Current through Reg. 49, No. 38; September 20, 2024
(a) Background. To the extent feasible, and
subject to the availability of funds and other resources, the Department will
give rewards to those area agencies on aging which the Department finds have
demonstrated exceptional performance. When a contractor has failed to comply
with the terms of a contract which governs the use of monies appropriated under
that contract, the Texas Department on Aging may take actions, described in
this section, as may be legally available and appropriate to the circumstance.
It is the intent of this rule to outline the rewards available for compliance
with a contract and the sanctions available for non-compliance with contract
terms and conditions.
(b)
Definitions. Definitions for the terms used in this section are located in
§254.1 of this title (relating to the Operation of the Texas Department on
Aging) and the definitions for words and terms specific to this chapter shall
have the following meanings, unless the context clearly indicates otherwise.
(1) Level One Sanction - The sanction that
the Texas Department on Aging may impose as a response to a contractual breach
and/or failure to comply with agency rules and specific state and federal
requirements.
(2) Level Two
Sanction - The sanction that the Texas Department on Aging may impose as a
response to a severe problem and the potential negative impact such a problem
may have on a Contractor's region or the state.
(3) Level Three Sanction - The sanction that
the Texas Department on Aging may impose where a severe and/or continued
failure to comply with contractual requirements, agency rules, and/or state
and/or federal laws may affect service delivery and/or Contractor financial
stability.
(4) Level Four Sanction
- The sanction that the Texas Department on Aging may impose where a severe
and/or continued failure to comply with contractual requirements, agency rules,
and/or state and/or federal laws continues to go uncorrected.
(5) Acceptable corrective action plan -
Identification of actions to be taken, including a time line, that are
acceptable to the Department to correct an identified issue of contractual or
legal non- compliance.
(6)
Administrative payments - Payments for general administration of an Area Agency
on Aging, including any indirect costs recovery.
(7) Certified - When used in conjunction with
performance measure testing it describes having obtained acceptable results,
within tolerances allowed by the State Auditor's Office, for data
tested.
(8) Discretionary funds -
Any funds issued by the Department that are not awarded based on a general
funding formula or not awarded to all Area Agencies on Aging by action of the
Texas Board on Aging.
(9) Extension
- An approved request, which is submitted to the Department on or before the
original due date, to submit required reports or other required information
later than the established original due date. No more than 2 extensions shall
be granted in any one federal fiscal year.
(c) Preventive Maintenance. Preventive
maintenance measures, developed to ensure program outcome and provide fiscal
accountability, include technical assistance, Program Instructions, timely and
effective program and fiscal monitoring, performance measure testing, and
quality initiative reviews.
(1) Technical
assistance is performance-driven and outcome-based, stressing the sharing of
information and best practice models. Assistance is provided for both fiscal
and program issues.
(2) Program
Instructions provide clarification and interpretation of rule and are
performance- driven and outcome-based. Program Instructions may be provided for
both fiscal and program issues.
(3)
Program and Fiscal Monitoring assistance may include site visits, desk reviews,
and analysis of both financial and program outcomes to help identify potential
weaknesses before such weaknesses result in sub-standard performance or
questioned costs. Monitoring may result in recommendations that provide
practical solutions that can be used to take immediate corrective
action.
(4) Performance measure
testing is conducted to determine the accuracy of data submitted to the
Department and to assess the quality of the controls in place to ensure the
consistency of accurate and well-documented data. Certification of performance
measure testing should be by design of the controls in place within the
system.
(5) Quality Initiative
assistance includes routine evaluation of essential quality indicators and
certification systems and will be enhanced with timely and relevant
professional training and technical assistance to help develop and maintain the
knowledge, skills, and abilities required across program lines.
(d) Contractor Responsibilities. A
contractor is responsible for compliance with the terms of the contract and
shall:
(1) comply, as applicable, with all
governing documents set forth in §254.3 of this title (relating to
Governing Documents);
(2) comply
with the requirements of approved contracts or plans;
(3) meet the administrative and service
requirements as published by the Department, including, but no limited to, all
budget documents and required reporting in a timely, complete, and accurate
manner, consistent with §260.1 of this title (relating to Area Agency on
Aging Administrative Requirements), and §260.2 of this title (relating to
Area Agency on Aging Fiscal Responsibilities);
(4) respond to requests by the Department for
specific correction as a result of:
(A) the
area plan or area plan amendment review;
(B) program and fiscal reviews, monitoring
and assessments;
(C) investigation
and response to complaints; or
(D)
erroneous or incomplete information on program performance or financial
reports.
(e)
Rewards. Rewards for exceptional performance will be determined by the
Department based on the results of annual monitoring of an Area Agency on Aging
by the Department. Actual rewards are not limited to, but may include, any one
or a combination of: notification of outstanding performance to the public in
the Area Agency's region and the Board on Aging; funding awards for conferences
or leadership workshops including in-state travel; funding awards for the
purchase of computer equipment; and decreased frequency of monitoring and other
review processes.
(f) Level One
Sanctions. Level one sanctions may result in one or more of the following
actions:
(1) require the development,
submission, and implementation of an acceptable corrective action plan to
address identified weaknesses and/or non-compliance;
(2) submission of additional and/or more
detailed financial and/or performance reports;
(3) designation as a high-risk contractor
requiring additional monitoring visits; and
(4) repayment of disallowed costs.
(g) Level Two Sanctions. Level two
sanctions may result in one or more of the following actions:
(1) imposition of one or more level one
sanctions;
(2) restrictions on
ability to draw down contractor/Area Agency on Aging administrative funds with
notice of such action to the Area Agency on Aging Director, the Area Agency on
Aging Director's superior, and the contractor's Chairman of the Board or
comparable agency official;
(3)
prohibit participation in discretionary funds application or carryover pool
redistribution; and
(4) provision
of appropriate technical assistance.
(h) Level Three Sanctions. Level three
sanctions may result in one or more of the following actions:
(1) imposition of one or more level one
sanctions;
(2) imposition of one or
more level two sanctions;
(3)
prohibit or limit provision of direct services by contractor/Area Agency on
Aging;
(4) prohibit or limit the
use of specific service providers/vendors; and
(5) imposition of the requirement that
reimbursement payments made to contractor/Area Agency on Aging for the
remainder of the fiscal year shall be made only following submission of bills
paid or other documentation to show that bills for which reimbursement is
sought have been paid.
(i) Level Four Sanctions. Level four
sanctions may result in one or more of the following actions:
(1) imposition of one or more level one
sanctions;
(2) imposition of one or
more level two sanctions;
(3)
imposition of one or more level three sanctions;
(4) require directed amendment to current
area plan; and
(5) recommend
dedesignation and/or cancellation of the contract of the Area Agency on Aging
to the Texas Board on Aging.
(j) Administrative Violations. Administrative
violations shall result in disciplinary actions as specified in this section,
unless the violation was due to an act of God or action by the Department.
Violations will be documented and greater levels of administrative sanctions
will be applied for non-compliance issues deemed most serious and for continued
non-compliance of less serious offenses.
(k) Violations Subject to Level One
Sanctions. Violations which may result in the imposition of level one sanctions
include the following:
(1) failure to submit a
required report by the due date or approved extension. For purposes of this
violation, a Form 269 and CIS/MIS submission for a single month shall be
considered one report submission;
(2) failure to submit required reports
accurately and completely, if identified by the Department (not to exceed two
instances in one fiscal year), and not corrected within five workdays following
notification;
(3) failure, on the
third occurrence, to submit required reports accurately and completely, if
identified by the Department, whether or not a violation notice was previously
issued;
(4) failure to submit
timely an acceptable corrective action plan for findings of program and fiscal
monitoring within 45 days;
(5)
failure to conduct an appropriate audit review process for required provider
audits;
(6) failure to resolve
deficiencies noted in an audit review within timeframes established by
contract;
(7) failure to comply
with the Department's requirements related to the Agreement Between the State
of Texas and the Secretary of the Treasury, the United States Department of the
Treasury in Accordance With the Cash Management Improvement Act of 1990 (CMIA),
and its attendant regulations as set forth in 31 Code of Federal Regulations
(CFR), Part 205, for the first time within a budget period; and
(l) Violations Subject to Level
Two Sanctions. Violations which may result in the imposition of level two
sanctions include the following:
(1) failure
to rectify any level one sanction within the timeframe established for
corrective action;
(2) failure to
timely complete corrective actions provided in any corrective action
plan;
(3) failure to timely submit
a Single Audit, in accordance with OMB Circular A-133, to the
Department;
(4) failure to be
certified as having had accurate data following performance measure
testing;
(5) commits a second
violation, within a budget period, of the Department's requirements related to
the Agreement Between the State of Texas and the Secretary of the Treasury, the
United States Department of the Treasury in Accordance With the Cash Management
Improvement Act of 1990 (CMIA), and its attendant regulations as set forth in
31 Code of Federal Regulations (CFR), Part 205;
(6) failure to conduct on-site monitoring of
providers as required;
(7) failure
to issue letter of findings within 30 days following on-site monitoring or
quality assurance review (QAR) of service providers; and
(8) failure to assure contractor's resolution
of deficiencies found during service provider's monitoring/quality assurance
review within the timeframes established in the corrective action
plan.
(m) Violations
Subject to Level Three Sanctions. Violations which may result in the imposition
of level three sanctions include the following:
(1) failure to rectify any level 1 sanction
within 90 days following the timeframe established for corrective
action;
(2) failure to rectify any
level 2 sanction within the timeframe established for corrective
action;
(3) failure to
appropriately act upon reported or identified threats to the health and safety
of program participants within 72 hours of notice/identification;
(4) failure to appropriately report and
respond to allegations of abuse, neglect, and/or exploitation, and/or
allegations of fraud or ethics code violations;
(5) failure to have tested data certified as
accurate 2 times out of any 4 consecutive performance measure tests;
and
(6) commits four or more level
one violations or three or more level two violations within the same fiscal
year.
(n) Violations
Subject to Level Four Sanctions. Violations which may result in the imposition
of level four sanctions include the following:
(1) failure to rectify any level 1 sanction
within 180 days following the timeframe established for corrective
action;
(2) failure to rectify any
level 2 sanction within 90 days following the timeframe established for
corrective action; and
(3) failure
to rectify any level 3 sanction within the timeframe established for corrective
action.
(o) Notice.
(1) The date of notice shall be the date the
notice is sent to the contractor via facsimile transmission (FAX), if
transmitted or recorded as delivered by 12:00 Noon on a regular business day.
If transmitted after 12:00 Noon, the next business day will be considered the
date of notice.
(2) All notices of
violations will be sent by the following methods:
(A) facsimile (FAX) transmission for all
notices; and
(B) letter by regular
mail for violations subject to a level one and level two sanction or, for
violations subject to a level three and level four sanction, by regular mail,
return receipt requested.
(3) All notices will be addressed to:
(A) the contractor's Executive Director or
designated representative;
(B) the
Director of the Area Agency on Aging; and
(C) the contractor's Chairman of the Board or
comparable agency official.
(p) Fraud. All allegations of fraud will be
investigated by the Department. Complaints will be referred to the appropriate
agency for action. Since payments to contractors are made from both State and
Federal funds, submission of false or fraudulent claims, statements, documents,
or the concealment of a material fact may be prosecuted as a felony in either
Federal or State Court.
(1) The Department
will inform the contractor of the exact nature of the complaint and may require
the contractor to conduct its own internal investigation.
(2) The Department will document its
investigation's findings and conclusions and inform the contractor and the
complainant of the results. If an investigation indicates there is a
substantiated situation in which there is a question of fraud, the Department
will require the contractor to take corrective action and/or refer the
complaint to the Texas Attorney General's Office, the United States Attorney
General's Office and other appropriate law enforcement agencies.
(q) Ethics Code Violations.
Violations of the Ethics Code requirements, Texas Government Code 572, related
to ethics, as specified in the contract, will be investigated by the Department
and referred by the Department to the appropriate law enforcement agency.
Ethics violations may result in criminal prosecution and may be pursued based
on the provisions of the Texas Government Code, the Election Code, the Penal
Code, or other pertinent laws and regulations.
(1) The Department will inform the contractor
of the exact nature of the complaint and may require the contractor to conduct
its own internal investigation.
(2)
The Department will document its investigation's findings and conclusions and
inform the contractor and the complainant of the results. If an investigation
indicates there is a substantiated situation in which there is a question of
ethics code violations, the Department will require the contractor to take
corrective action and/or refer the complaint to appropriate law enforcement
agencies.
(r) Abuse,
Neglect, and Exploitation. Abuse, neglect, exploitation and other violations of
client rights will be reported by the Department to the appropriate
authorities.
(s) Other Remedies.
The Department may take and/or impose other remedies that are legally available
based on the circumstances involved.
(t) Procedures for the Withdrawal of Area
Agency on Aging Designation.
(1) If the
Department proceeds to withdraw Area Agency on Aging designation, action shall
be taken to assure that appropriate individuals and agencies are informed in
advance of the reasons which make it necessary. Correspondence shall be
prepared summarizing the basis for the action. This correspondence shall be
mailed by certified mail, return receipt requested, to the contractor and other
interested parties, including subcontractors or vendors for the contract
involved. Such notification will be sent at least ten working days prior to the
effective date of the dedesignation as an area agency on aging. Such
notification shall explain the right of the contractor to appeal such decisions
as outlined in 254.15 of this title (relating to Appeal Procedures for Area
Agencies on Aging Contractors).
(2)
Procedures following withdrawal of designation. If the Department withdraws an
area agency's designation, the Department shall take the following action:
(A) Notify Appropriate Entities. The
Department shall notify by certified mail, return receipt requested, the
Assistant Secretary on Aging, Department of Health and Human Services, and
those individuals and agencies specified in paragraph (1) of this
subsection;
(B) Continue Services.
The Department shall provide a plan for the continuity of services in the
affected planning and service area and will:
(i) discontinue reimbursement to the
contractors concerned;
(ii) notify
service providers to submit requests for reimbursement directly to the Texas
Department on Aging or to the designated contractor;
(C) place a notice in local and regional
newspapers advising that claims against the contractor related to Older
Americans Act programs shall be referred to the Texas Department on Aging;
and
(D) designate an interim or new
area agency in the planning and service area within 180 calendar days, or
extension of time approved by the Administration on Aging.
(3) Administration by the Department. If
necessary to ensure continuity of services in a PSA, the Department may, for a
period of up to 180 calendar days after withdrawing designation of an area
agency:
(A) perform the area agency
responsibilities;
(B) assign the
responsibilities of the area agency to another agency in the planning and
service area;
(C) assign the
responsibility to an area agency on aging in a contiguous planning and service
area; or
(D) if necessary, may
request an extension of the 180 day limit from the Assistant Secretary. The
Assistant Secretary may extend the period an additional 180 calendar days if
the need for the extension is demonstrated.
(u) Appeals. Appeals will be provided as
specified in §254.15 of this title (relating to Appeal Procedures for Area
Agency on Aging Contractors).