;
  (2) includes transportation of an individual from one on-site individualized skills and socialization location to another on-site individualized skills and socialization location;
  (3) promotes an individual's development of skills and behavior that support independence and personal choice; and
  (4) is not provided in:
    (A) a setting in which an individual must not reside, as set forth in the rules governing the TxHmL Program; or
    (B) the residence of an individual or another person.
(d) An individualized skills and socialization provider must ensure that individualized skills and socialization is not provided in a setting that is presumed to have the qualities of an institution. A setting is presumed to have the qualities of an institution if the setting:
  (1) is located in a building in which a state supported living center or a certified intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID) operated by a local intellectual and developmental disability authority (LIDDA) is located but is distinct from the state supported living center or the certified ICF/IID operated by a LIDDA;
  (2) is located in a building that is on the grounds of or immediately adjacent to a state supported living center or a certified ICF/IID operated by a LIDDA;
  (3) is located in a building in which a licensed private ICF/IID, a hospital, a nursing facility, or other institution is located but is distinct from the ICF/IID, hospital, nursing facility, or other institution;
  (4) is located in a building that is on the grounds of or immediately adjacent to a hospital, a nursing facility, or other institution except for a licensed private ICF/IID; or
  (5) has the effect of isolating individuals from the broader community of persons not receiving Medicaid HCBS.
(e) An individualized skills and socialization provider may provide individualized skills and socialization to an individual in a setting that is presumed to have the qualities of an institution as described in subsection (d) of this section, if CMS determines through a heightened scrutiny review that the setting:
  (1) does not have the qualities of an institution; and
  (2) does have the qualities of home and community-based settings.
(f) The setting in which on-site individualized skills and socialization is provided must:
  (1) allow an individual to:
    (A) control the individual's schedule and activities related to on-site individualized skills and socialization;
    (B) have access to the individual's food at any time; and
    (C) have visitors of the individual's choosing at any time; and
  (2) be physically accessible and free of hazards to an individual.
(g) If an individualized skills and socialization provider becomes aware that a modification to a requirement described in subsection (f)(1) of this section is needed based on a specific assessed need of an individual, the individualized skills and socialization provider must inform the individual's program provider of the needed modification.
  (1) The program provider must:
    (A) notify the service coordinator of the needed modification; and
    (B) provide the service coordinator the information described in paragraph (2)(A) of this subsection as requested by the service coordinator.
  (2) A service coordinator must, if notified by the program provider of a needed modification, convene a service planning team meeting to update the individual's PDP to include the following:
    (A) a description of the specific and individualized assessed need that justifies the modification;
    (B) a description of the positive interventions and supports that were tried but did not work;
    (C) a description of the less intrusive methods of meeting the need that were tried but did not work;
    (D) a description of the condition that is directly proportionate to the specific assessed need;
    (E) a description of how data will be routinely collected and reviewed to measure the ongoing effectiveness of the modification;
    (F) the established time limits for periodic reviews to determine if the modification is still necessary or can be terminated;
    (G) the individual's or LAR's signature evidencing informed consent to the modification; and
    (H) the program provider's assurance that the modification will cause no harm to the individual.
  (3) After the service planning team updates the PDP as required by paragraph (2) of this subsection, the individualized skills and socialization provider may implement the modifications.
(h) Off-site individualized skills and socialization:
  (1) provides activities that:
    (A) integrate an individual into the community; and
    (B) promote the individual's development of skills and behavior that support independence and personal choice;
  (2) is provided in a community setting chosen by the individual from among available community setting options;
  (3) includes transportation of an individual from an on-site individualized skills and socialization location to an off-site individualized skills and socialization location and between off-site individualized skills and socialization locations; and
  (4) is not provided in:
    (A) a building in which on-site individualized skills and socialization is provided;
    (B) a setting in which an individual must not reside, as set forth in the rules governing the TxHmL Program, unless:
      (i) the off-site individualized skills and socialization activity is a volunteer activity performed by an individual in such a setting; or
      (ii) off-site individualized skills and socialization is provided in an event open to the public; or
    (C) the residence of an individual or another person, unless the off-site individualized skills and socialization activity is a volunteer activity performed by an individual in the residence.
(i) An individualized skills and socialization provider or the program provider is not responsible for the cost, if any, of an individual to participate in an off-site activity.

Source Note: The provisions of this §262.905 adopted to be effective January 1, 2023, 47 TexReg 8688