(a) HHSC notifies a LIDDA, in writing, when the opportunity for enrollment in the HCS Program becomes available in the LIDDA's local service area and directs the LIDDA to offer enrollment to an applicant:
  (1) whose interest list date, assigned in accordance with §263.103 of this subchapter (relating to HCS Interest List), is earliest on the statewide interest list for the HCS Program maintained by HHSC; or
  (2) who is a member of a target group identified in the HCS Program waiver application approved by CMS.
(b) Except as provided in subsection (c) of this section, a LIDDA must offer enrollment in the HCS Program in writing and deliver it to the applicant or LAR by United States mail or by hand delivery.
(c) A LIDDA must offer enrollment in the HCS Program to an applicant described in subsection (a)(2) of this section in accordance with HHSC's procedures.
(d) A LIDDA must include in a written offer that is made in accordance with subsection (a)(1) of this section:
  (1) a statement that:
    (A) if the applicant or LAR does not respond to the offer of enrollment in the HCS Program within 30 calendar days after the LIDDA's written offer, the LIDDA withdraws the offer; and
    (B) if the applicant is currently receiving services from the LIDDA that are funded by general revenue and the applicant or LAR declines the offer of enrollment in the HCS Program, the LIDDA terminates those services funded by general revenue that are similar to services provided in the HCS Program; and
  (2) the HHSC Deadline Notification form, which is available on the HHSC website.
(e) If an applicant or LAR responds to an offer of enrollment in the HCS Program, a LIDDA must:
  (1) provide the applicant, LAR, and, if the LAR is not a family member, at least one family member if possible, both an oral and written explanation of the services and supports for which the applicant may be eligible, including the ICF/IID Program, both state supported living centers and community-based facilities, waiver programs authorized under §1915(c) of the Social Security Act, and other community-based services and supports, using the HHSC Explanation of Services and Supports document, which is available on the HHSC website;
  (2) provide the applicant and LAR both an oral and a written explanation of all HCS Program services and CFC services using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website; and
  (3) give the applicant or LAR the HHSC Waiver Program Verification of Freedom of Choice form, which is available on the HHSC website, to document the applicant's choice between the HCS Program or the ICF/IID Program.
(f) A LIDDA must withdraw an offer of enrollment in the HCS Program made to an applicant or LAR if:
  (1) within 30 calendar days after the LIDDA's offer made to the applicant or LAR in accordance with subsection (a)(1) of this section, the applicant or LAR does not respond to the offer of enrollment in the HCS Program;
  (2) within seven calendar days after the applicant or LAR receives the HHSC Waiver Program Verification of Freedom of Choice form from the LIDDA in accordance with subsection (e)(3) of this section, the applicant or LAR does not use the form to document the applicant's choice, the HCS Program or the ICF/IID Program;
  (3) within 30 calendar days after the applicant or LAR receives the contact information for all program providers in the LIDDA's local service area in accordance with subsection (j)(3) of this section, the applicant or LAR does not document the choice of a program provider using the HHSC Documentation of Provider Choice form, which is available on the HHSC website;
  (4) the applicant or LAR does not complete the necessary activities to finalize the enrollment process and HHSC has approved the withdrawal of the offer; or
  (5) the applicant has moved out of the State of Texas.
(g) If a LIDDA withdraws an offer of enrollment in the HCS Program made to an applicant, the LIDDA must notify the applicant or LAR of such action, in writing, by certified United States mail.
(h) If an applicant is currently receiving services from a LIDDA that are funded by general revenue and the applicant or LAR declines the offer of enrollment in the HCS Program, the LIDDA must terminate those services funded by general revenue that are similar to services provided in the HCS Program.
(i) If a LIDDA terminates an applicant's services in accordance with subsection (h) of this section, the LIDDA must notify the applicant or LAR of the termination, in writing, by certified United States mail and provide an opportunity for a review in accordance with 40 TAC §2.46 (relating to Notification and Appeals Process).
(j) If an applicant or LAR accepts the offer of enrollment in the HCS Program, the LIDDA must compile and maintain information necessary to process the applicant's request for enrollment.
  (1) If the applicant's financial eligibility for the HCS Program must be established, the LIDDA must initiate, monitor, and support the processes necessary to obtain a financial eligibility determination.
  (2) The LIDDA must complete an ID/RC Assessment in accordance with §263.105 of this subchapter (relating to LOC Determination) and §263.106 of this subchapter (relating to LON Assignment).
    (A) The LIDDA must:
      (i) do one of the following:
        (I) conduct a DID in accordance with §304.401 of this title (relating to Conducting a Determination of Intellectual Disability) except that the following activities must be conducted in person:
          (-a-) a standardized measure of the individual's intellectual functioning using an appropriate test based on the characteristics of the individual; and
          (-b-) a standardized measure of the individual's adaptive abilities and deficits reported as the individual's adaptive behavior level; or
        (II) review and endorse a DID report in accordance with §304.403 of this title (relating to Review and Endorsement of a Determination of Intellectual Disability Report); and
      (ii) determine whether the applicant has been diagnosed by a licensed physician as having a related condition.
    (B) The LIDDA must:
      (i) conduct an ICAP assessment in person; and
      (ii) recommend an LON assignment to HHSC in accordance with §263.106 of this subchapter.
    (C) The LIDDA must enter the information from the completed ID/RC Assessment and electronically submit the information to HHSC for approval in accordance with §263.105(a) of this subchapter and §263.106(a) of this subchapter and, if applicable, submit supporting documentation as required by §263.107(c) of this subchapter (relating to HHSC Review of LON).
  (3) The LIDDA must provide names and contact information to the applicant or LAR for all program providers in the LIDDA's local service area.
  (4) The LIDDA must assign a service coordinator who, together with other members of the applicant's service planning team, must:
    (A) develop a PDP;
    (B) if CFC PAS/HAB is included on the PDP, complete the HHSC HCS/TxHmL CFC PAS/HAB Assessment form, which is available on the HHSC website, to determine the number of CFC PAS/HAB hours the applicant needs; and
    (C) develop an initial IPC in accordance with §263.301(c) of this chapter (relating to IPC Requirements).
  (5) The CFC PAS/HAB Assessment form required by paragraph (4)(B) of this subsection must be completed in person with the individual unless the following conditions are met in which case the form may be completed by videoconferencing or telephone:
    (A) the service coordinator gives the individual the opportunity to complete the form in person in lieu of completing it by videoconferencing or telephone and the individual agrees to the form being completed by videoconferencing or telephone; and
    (B) the individual receives appropriate in-person support during the completion of the form by videoconferencing or telephone.
  (6) A service coordinator must discuss the CDS option with the applicant or LAR in accordance with §263.401(a) and (b) of this chapter (relating to CDS Option).
(k) A service coordinator must:
  (1) arrange for meetings and visits with potential program providers as requested by an applicant or LAR;
  (2) review the initial IPC with potential program providers as requested by the applicant or LAR;
  (3) ensure that the applicant's or LAR's choice of a program provider is documented on the HHSC Documentation of Provider Choice form and that the form is signed by the applicant or LAR;
Cont'd...
(4) negotiate and finalize the initial IPC and the date services will begin with the selected program provider, consulting with HHSC if necessary to reach agreement with the selected program provider on the content of the initial IPC and the date services will begin;
  (5) determine whether the applicant meets the following criteria:
    (A) is being discharged from a nursing facility, an ICF/IID, or a GRO; and
    (B) anticipates needing TAS;
  (6) if the service coordinator determines that the applicant meets the criteria described in paragraph (5) of this subsection:
    (A) complete, with the applicant or LAR and the selected program provider, the HHSC Transition Assistance Services (TAS) Assessment and Authorization form, which is available on the HHSC website, in accordance with the form's instructions, which includes:
      (i) identifying the TAS the applicant needs; and
      (ii) estimating the monetary amount for each transition assistance service identified, which must be within the service limit described in §263.304(a)(6) of this chapter (relating to Service Limits);
    (B) submit the completed form to HHSC to determine if TAS is authorized;
    (C) send the form authorized by HHSC to the selected program provider; and
    (D) include the TAS and the monetary amount authorized by HHSC on the applicant's initial IPC;
  (7) determine whether an applicant meets the following criteria:
    (A) is being discharged from a nursing facility, an ICF/IID, or a GRO;
    (B) has not met the maximum service limit for minor home modifications as described in §263.304(a)(3)(A) of this chapter; and
    (C) anticipates needing pre-enrollment minor home modifications and a pre-enrollment minor home modifications assessment;
  (8) if the service coordinator determines that an applicant meets the criteria described in paragraph (7) of this subsection:
    (A) complete, with the applicant or LAR and selected program provider, the HHSC Home and Community-based Services (HCS) Program Pre-enrollment MHM Authorization Request form, which is available on the HHSC website, in accordance with the form's instructions, which includes:
      (i) identifying the pre-enrollment minor home modifications the applicant needs;
      (ii) identifying the pre-enrollment minor home modifications assessments conducted by the program provider; and
      (iii) based on documentation provided by the program provider as required by the HCS Program Billing Requirements, stating the cost of:
        (I) the pre-enrollment minor home modifications identified on the form, which must be within the service limit described in §263.304(a)(3)(A) of this chapter; and
        (II) the pre-enrollment minor home modifications assessments conducted;
    (B) submit the completed form to HHSC to determine if pre-enrollment minor home modification and pre-enrollment minor home modifications assessments are authorized;
    (C) send the form authorized by HHSC to the selected program provider; and
    (D) include the pre-enrollment minor home modifications, pre-enrollment minor home modifications assessments, and the monetary amount for these services authorized by HHSC on the applicant's initial IPC;
  (9) if an applicant or LAR chooses a program provider to deliver supported home living, nursing, host home/companion care, residential support, supervised living, respite, employment assistance, supported employment, in-home day habilitation, day habilitation, or CFC PAS/HAB, ensure that the initial IPC includes a sufficient number of RN nursing units for the program provider's RN to perform a comprehensive nursing assessment unless:
    (A) nursing services are not on the IPC and the applicant or LAR and selected program provider have determined that no nursing tasks will be performed by an unlicensed service provider as documented on the HHSC Nursing Task Screening Tool form; or
    (B) an unlicensed service provider will perform a nursing task and a physician has delegated the task as a medical act under Texas Occupations Code Chapter 157, as documented by the physician;
  (10) if an applicant or LAR refuses to include on the initial IPC a sufficient number of RN nursing units for the program provider's RN to perform a comprehensive nursing assessment as required by paragraph (9) of this subsection:
    (A) inform the applicant or LAR that the refusal:
      (i) will result in the applicant not receiving nursing services from the program provider; and
      (ii) if the applicant needs host home/companion care, residential support, supervised living, supported home living, respite, employment assistance, supported employment, in-home day habilitation, day habilitation, or CFC PAS/HAB from the program provider, will result in the individual not receiving that service unless:
        (I) the program provider's unlicensed service provider does not perform nursing tasks in the provision of the service; and
        (II) the program provider determines that it can ensure the applicant's health, safety, and welfare in the provision of the service; and
    (B) document the refusal of the RN nursing units on the initial IPC for a comprehensive nursing assessment by the program provider's RN in the applicant's record;
  (11) ensure that the applicant or LAR signs and dates the initial IPC and provides the signed and dated IPC to the service coordinator in person, electronically, by fax, or by United States mail;
  (12) ensure that the selected program provider signs and dates the initial IPC, demonstrating agreement that the services will be provided to the applicant;
  (13) sign and date the initial IPC, which indicates that the service coordinator agrees that the requirements described in §263.301(c) of this chapter have been met;
  (14) using the HHSC Understanding Program Eligibility and Services form, which is available on the HHSC website, provide an oral and written explanation to the applicant or LAR:
    (A) of the eligibility requirements for HCS Program services as described in §263.101(a) of this subchapter (relating to Eligibility Criteria for HCS Program Services and CFC Services);
    (B) if the applicant's PDP includes CFC services:
      (i) of the eligibility requirements for CFC services as described in §263.101(c) of this subchapter to applicants who do not receive MAO Medicaid; and
      (ii) of the eligibility requirements for CFC services as described in §263.101(d) of this subchapter to applicants who receive MAO Medicaid;
    (C) that HCS Program services may be terminated if:
      (i) the individual no longer meets the eligibility criteria described in §263.101(a) of this subchapter; or
      (ii) the individual or LAR requests termination of HCS Program services; and
    (D) if the applicant's PDP includes CFC services, that CFC services may be terminated if:
      (i) the individual no longer meets the eligibility criteria described in §263.101(c) or (d) of this subchapter; or
      (ii) the individual or LAR requests termination of CFC services.
(l) A LIDDA must conduct permanency planning in accordance with §263.902(a) - (f) of this chapter (relating to Permanency Planning).
(m) After an initial IPC is finalized and signed in accordance with subsection (k) of this section, the LIDDA must:
  (1) enter the information from the initial IPC in the HHSC data system and electronically submit it to HHSC;
  (2) keep the original initial IPC in the individual's record;
  (3) ensure the information from the initial IPC entered in the HHSC data system and electronically submitted to HHSC contains information identical to the information on the initial IPC; and
  (4) submit other required enrollment information to HHSC.
(n) HHSC notifies the applicant or LAR, the selected program provider, the FMSA, if applicable, and the LIDDA of its approval or denial of the applicant's enrollment. When the enrollment is approved, HHSC authorizes the applicant's enrollment in the HCS Program through the HHSC data system and issues an enrollment letter to the applicant that includes the effective date of the applicant's enrollment in the HCS Program.
(o) Before the applicant's service begin date, the LIDDA must provide to the selected program provider and FMSA, if applicable:
  (1) copies of all enrollment documentation and associated supporting documentation, including relevant assessment results and recommendations;
  (2) the completed ID/RC Assessment;
Cont'd...
(3) the initial IPC;
  (4) the applicant's PDP; and
  (5) if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form.
(p) Except for the provision of TAS, pre-enrollment minor home modifications, and a pre-enrollment minor home modifications assessment, the selected program provider must not initiate services until notified of HHSC's approval of the applicant's enrollment.
(q) The selected program provider and the individual or LAR must develop:
  (1) an implementation plan for:
    (A) HCS Program services, except for supported home living, that is based on the individual's PDP and IPC; and
    (B) CFC services, except for CFC support management, that is based on the individual's PDP, IPC, and if CFC PAS/HAB is included on the PDP, the completed HHSC HCS/TxHmL CFC PAS/HAB Assessment form; and
  (2) a transportation plan, if supported home living is included on the PDP.
(r) A LIDDA must retain in an applicant's record:
  (1) the HHSC Waiver Program Verification of Freedom of Choice form;
  (2) the HHSC Documentation of Provider Choice form, if applicable;
  (3) the HHSC Deadline Notification form; and
  (4) any other correspondence related to the offer of enrollment in the HCS Program.

Source Note: The provisions of this §263.104 adopted to be effective March 1, 2023, 48 TexReg 1080