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

(1) Waiver program--A program administered by the Department of Aging and Disability Services (DADS), other than the Texas Home Living Program, that provides services under a waiver granted by the Centers for Medicare and Medicaid Services in accordance with §1915(c) of the Social Security Act.

(2) General revenue--State funds appropriated by the Texas Legislature for use by DADS.

(3) Individual--A person applying for or enrolled in a waiver program.

(b) DADS may use general revenue to pay for services above the individual cost limit of a waiver program for an individual if DADS determines:

(1) the individual needs services that exceed the individual cost limit because the individual's health and safety cannot be protected by the services provided within the individual cost limit;

(2) the individual receives waiver services at the individual cost limit;

(3) federal financial participation is not available to pay for services above the individual cost limit; and

(4) there is no other available living arrangement in which the individual's health and safety can be protected, as evidenced by: (A) an assessment conducted by DADS clinical staff; and (B) supporting documentation, including the individual's medical and service records.

(c) Services funded by general revenue must be:

(1) the same service array offered by the waiver program in which the individual is enrolled;

(2) necessary to protect the individual's health and safety;

(3) authorized using the waiver program's criteria; and

(4) unavailable through other funding sources.

(d) For an individual who has been receiving waiver program services since September 1, 2005, at a cost that exceeded the individual cost limit of the waiver program, DADS uses general revenue to pay for services above the individual cost limit if:

(1) the services above the individual cost limit are necessary for the individual to live in the most integrated setting appropriate to the individual's needs; and

(2) federal financial participation is not available to pay for the services above the individual cost limit.

Source Note: The provisions of this §40.1 adopted to be effective September 1, 2008, 33 TexReg 7283