(a) Introduction And Legal Authority. The Texas Department of Mental Health and Mental Retardation (TDMHMR) and Texas Department of Human Services (TDHS) enter into a memorandum of understanding (MOU) in accordance with Texas Health and Safety Code (THSC), §533.044. The statute requires the use of a uniform assessment tool to assess whether an elderly person, a person with mental retardation, a person with a developmental disability, or a person who is suspected of being a person with mental retardation or a developmental disability and who is receiving services in a facility regulated or operated by TDMHMR or TDHS needs a guardian of the person or estate or both. TDMHMR and TDHS agree to require the following entities, as indicated, to comply with the provisions of this MOU:
  (1) TDMHMR: state facilities; local mental retardation authorities and their contractors; and providers in the ICF/MR/RC or Medicaid waiver programs; and
  (2) TDHS: nursing facilities.
(b) Definitions: The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
  (1) Capacity Assessment for Self Care and Financial Management -- The uniform capacity assessment instrument developed by TDMHMR and TDHS in compliance with THSC, §533.044, for use by providers described in subsection (a)(1) and (2) of this section to assess an individual's:
    (A) ability to make a decision and communicate that decision to others; and
    (B) capacity to:
      (i) substantially provide the individual's food, clothing, or shelter;
      (ii) care for the individual's physical health; or
      (iii) manage the individual's financial affairs.
  (2) Developmental disability (related condition) -- In accordance with the Code of Federal Regulations, Title 42, §435.1009, a severe and chronic disability that:
    (A) is attributable to:
      (i) cerebral palsy or epilepsy; or
      (ii) any other condition, other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation, and requires treatment or services similar to those required for individuals with mental retardation;
    (B) is manifested before the individual reaches age 22; and
    (C) is likely to continue indefinitely; and
    (D) results in substantial functional limitation in three or more of the following areas of major life activity:
      (i) self-care;
      (ii) understanding and use of language;
      (iii) learning;
      (iv) mobility;
      (v) self-direction; and
      (vi) capacity for independent living.
  (3) Elderly -- In accordance with Texas Human Resources Code, §102.001, sixty years of age or older.
  (4) ICF/MR/RC -- The Intermediate Care Facilities for Persons with Mental Retardation or a Related Condition program which provides Medicaid-funded residential services to individuals with mental retardation or a related condition.
  (5) Individual -- A person who is receiving services from a provider and who:
    (A) is elderly; or
    (B) has mental retardation or is suspected of having mental retardation, including a person who is dually diagnosed with mental retardation and mental illness; or
    (C) has a developmental disability or is suspected of having a developmental disability.
  (6) Local mental retardation authority -- As defined in the Texas Health and Safety Code, §531.002, an entity to which the Texas Mental Health and Mental Retardation Board delegates its authority and responsibility within a specified region for planning, policy development, coordination, and resource development and allocation and for supervising and ensuring the provision of mental retardation services to consumers in one or more local service areas.
  (7) Medicaid waiver program - A home and community-based program serving people with mental retardation and/or related conditions which is operated by TDMHMR as authorized by the Health Care Financing Administration (HCFA) in accordance with §1915(c) of the Social Security Act, including the Home and Community-based Services (HCS), Home and Community-based Waiver Services -- OBRA (HCS-O), and Mental Retardation Local Authority (MRLA) programs.
  (8) Mental retardation -- Significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period (birth to 18 years of age.)
  (9) Nursing facility -- An organization that provides organized and structured nursing care and service and is licensed under THSC, Chapter 242.
  (10) Planning team -- For providers other than nursing facilities, a group composed of the individual receiving services, the individual's legally authorized representative (LAR), actively-involved family members and friends who are invited by the individual or LAR, and professional and other support staff, that meets to assess the individual's habilitation, treatment, and service/support needs and develop strategies for enabling the individual to achieve desired outcomes.
  (11) Provider -- Those entities described in subsection (a)(1) and (2) of this section.
  (12) Professional -- A person licensed or certified by the State of Texas in a health or human services occupation or who meets TDMHMR criteria to be a case manager, service coordinator, qualified mental retardation professional, or associate psychologist.
  (13) State facilities -- State hospitals, state schools, and state centers that are operated by TDMHMR.
(c) Capacity Assessment.
  (1) A provider will perform a capacity assessment for an individual receiving services from that provider when:
    (A) the provider believes a guardian of the person or the estate for that individual may be appropriate and a referral to the appropriate court for guardianship is anticipated; or
    (B) requested to do so by a court .
  (2) In conducting the capacity assessment, the provider will use the Capacity Assessment for Self Care and Financial Management. Copies of the Capacity Assessment for Self Care and Financial Management may be obtained by contacting the Office of Policy Development, TDMHMR, 909 West 45th Street, Austin, Texas 78756, 512/206-4516, or from the TDHS Long Term Care Policy web site.
(d) Performance Of Capacity Assessment. The capacity assessment will be performed:
  (1) for providers other than nursing facilities, by the professional designated by the planning team with assistance from other staff or consultants as requested by the professional or directed by the planning team; and
  (2) at nursing facilities, by the social worker with assistance from member(s) of the interdisciplinary care plan team as requested by the social worker.
(e) Annual Review. No later than the last month of each state fiscal year, TDMHMR and TDHS shall review and modify the MOU as necessary.

Source Note: The provisions of this §72.5001 adopted to be effective November 15, 1999, 24 TexReg 10091; transferred effective September 1, 2004, as published in the Texas Register September 10, 2004, 29 TexReg 8841