Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 28.
MEDICAID THIRD PARTY RECOVERY
On behalf of the State Medicaid Director, the Texas Department of
Health (department) adopts an amendment to §28.102, and new §§28.501-28.503
relating to health insurer requirements for third party recovery in the Medicaid
program. Section 28.503 is adopted with changes to the proposed text as published
in the February 18, 2000, issue of the
Texas Register
(25 TexReg 1252). Sections 28.102, 28.501 and 28.502 are adopted without
changes and therefore will not be republished.
The Social Security Act, §1902a(25) (codified at 42 U.S.C. §1396a(a)(25))
requires the department to implement reasonable procedures to identify, establish,
and seek recovery from third parties who may have a legal liability to pay
for services provided by Medicaid. The Human Resources Code, §32.042,
establishes the requirement that the department must identify Medicaid recipients
and applicants who have third party health insurance coverage and that health
insurers must provide information to the department to accomplish this requirement.
It also provides a penalty for any insurer who fails or refuses to comply
with the requirements of the section. These final rules implement the department's
procedures for entering into agreements with health insurers, the information
required from health insurers, the method of compliance and protections of
confidentiality of Medicaid recipients and health insurers providing the information,
and the imposition of penalties for a health insurer's failure to provide
the requested information.
There were no comments received from the public on the proposed rules.
The department is making the following editorial changes to clarify the intent
and improve the accuracy of the rules.
Change: Concerning §28.503(e), the department clarified that if the
insurer did not request a hearing within the time stated, the right to a hearing
is waived. Also, concerning §28.503(e), the department deleted the statement
that the penalties would accrue until paid or until final judgment, as this
provision is redundant and all penalties are appealable and subject to review
by the court. No other changes were made to the rules.
Subchapter A. GENERAL PROVISIONS
25 TAC §28.102
The amendment is adopted under the Human Resources Code, §32.033,
which gives the department the authority to adopt rules for the enforcement
of its third party recovery rights, and Government Code, §531.021, which
gives the Health and Human Services Commission the authority to adopt rules
to administer the state's medical assistance program and is submitted by the
Texas Department of Health under its agreement with the Health and Human Services
Commission to operate the purchased health services program and as authorized
under Chapter 15, §1.07, Acts of the 72nd Legislature, First Called Session
(1991).
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 8, 2000.
TRD-200004058
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 28, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 458-7236
25 TAC §§28.501-28.503
The new sections are adopted under the Human Resources Code, §32.033,
which gives the department the authority to adopt rules for the enforcement
of its third party recovery rights, and Government Code, §531.021, which
gives the Health and Human Services Commission the authority to adopt rules
to administer the state's medical assistance program and is submitted by the
Texas Department of Health under its agreement with the Health and Human Services
Commission to operate the purchased health services program and as authorized
under Chapter 15, §1.07, Acts of the 72nd Legislature, First Called Session
(1991).
§28.503.Notice and Appeal of Administrative Penalty.
(a)
The department will send the insurer a Notice of Administrative
Penalty at least 30 days prior to the date that administrative penalties will
begin to accrue. The notice will contain the following information:
(1)
the date on which administrative penalties will begin to
accrue if the information requested by the department is not received on or
before that date; and
(2)
the amount of the administrative penalty which will be
assessed for each day of non-compliance after the date indicated on the notice
letter.
(b)
If the insurer does not submit the information on or before
the date on which administrative penalties begin to accrue, penalties will
be assessed as stated in the notice letter.
(c)
An insurer may request a hearing in writing within 20 days
of receiving written notice from the department of administrative penalty
.
(d)
If a hearing is requested, the hearing is a contested case
under the Administrative Procedure Act, Government Code, Chapter 2001, and
the department's formal hearing rules in Chapter 1 of this title (relating
to Formal Hearings).
(e)
If an insurer fails to submit a request for hearing within
20 days from the date of the notice letter, or fails to appear at a scheduled
hearing, the right to a hearing is waived and the amount of penalties assessed
per day of non-compliance is final.
(f)
The order of administrative penalty will be reported to
the attorney general for collection.
(g)
The enforcement of the penalty may be stayed during the
time the order is under judicial review if the insurer pays the penalty assessed
as of the date of the order to the clerk of the court or files a supersedeas
bond with the court in the amount of the penalty. An insurer who cannot afford
to pay the penalty or file the bond may stay the enforcement by filing an
affidavit in the manner required by the Texas Rules of Civil Procedure for
a party who cannot afford to file security for costs, subject to the right
of the department to contest the affidavit as provided by the Texas Rules
of Civil Procedure.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on June 8, 2000.
TRD-200004059
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: June 28, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 458-7236
25 TAC §34.3, §34.31
On behalf of the State Medicaid Director, the Texas Department
of Health (department) adopts an amendment to §34.3 and new §34.31,
concerning deinstitutionalization of children from Texas nursing facilities
under emergency and non-emergency situations. Section 34.3 and new §34.31
are adopted with changes to the proposed text as published in the February
18, 2000, issue of the
Texas Register
(25
TexReg 1254).
The sections are intended to allow the department to move eligible children
from nursing facilities to their homes, if the parent(s) make that choice.
New §34.31 allows the Medically Dependent Children Program (MDCP) to
offer program participation to eligible children in the event of an emergency
or unforeseen closure of a Texas nursing facility and makes permanent an emergency
rule addressing this issue adopted by the board on November 19, 1999.
Amended §34.3 broadens the pool of potentially eligible children who
may be considered for non-emergency deinstitutionalization through an existing
interagency agreement with the Texas Department of Human Services. It eliminates
the requirement that a child must have been a resident in a Texas nursing
facility prior to September 1, 1997, to be considered under the interagency
agreement. The amendment requires only that the child have been a resident
in a Texas nursing facility for four months to be considered for participation
under the agreement. If, prior to residency in a Texas nursing facility, the
child resided in another institution in Texas for long term care purposes,
the amendment allows that time in the other institution to count towards the
four months of residency in a Texas nursing facility. Further, MDCP retains
the option of giving preference for access to these limited slots to children
who were residing in a Texas nursing facility prior to the adoption of these
rules.
The following comments were received concerning the proposed rules. Following
each comment is the department's response and any resulting change(s).
Comment: One commenter requested that the language in the final rules clarify
that slots designated for deinstitutionalization under the interagency agreement
would be preserved for that purpose and would not be used for children served
under the emergency deinstitutionalization provision.
Response: The department disagrees. It cannot assure that these slots will
be preserved in such a situation. Utilization rates of slots designated under
the interagency agreement, the number of children requiring slots under the
emergency deinstitutionalization, and fiscal implications are among the issues
that will be considered with respect to preservation of slots. No change was
made as a result of this comment.
Two commenters requested that the language related to deinstitutionalization
under the interagency agreement state that any child who has resided in a
nursing facility in the past six months have access to these slots, thereby
removing the date-specific residency requirement.
The department agrees in part. The commenters recommendation has been modified
to eliminate the date-specific residency requirement. The department has revised
the language of §34.3(c) to allow any child who has resided in a Texas
nursing facility for four months since September 1, 1995, to access these
slots; however, preference for access to these slots may be given to those
children who were residing in the Texas nursing facility prior to the effective
date of these new and amended rules. This modification comports with the departments
twofold intent: it provides an opportunity for a broader pool of children
to be considered under the interagency deinstitutionalization agreement, and
it is structured in a manner that precludes the placement of a child in a
nursing facility for the purpose of accessing one of the deinstitutionalization
slots.
The comments received were generally favorable; however, commenters had
questions, specific concerns, and/or offered suggestions for changes. The
commenters were Advocacy, Inc., and United Cerebral Palsy of Texas.
The amendment and new section are adopted under the Social Security
Act, §1915(c) relating to Medicaid waiver programs for home or community
based services; Chapter 15, §1.07, Acts of the 72nd Legislature, First
Called Session (1991), as amended by Chapter 747, Actions of the73rd Legislature
(1993) which authorizes the Texas Board of Health (board) to adopt rules necessary
to administer the MDCP; and the Health and Safety Code §12.001, which
provides the board with authority to adopt rules to implement every duty imposed
by law on the board, the department, and the commissioner of health.
§34.3.Participant Eligibility Criteria.
(a)
Applicant eligibility. To be an applicant of the Medically
Dependent Children Program (MDCP), an individual must reside in Texas.
(b)
Participant eligibility. To be a participant of the MDCP,
an individual must:
(1)
live in Texas;
(2)
be under 21;
(3)
be Medicaid eligible;
(4)
participate in no other §1915(c) Medicaid waiver program;
(5)
meet the medical necessity criteria for nursing facility
care. Each applicant's/participant's medical necessity criteria must be assessed
on the client assessment review and evaluation form. Reevaluations are performed
at a minimum every 12 months using the same process;
(6)
have a physician's signed approval attesting that the authorized
and other specified services are necessary to avoid institutional placement
and are appropriate to meet the participant's needs in the home. The physician-approved
individual plan of care (IPC) must specify health-related care needs and must
document waiver services, non-waiver Medicaid services, and any other home
and community-based services, as well as services and supports provided by
the primary caregiver(s);
(7)
have an IPC which documents the Texas Department of Health's
(department's) plan to authorize and the participant's plan to utilize waiver
services without an interruption in service delivery of more than 60 days;
(8)
have an approved IPC for which the projected annual cost
for waiver services does not exceed the established annual waiver service
cost allowance. The allocation for direct care waiver services (respite services
and adjunct supports) for participants who are age 20 will be prorated for
the participant's remaining eligibility period. The department may grant exceptions
to the cost allowance for respite services or adjunct supports on a temporary
basis when extenuating circumstances preclude the development or implementation
of an IPC within the cost allowance. In such cases, approval will depend upon
the department's review of the circumstances of the request; upon the availability
of other resources, including family, volunteer, or community resources; and
upon the waiver program's financial status. The department may deny requests
for exceptions to the annual cost allowance if vacancies in the waiver are
frozen, if the program anticipates a budgetary shortfall, if the primary caregiver
does not participate in identifying and pursuing other possible resources
which must be used prior to waiver services, or if the request does not demonstrate
that extenuating circumstances exist. A reduction in the annual cost allowance
does not in itself constitute an extenuating circumstance. Following a review
of the circumstances, the department will determine which category of exceptional
funding is appropriate, as described in subparagraphs (A) and (B) of this
paragraph. The specific amount approved within a given category will be based
on a budget developed to address the extenuating circumstances. Once approved,
continuation of funding for each approved exception to the cost allowance
is subject to periodic review and renewal.
(A)
Category A. The department may grant an exception to a
participant's annual cost allowance not to exceed 10% of the participant's
annual cost allowance if the existing extenuating circumstances will likely
be resolved within six months.
(B)
Category B. The department may grant an exception to the
participant's annual cost allowance under one or more of the special circumstances
described in clauses (i)-(iv) of this subparagraph. The total amount allowable
for exceptions under Category B may not exceed $5,000. Special circumstances
include:
(i)
the caregiving ability of the participant's sole primary
caregiver is expected to be affected significantly for more than six months
due to a disability or illness of the caregiver;
(ii)
the caregiving ability of the participant's primary caregiver
is expected to be affected significantly for more than six months due to a
disability or illness of one of the participant's siblings, parents, grandparents,
or other member of the participant's household; or due to the recent loss
of another primary caregiver;
(iii)
the participant's primary caregiver needs additional
services to support provider training during a transition from one type of
provider to another. An exception under this circumstance may not exceed $1,000;
and
(iv)
the participant has a severe immunological disorder or
a similar medical condition which would make child care in a group setting
a life-threatening situation; and
(9)
meet the following requirements:
(A)
the applicant or participant must be eligible for supplemental
security income (SSI) benefits in the community; or
(B)
the applicant or participant must meet SSI disability criteria
and must:
(i)
meet the institutional income and resource criteria established
for the Texas Medicaid Program; or
(ii)
be an individual under 19 years of age for whom the Texas
Department of Protective and Regulatory Services (PRS) assumes financial responsibility,
in whole or in part (not to exceed Level II foster care payment), and who
is being cared for in:
(I)
a family foster home which is licensed or certified and
supervised by PRS; or
(II)
a family foster home which is licensed or certified and
supervised by a licensed public or private nonprofit child-placing agency;
or
(iii)
be a member of a family which receives full Medicaid
benefits as a result of qualifying for temporary assistance to needy families
(TANF); or
(iv)
qualify under other Medicaid Type Programs covered under
the waiver.
(c)
Deinstitutionalization.
(1)
Any MDCP registrant who has resided in a Texas nursing
facility for at least four months since September 1, 1995, may be considered
for deinstitutionalization into MDCP under §34.3; however, if, prior
to residency in a Texas nursing facility, the child resided in another institution
in Texas for long term care purposes, that time in the other institution may
count towards the four months of residency in a Texas nursing facility for
purposes of this section; and further, preference for access to these slots
may be given to those children who were residing in a Texas nursing facility
prior to the effective date of the rules, if:
(A)
has been determined to be Medicaid eligible; and
(B)
has met all of the criteria in subsection (b) of this section.
(2)
The names of qualified individuals applying for nursing
facility deinstitutionalization shall be maintained on a waiting list separate
from that for other MDCP registrants.
(3)
An individual applying for nursing facility deinstitutionalization
under MDCP shall become eligible for waiver services under this subsection
if:
(A)
a vacancy designated for qualified individuals under this
subsection exists within the waiver; and
(B)
the individual's Texas Index for Level of Effort (TILE)
funding is available to be allocated for home and community-based services.
(d)
Applicant/participant choice. An eligible applicant or
participant and his parent or guardian or both must be provided the option
of:
(1)
participating in the waiver program as specified in the
IPC;
(2)
being placed in institutional care; or
(3)
refusing both options specified in paragraphs (1) and (2)
of this subsection.
(e)
Waiting lists. Participants in the waiver program are selected
from the MDCP waiting list, which is maintained on a first-come, first-served
basis. The names of Medicaid-eligible, qualified individuals who complete
the MDCP pre-application registration process and who are residents of a Texas
nursing facility as described in subsection (c) of this section are maintained
on a separate waiting list for nursing facility deinstitutionalization. Their
participation in the waiver will not delay the entry of individuals who are
not residents of a Texas nursing facility and whose names are maintained on
the regular MDCP waiting list. A registrant's waiting list status is assured
unless:
(1)
the pre-application registration materials clearly indicate
the individual does not qualify as a candidate for the waiver program; or
(2)
the family or the registrant requests that the registrant's
name be removed from the waiting list.
(f)
Medicaid eligibility date. A participant's Medicaid eligibility
under the waiver is contingent upon the actual delivery of waiver services.
For participants eligible for Medicaid only through this waiver, the effective
date of Medicaid coverage coincides with the date the participant actually
receives waiver services.
(g)
Application deadline. If a registrant fails to complete
and return all required application materials within 35 calendar days from
the date of the application transmittal letter, the registrant's potential
application shall be closed. In such a case, the registrant's name may be
re-entered at the end of the waiting list, upon request. Exceptions may be
made following a review of special circumstances.
(h)
Eligibility denial and exceptions. Unless an exception
is made following a review of special circumstances, waiver eligibility shall
be denied or terminated if:
(1)
waiver services are not utilized as described in the IPC,
unless:
(A)
the participant is hospitalized;
(B)
the planned waiver service provider is temporarily unable
to comply with the participant's IPC;
(C)
a replacement waiver service provider is being sought;
or
(D)
other non-waiver, non-Medicaid resources are being used
temporarily;
(2)
the applicant/participant's primary caregiver fails to
return a signed IPC within the specified time frame, not to exceed 30 days
from transmittal of the unsigned document;
(3)
the applicant/participant's primary caregiver does not
participate in the eligibility determination process, the care planning process,
or the implementation of the IPC;
(4)
the applicant/participant's primary caregiver does not
comply with the responsibilities enumerated in a departmental form which he/she
has signed; or
(5)
the IPC, inclusive of MDCP services, does not reflect a
routine direct care contribution by the primary caregiver(s).
(i)
Reduction in services. Waiver services may be reduced when:
(1)
the need for waiver services decreases as determined during
the care planning process;
(2)
non-waiver resources become available;
(3)
the primary caregiver does not participate fully in the
care planning process;
(4)
the participant's TILE score changes in such a way that
the participant's annual cost allowance decreases;
(5)
the rate(s) paid to MDCP providers increase and the participant's
IPC is already at the maximum annual cost allowance;
(6)
a time-limited exception to the annual cost allowance expires;
or
(7)
MDCP expenditures and budgetary considerations and constraints
indicate that cost reduction is necessary.
§34.31.Deinstitutionalization Due to Closure of Facility.
(a)
An individual who resided in a Texas nursing facility and
continued to reside there until scheduled to be discharged from the facility
due to its closure may apply for services to support the individual's deinstitutionalization
if the individual:
(1)
has been determined to be Medicaid eligible; and
(2)
has met all of the criteria in of §34.3(b) of this
title (relating to Participant Eligibility Criteria).
(b)
The names of qualified individuals applying for nursing
facility deinstitutionalization under the Medically Dependent Children Program
(MDCP) shall be maintained on a waiting list separate from that for other
MDCP registrants.
(c)
An individual applying for nursing facility deinstitutionalization
under MDCP shall become eligible for waiver services under this subsection
if:
(1)
a vacancy designated for qualified individuals under this
subsection exists within the waiver; and
(2)
the individual's Texas Index for Level of Effort (TILE)
funding is available to be allocated for home and community-based services.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on June 12, 2000.
TRD-200004097
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: July 2, 2000
Proposal publication date: February 18, 2000
For further information, please call: (512) 458-7236
Chapter 419.
MEDICAID STATE OPERATING AGENCY RESPONSIBILITIES
Subchapter O. ENROLLMENT OF MEDICAID WAIVER PROGRAM PROVIDERS
Subchapter E. HEALTH INSURER REQUIREMENTS
Chapter 34.
WAIVER PROGRAM FOR MEDICALLY DEPENDENT CHILDREN
Part 2.
TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION