33-1-309 - Adoption of rules. [Amendment effective until January 1, 2011. See the Compiler's Notes.]
33-1-309. Adoption of rules. [Amendment effective until January 1, 2011. See the Compiler's Notes.]
(a) The department shall adopt all rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. [Amendment effective until January 1, 2011. See the Compiler's Notes.]
(b) (1) All operating guidelines of the guidelines of the division of intellectual disabilities services (DIDS) and its successors shall be adopted pursuant to the procedure set forth in this subsection (b). For purposes of this section operating guidelines means instructions to community providers that provide residential services, day services or supported employment for service recipients through contracts with the division, referred to in this section as community providers, and instructions to intermediate care facilities for persons with mental retardation (ICF/MRs) that DIDS deems or intends to be mandatory upon the providers. Interpretive instructions, other nonmandatory guidance from DIDS and rules adopted pursuant to the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, are not operating guidelines.
(A) Before adoption of operating guidelines, the division shall provide the Tennessee Community Organizations (TNCO) and The Arc of Tennessee with a copy of the proposed operating guidelines and shall post the information on its web site. TNCO shall promptly provide a copy of the proposed operating guidelines to the community providers and ICF/MRs that are not members of TNCO and that appear on the division's web site. If, within thirty (30) days from the date the operating guidelines were provided to TNCO and The Arc of Tennessee, the division receives either, a petition from an association with at least twenty (20) members that are community providers or ICF/MRs, twenty (20) petitions from community providers or ICF/MRs, or twenty-five (25) interested persons requesting a meeting, then the division shall be required to follow the process required by this section for notice and a meeting. In those instances in which the division determines that exigent circumstances require that the operating guideline be implemented prior to the notice and the meeting, the division shall begin the process for notice and a meeting required by this section as soon as reasonably practicable after its implementation.
(B) When a meeting is required, the division shall provide at least thirty (30) days written notice to TNCO and The Arc of Tennessee of the time and place of the meeting to be held on the adoption of operating guidelines and shall include the notice on its web site. TNCO shall promptly provide the notice of the meeting to the community providers and ICF/MRs that are not members of TNCO and that appear on the division's web site.
(C) A representative of DIDS shall be present to hear comments at a hearing required by this section. The representative shall be a person designated by the deputy commissioner of DIDS who is a director level or higher employee. This designee shall be authorized to conduct the meeting in such a manner as to provide reasonable opportunity for all interested persons to provide comments.
(D) Within thirty (30) days after the meeting, DIDS shall provide responses to the specific comments received and shall state the reasons for accepting or rejecting the comments. DIDS shall maintain an official record of the meeting, submitted comments and any responses.
(2) Subdivision (b)(1) is repealed on January 1, 2011. On January 1, 2011, the provisions of subdivision (b)(1) in effect on May 1, 2007, shall be revived and reinstated.
(c) Mandatory instructions meeting the definition of operating guidelines set forth in subsection (b) that have been implemented prior to July 1, 2001, shall not be required to be readopted pursuant to the provisions of subsection (b) unless DIDS receives a petition signed by twenty-five (25) interested persons requesting a public meeting on the instruction. In that case, DIDS shall provide notice, a public meeting, opportunity for comment and responses to comment as set forth in subsection (b). An instruction that is the subject of the petition shall remain in effect. In the event that a proper petition is presented under this subsection (c) and DIDS determines that the same or substantially related issues are under consideration as a proposed operating guideline, the matters may be consolidated to avoid duplication.
(d) All methodology utilized by DIDS for determining payment to service providers shall be adopted as rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, which shall be consistent among providers providing substantially the same services.
(e) Intermediate care facilities for persons with mental retardation (ICF/MR) shall comply with rules and operating guidelines made applicable to ICF/MR facilities by DIDS. In order to monitor the care being received by persons in ICF/MR facilities, DIDS shall have reasonable access to the facilities and the medical and other records of the persons occupying the beds.
[Acts 2000, ch. 947, § 1; 2001, ch. 337, § 1; 2006, ch. 761, § 2; 2007, ch. 499, § 1; 2009, ch. 477, § 1.]