PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 284. COMPETITIVE AND INTEGRATED EMPLOYMENT INITIATIVE FOR CERTAIN MEDICAID RECIPIENTS

26 TAC §§284.101, 284.103, 284.105, 284.107, 284.109, 284.111

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts new §284.101, concerning Purpose; §284.103, concerning Applicability; §284.105, concerning Uniform Process; §284.107, concerning Strategies to Increase Number of Individuals Receiving Employment Services; §284.109, concerning Referrals to the Texas Workforce Commission; and §284.111, concerning Increasing the Number of Individuals Receiving Employment Services.

Sections 284.105, 284.107, 284.109, and 284.111 are adopted with changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2659). These rules will be republished. Sections 284.101 and 284.103 are adopted without changes to the proposed text as published in the May 26, 2023, issue of the Texas Register (48 TexReg 2659). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

The new sections are necessary to comply with Texas Government Code §531.02448, regarding Competitive and Integrated Employment Initiative for Certain Medicaid Recipients, added by Senate Bill (S.B.) 50, 87th Legislature, Regular Session, 2021.

The Community Living Assistance and Support Services (CLASS), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS), Texas Home Living (TxHmL), and STAR+PLUS Home and Community-based Services (STAR+PLUS HCBS) programs each provide employment services. Employment assistance services assist an individual in locating competitive employment in the community. Supported employment assists an individual in sustaining competitive employment.

To implement S.B. 50, HHSC developed a form to use in the CLASS, DBMD, HCS, TxHmL, and STAR+PLUS HCBS programs to determine an individual's employment goals and the employment opportunities and employment services available to the individual in the individual's program. The adopted rules require the entity responsible for developing an individual's person-centered service plan to determine an individual's desire to work. The adopted rules require an individual's response to be documented in the individual's person-centered service plan. When the individual indicates a desire to work, the responsible entity is required to complete the HHSC Employment First Discovery Tool at the time the plan is developed during initial enrollment, and annual renewals, and revisions if the individual's person-centered service plan does not include an employment service.

After completing the HHSC Employment First Discovery Tool, if an individual's person-centered service plan does not include employment services through the waiver program in which the individual is enrolled, the adopted rules require an individual's case manager or service coordinator to refer the individual for employment services available through the Texas Workforce Commission (TWC). The adopted rules specify HHSC's determination that the number of individuals receiving employment services on December 31, 2023, from the TWC or through the waiver programs in which the individuals are enrolled, will be at least five percent greater than the number of individuals receiving employment services on December 31, 2022.

COMMENTS

The 31-day comment period ended June 26, 2023.

During this period, HHSC received comments regarding the proposed rules from five commenters, including the TWC, the Texas Council of Community Centers, the Providers Alliance for Community Services of Texas, and two individuals.

A summary of comments relating to the rules and HHSC's responses follows.

Comment: A commenter questioned whether asking a person if they would like to work will ultimately result in the goal of increasing competitive employment. The commenter further questioned whether this expectation could be framed differently in order to increase employment within the waivers.

Response: HHSC declines to make changes in response to this comment. HHSC thinks the comment is about proposed §284.105(a), which requires an individual's service planning team to determine during the person-centered planning process whether an individual desires to work. HHSC disagrees that this requirement is the same as asking a person if they would like to work. Texas Government Code Section §531.02448(b) directs HHSC to develop a uniform process to assess an individual's employment goals. This requires that each individual who indicates a desire to work is referred to receive employment services from the TWC or through the waiver program in which the individual is enrolled. HHSC may consider including this topic in future training materials.

Comment: A commenter noted that S.B. 50 requires HHSC to develop a uniform process but does not require a uniform assessment tool, and that a uniform process does not require a single, uniform tool. This commenter recommended that HHSC ensure assessors across Medicaid programs ask individuals the same, or substantially similar, required questions related to employment during their respective service planning processes. Additionally, the commenter suggested re-naming the form from "Employment First Uniform Assessment Form" to "Employment First Discovery Tool."

Response: HHSC agrees it is imperative the same questions are asked across programs and designed the "Employment First Uniform Assessment Form" to accomplish this task. HHSC does not agree that developing a uniform process does not require using a uniform assessment tool, but agrees to renaming the assessment form to the "HHSC Employment First Discovery Tool" and revised §§284.105(a)(2), 284.107(1), and 284.109 accordingly. The form will now be referred to as the "Employment First Discovery Tool."

Comment: A commenter asked if the Employment First Discovery Tool assesses the individual's ability to work.

Response: The renamed "Employment First Discovery Tool" is not meant to be a functional assessment. Rather, it is an inquiry of the individual's employment interests and goals. This tool is part of the overall discussion within the person-centered planning process. HHSC did not make changes in response to this comment.

Comment: One commenter requested that HHSC add to handbooks, or other policy material, proven techniques for determining whether someone wants to work.

Response: HHSC did not makes changes in response to this comment because amending non-rule policy is outside the scope of this rule project. However, HHSC may consider adding a "discovery process" as part of the provider education process to train case managers and service coordinators on how to lead the person-centered planning process to determine whether an individual wants to work.

Comment: One commenter requested that HHSC add language related to referrals to the TWC in §284.105.

Response: HHSC disagrees and declines to revise §284.105 in response to this comment because this rule describes the uniform process for providing employment services in the waiver program in which the individual is enrolled if the individual expresses the desire to work. Section 284.109 addresses referrals to TWC and requires a case manager or service coordinator to refer an individual to TWC for employment services if the individual's person-centered service plan does not include employment services through the waiver program in which the individual is enrolled.

Comment: One commenter requested that HHSC include in §284.105(c)(2) an individual expressing a desire to advance in their employment as a trigger for a service plan revision.

Response: HHSC disagrees and declines to revise §284.105(c)(2) as suggested. Texas Government Code §531.02448(d)(3) directs HHSC to ensure each individual who indicates a desire to work is referred to receive employment services from the TWC or through the waiver program in which the individual is enrolled. It is outside the scope of the rule project to include requirements for revising an individual's person-centered service plan when an individual is already receiving employment services through the individual's waiver program and the plan needs to be revised.

Comment: A commenter recommended that HHSC revise the rule to allow use of the form during a service plan revision even if a meeting of the entire service planning team does not convene. The commenter also suggested to revise §284.105(c)(2) to include the phrase "the purpose of the revision is because."

Response: HHSC disagrees with the first recommendation and declines to make changes in response because §284.105(a) requires an individual's service planning team to determine during the person-centered planning process whether an individual desires to work. Section 284.105(c) requires an individual's case manager or service coordinator to ensure the requirements in subsection (a) of the rule are met when the individual's service planning team meets to revise the individual's person-centered service plan if the individual expresses a desire to work and the individual's person-centered service plan does not include an employment service. HHSC agrees with the suggestion to revise §284.105(c)(2) and made changes to add the phrase "the purpose of the revision is because."

Comment: One commenter requested that the Employment First Discovery Tool be completed or revised anytime a desire to work or a desire for advancement in employment is identified.

Response: HHSC did not make changes in response to this comment because §284.105(a)(2) and (c) already requires completion of the Employment First Discovery Tool any time an individual expresses a desire to work. Also, HHSC disagrees with the suggestion to amend the rules to require the tool to be completed when an individual expresses a desire for advancement in employment because it is outside the scope of the rule project to include requirements for revising an individual's person-centered service plan when an individual is already receiving employment services through the individual's waiver program and the plan needs to be revised.

Comment: One commenter requested that HHSC use Texas Workforce Solutions - Vocational Rehabilitation Services (TWS-VRS) when referencing TWC in the proposed rules.

Response: HHSC disagrees and declines to revise §§284.107, 284.109, and 284.111 as suggested. HHSC believes it is not necessary to specify the division/department of TWC responsible for receiving the referrals for employment services.

Comment: A commenter recommended that HHSC clarify in the rule when the HCS/TxHmL provider should take action versus the local intellectual and developmental disability authority (LIDDA) service coordinator.

Response: HHSC agrees that §284.105(a) and (c) and §284.109 need to clearly reflect the person who on behalf of a program provider, a LIDDA, or an MCO must take the action indicated in these rules. Section 284.101(b) requires that the rules in the chapter must be read in conjunction with the rules and policies related to the Medicaid programs listed in §284.103. In the CLASS, DBMD, and STAR+PLUS HCBS programs the person responsible for taking the actions in §284.105(a) and (c) and §284.109 is referred to as the case manager. In the HCS and TxHmL programs the person responsible for taking the actions in §284.105(a) and (c) and §284.109 is referred to as the service coordinator. Therefore, HHSC revised §284.105(a) and (c) and §284.109 by removing "program provider's," "local intellectual and developmental disability authority," and "or managed care organization or MCO" to clarify that the responsible person is the case manager or service coordinator, depending on the waiver program in which an individual is enrolled.

Comment: A commenter indicated that, based on personal experience, a referral by the service coordinator to TWC is rarely done, and instead the referral comes from the long-term care providers. The commenter further indicated that since the rule does not direct the provider to make the referral to TWC, an enhanced emphasis on the service coordinators following through with the referral rather than placing the responsibility on the provider is preferable.

Response: HHSC disagrees with the comment and declines to make changes because §284.109 explicitly requires the service coordinator or case manager to refer an individual to TWC, if the situation warrants a referral. Whether the requirement applies to a case manager or a service coordinator depends on the waiver program in which the individual is enrolled.

Comment: One commenter recommended HHSC specify that the programs referenced in §284.111 are "waiver" programs.

Response: HHSC agrees and revised §284.111 as suggested by adding "waiver" to this section.

Comment: One commenter recommended that HHSC obtain additional feedback from internal and external stakeholders specifically related to how the tool fits within the existing service planning process.

Response: HHSC met with internal and external stakeholder groups to solicit feedback and ideas. HHSC's intent is for the questions in the Employment First Discovery Tool to be a part of the service planning process. If the response to a question in the Employment First Discovery Tool has already been captured in another service plan form, the case manager or service coordinator may note this in the Employment First Discovery Tool with a clear reference to the corresponding section of the service plan form. HHSC will update the Employment First Discovery Tool instructions to note that questions previously captured in another service planning form may be noted in the Employment First Discovery Tool with a clear reference to the corresponding section of the service plan form. HHSC did not make changes in response to this comment.

Comment: A commenter recommended that HHSC review the Employment First Discovery Tool with stakeholders and revise the questions to assess readiness to work. The commenter also expressed concern that the Employment First Discovery Tool in its current form does not collect the information TWC needs for their assessments.

Response: HHSC disagrees that the questions in the Employment First Discovery Tool need to be revised to assess readiness to work. The Employment First Discovery Tool is not meant to assess an individual's readiness to work. It is meant to guide the conversation regarding the type of work that may suit the individual's interest. Also, the Employment First Discovery Tool is not intended to replace any part of TWC's assessment process. HHSC did not make changes in response to this comment.

Comment: A commenter remarked that the Employment First Discovery Tool instructions do not align with the rule language and recommended that HHSC incorporate implementation activities into current service planning processes.

Response: HHSC's intent is for the questions in the Employment First Discovery Tool to be a part of the service planning process. If a question on the tool has already been captured in another service plan form, the case manager or service coordinator may note this on the tool with a clear reference to the appropriate section of the service plan form. HHSC will update the Employment First Discovery Tool instructions to note that questions previously captured in another service planning form may be carried over to the Employment First Discovery Tool. HHSC did not make changes in response to this comment.

Comment: A commenter indicated support for the LIDDAs taking a more active role in the referral process to the TWC.

Response: HHSC appreciates the comment.

STATUTORY AUTHORITY

The new sections are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules as necessary to carry out the commission's duties; and Texas Human Resources Code §32.021(c) and Texas Government Code §531.021(a), which authorizes HHSC to administer the federal medical assistance (Medicaid) program.

§284.105.Uniform Process.

(a) An individual's service planning team must determine during the person-centered planning process whether an individual desires to work and if so, the individual's case manager or service coordinator must:

(1) document the individual's desire to work on the individual's person-centered service plan; and

(2) complete the HHSC Employment First Discovery Tool available on the HHSC website to determine:

(A) the individual's employment goals; and

(B) the employment opportunities and employment services available to the individual through the program in which the individual is enrolled.

(b) An individual's service planning team must use the individual's employment goals, employment opportunities, and the employment services chosen by the individual to develop the individual's person-centered service plan.

(c) An individual's case manager or service coordinator must ensure that the requirements in subsections (a) and (b) of this section are followed when the individual's service planning team meets to:

(1) develop the individual's person-centered service plan upon:

(A) initial enrollment; and

(B) for annual renewals; and

(2) revise the individual's person-centered service plan if the purpose of the revision is because the individual expresses a desire to work and the individual's person-centered service plan does not include an employment service.

§284.107.Strategies to Increase Number of Individuals Receiving Employment Services.

The Texas Health and Human Services Commission (HHSC) utilizes the following strategies to increase the number of individuals receiving employment services from the Texas Workforce Commission (TWC) or through the waiver program in which an individual is enrolled:

(1) use of the HHSC Employment First Discovery Tool identified in §284.105(a)(2) of this chapter (relating to Uniform Process);

(2) maintain a memorandum of understanding between HHSC and TWC to enable data sharing between those agencies in order to measure the number of individuals utilizing employment services;

(3) implement an employment-first policy jointly adopted by HHSC, the Texas Education Agency (TEA), and the TWC in accordance with Texas Government Code §531.02447(b); and

(4) implement additional strategies as outlined in the Promoting Independence Plan, which is HHSC's plan for implementing its obligation to provide people with disabilities opportunities to live, work, and be served in integrated settings.

§284.109.Referrals to the Texas Workforce Commission.

After completing the HHSC Employment First Discovery Tool, as described in §284.105(a)(2) of this chapter (relating to Uniform Process), if an individual's person-centered service plan does not include employment services through the waiver program in which the individual is enrolled, the individual's case manager or service coordinator must refer the individual to the Texas Workforce Commission (TWC) for employment services available through the TWC.

§284.111.Increasing the Number of Individuals Receiving Employment Services.

The Texas Health and Human Services Commission will ensure that the number of individuals receiving employment services from the Texas Workforce Commission or through the waiver programs in which the individuals are enrolled on December 31, 2023, is at least 5% greater than the number of individuals receiving employment services on December 31, 2022.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on October 12, 2023.

TRD-202303799

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: November 1, 2023

Proposal publication date: May 26, 2023

For further information, please call: (512) 438-4224