Part 1.
TEXAS DEPARTMENT OF HEALTH
Chapter 38.
CHRONICALLY ILL AND DISABLED CHILDREN'S SERVICES PROGRAM
25 TAC §§38.1 - 38.18
The Texas Department of Health (department) adopts the repeal
of §§38.1 - 38.18 and new §§38.1 - 38.15 concerning the
Children with Special Health Care Needs (CSHCN) Services Program. Sections
38.2 - 38.4, 38.6, 38.7, 38.10, and 38.12 - 38.14 are adopted with changes
to the proposed text as published in the October 27, 2000, issue of the
The new rules cover purpose and common name; definitions; eligibility for
client services; covered services; rights and responsibilities of parents/foster
parents/guardian/managing conservator or the adult client; providers; ambulatory
surgical care facilities; inpatient rehabilitation centers; cleft/craniofacial
center teams; payment of services; contracts, written agreements, and donations;
denial/modification/suspension/termination of eligibility and/or services;
right of appeal; development and improvement of standards and services; and
the Children with Special Health Care Needs (CSHCN) Advisory Committee.
The repeal of §§38.1-38.18 allows for the adoption of the new
sections in
Texas Register
format. The new §§38.1-38.15
update and revise the CSHCN program to bring the program into compliance with
state law; to improve program services for clients, families, providers, and
contractors; to make the program administratively more efficient and effective;
and to allow the program better to complement other programs serving children
with special health care needs, including the Texas Medical Assistance (Medicaid)
Program and the Children's Health Insurance Program (CHIP). Senate Bill 374,
76th Legislature, 1999, amended the Health and Safety Code, Chapter 35, requiring
changes to the CSHCN program. The new sections implement Senate Bill 374.
Changes made to the proposed text result from comments received during
the comment period. The details of the changes are described in the summary
of comments that follow. Other minor changes were made due to staff comments
to clarify the intent and improve the accuracy of the sections.
Comment: Concerning the chapter as a whole, several comments recommended
that the financial eligibility criteria for the CSHCN program should be the
same as those for the CHIP program. CSHCN who are eligible for CHIP also should
be eligible for CSHCN program benefits not included in the CHIP benefit plan,
and applicants to both programs should not be required to complete two similar,
but separate application forms to document financial criteria.
Response: The department agrees that the CSHCN financial eligibility criteria
and application forms for the CSHCN program should be as compatible as possible
with those for the CHIP program. The CSHCN program and CHIP already set family
income eligibility at 200% of the federal poverty level, employ comparable
financial criteria, and serve similar client populations. Streamlining the
CSHCN application process will improve delivery of program service to families.
The department amended the description of financial criteria in §38.3(2)
as follows: "Financial criteria are determined annually and are based upon
the same determinations of income, family size, and disregards as the CHIP.
The CHIP net income is the family's gross income minus disregards. For applicants
who are not eligible for CHIP, premiums paid for health insurance may be included
as an additional disregard. All families must verify their income and disregards."
The department has deleted proposed §38.3(2)(A) and §38.3(2)(B)
and re-designated the remaining subparagraphs.
The department amended §38.3(7)(B) to require documentation for "income
disregards" in the application process and added "criteria for" to clarify §38.3(8).
Comment: Concerning the chapter as a whole, one comment stated that if
the CSHCN program initiates a denial, suspension, or termination of eligibility
or a request for covered services, including family supports, inclusion of
information by the program concerning the right to appeal and the time limits
for the appeal along with notice of the program's adverse action is critical.
Response: The program agrees. Sections 38.3(6)(C), 38.4(b)(5)(B)(viii),
and 38.13(b)(1) address these requirements. No changes were made as a result
of this comment.
Comment: Concerning the chapter as a whole, several comments stated that
home health agencies are now called "certified home and community support
services" agencies.
Response: The department agrees and has amended §§38.4(b)(3)(Q),
concerning program rehabilitation services; 38.6(c)(19), concerning providers;
and 38.10(3)(K), concerning payment of services accordingly.
Comment: Concerning the chapter as a whole, one comment recommended that
any limitations on eligibility or covered services based on budgetary limitations
by type of service, by age, and/or by client's medical status be defined in
rule and approved by the Board of Health.
Response: The department agrees that specific criteria for making budgetary
limitations should be carefully defined at the time that such limitations
are necessary. However, adoption of such criteria by rule could restrict significantly
the program's flexibility and its ability to implement a timely response to
changing needs. No changes were made as a result of this comment.
Comment: Concerning the chapter as a whole, one comment recommended that
eligible clients should be moved from the waiting list to begin receiving
program services solely on a first come, first served, basis without regard
to the urgency or severity of the client's needs or condition.
Response: The department disagrees. During development of the rule, many
stakeholders expressed concern that if the waiting list is administered according
to a strict first-come, first-served policy, critically ill children might
languish on the waiting list while other "less ill" children would be able
to receive program benefits. Although the program must have flexibility to
respond to individual crisis situations, the first-come, first-served principle
is a primary consideration. No changes were made as a result of this comment.
Comment: Concerning the chapter as a whole, one comment stated that CSHCN
clients who meet the Texas Department of Mental Health and Mental Retardation
(TDMHMR) priority population program definition and are referred to TDMHMR
for services through community mental health centers may find that the services
are not available. The comment stated that CSHCN clients should not be denied
services under those circumstances because the CSHCN program is the payer
of last resort.
Response: Section 38.4(e)(3), concerning services authorization, and §38.6(a)(4),
concerning general requirements for provider participation both state that
the CSHCN program is the payer of last resort, when payment from another source,
"is available to the client." If services from TDMHMR were available, CSHCN
program rules would require that the client use the TDMHMR benefit first.
However, if payment or services were not available from TDMHMR, the rule would
not require a CSHCN program denial. No changes were made as a result of this
comment.
Comment: Concerning the chapter as a whole, one comment stated that pilot
projects and wellness centers that use the "parents as case managers" model
should always receive preferential consideration for funding.
Response: The department disagrees. Although the "parents as case managers"
model should, in most instances, receive additional consideration for funding,
the decision to award funding to pilot projects and/or wellness centers should
be based upon a variety of qualifying considerations, depending upon identified
needs. No changes were made as a result of this comment.
Comment: Concerning the chapter as a whole, one comment recommended adding
rule language to specify funding categories and stating that CSHCN program
resources and funding are for CSHCN and not for general public essential public
health services.
Response: The department appreciates the intent of the comment, but disagrees
that additional rule language is needed. As the United States Health and Human
Services Title V designee, the CSHCN program must address health concerns
for children with special health care needs globally, whether they are program
eligible or not. Although the CSHCN program does not fund essential public
health services for the general public, some public health services are available
for CSHCN eligible clients in the context of comprehensive care. The program
must retain flexibility to adjust its funding categories to meet the needs
of CSHCN, and a specific funding formula required by rule might prove to be
too rigid or detrimental to the program's goals and objectives. No changes
were made as a result of this comment.
Comment: Concerning §38.2(6)(E)(iii), one comment recommended defining
"bona fide resident" as "an adult residing in Texas, including an adult whose
legal guardian is a bona fide resident or who is his/her own guardian".
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.2(10), one comment stated that use of the
word "several" in the definition of chronic developmental condition to describe
the number of major activities of daily living which need assistance, was
ambiguous.
Response: The department agrees. Quantification of activities of daily
living needing assistance does not improve the definition, and the words "several
of" have been deleted.
Comment: Concerning§38.2(10), one comment recommended adding the word
"mental" to the definition of a chronic developmental condition.
Response: The department agrees, and has amended the definition accordingly.
Comment: Concerning §38.2(11), several comments recommended amending
the definition of "chronic physical condition" in order to enhance its effective
application in program eligibility determinations.
Response: The department agrees. As amended, a "chronic physical condition"
is defined as "a disease or disabling condition of the body, of a bodily tissue
or of an organ which will last or is expected to last for at least 12 months;
that results, or without treatment, may result in limits to one or more major
life activities; and that requires health and related services of a type or
amount beyond those required by children generally. Such a condition may exist
with accompanying developmental, mental, behavioral, or emotional conditions,
but is not solely a delay in intellectual development or solely a mental,
behavioral and/or emotional condition."
Comment: Concerning §38.2(23)(D) and §38.2(23)(E), several comments
stated that the definition of "eligibility date" should be amended to enhance
their accuracy, flexibility with regard to obtaining Medicaid and CHIP eligibility
determinations, and consistency with program procedure.
Response: The department agrees. In §38.2(23)(D), medical bills that
meet the requirements for spenddown are defined to include those having a
date of service (DOS) "within 12 months from the date of receipt of the application,
or a DOS within 12 months after the financial eligibility denial date." Also
in §38.2(23)(D), the reference to "parents" has been changed to "applicant,
parent(s)," and the word "legally" has been deleted. The resulting sentence,
"Medical bills for any member of the household for which the applicant, parent(s),
guardian or managing conservator of the CSHCN applicant is responsible may
be included," now describes those medical bills that may be considered in
qualifying for spenddown eligibility.
In §38.2(23)(E), "citizenship status" and "insurance coverage" have
been added as exclusions, so that clients "who are known to be ineligible
for Medicaid and/or the CHIP due to age, citizenship status or insurance coverage,"
are not required to obtain an eligibility determination from Medicaid and/or
the CHIP. These amendments permit quicker processing of an application when
the CSHCN program has documentation indicating that an application to Medicaid
and/or the CHIP would be denied if submitted.
Comment: Concerning §38.2(27), several comments recommended changing
the definition of "family" to make it consistent with definitions used in
the CHIP, adding that consistency among program definitions facilitates determinations
of financial eligibility comparable with those of the CHIP as well as the
exchange of eligibility information between the CHIP and the CSHCN program.
Response: The department agrees. The amended definition of "family" is
comparable to definitions in the CHIP rules, is more complete, and does not
alter the original program intent for the purpose of determining financial
eligibility.
Comment: Concerning §38.2(31), several comments suggested that grandparent(s)
be added to the definition of "household," which is used in the determination
of whose medical bills may be counted to meet spenddown eligibility. Since
multi-generational families are common, a parent of a child with special health
care needs also frequently may be responsible for the medical care of an elder
parent. Those expenses would impact the ability of the family to care for
the special needs child.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.2(33), one comment recommended changing the
last sentence of the definition of "natural home" to replace the verb "utilizes"
with "may utilize," and to add "as they are available" at the end of the sentence.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.2(36), one comment suggested revision of the
definition of "permanency planning" to delete the sentence, "Permanency planning
is based upon the philosophy that all children belong in a family and need
permanent family relationships," and make it a clause at the end of the first
sentence, more completely describing the goal of permanency planning.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.2(48), several comments recommended that the
terms "applicant" or "client" replace "child," where appropriate.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.3(2)(C), one comment recommended amending
the section to describe more accurately the process for determining which
medical bills are included when applicants use spenddown to qualify for eligibility.
Response: The department agrees. Section 38.3(2)(C) as proposed has been
designated §38.3(2)(A) and now refers to "family income", rather than
"household income" and "application date" rather than "eligibility date".
The phrase "within 12 months after the financial eligibility denial date"
has been added to describe more completely the period during which medical
bills may qualify to meet spenddown requirements.
Comment: Concerning §38.3(2)(D)(i), several comments stated that requiring
clients for whom program expenditures are expected to exceed $2,000 per year
to apply to Medicaid is impractical and causes unnecessary delay in determining
CSHCN program eligibility. The comments also recommended exempting certain
applicants from the requirement to obtain a Medicaid eligibility determination
based on "medical condition" and "citizenship status" as well as age.
Response: The department agrees. Section 38.3(2)(D)(i) as proposed has
been designated §38.3(2)(B)(i) and amended to include the phrase "medical
condition or citizenship status" concerning clients who are not required to
apply to Medicaid. Also, "eligibility criteria" replaces "limitations" in
the same sentence, because it is a more accurate term. Since noncitizens are
not eligible for Medicaid, except when treated in a medical emergency, nonemergency
claims for services provided to noncitizens will never be paid by Medicaid.
Therefore, requiring noncitizens to apply for Medicaid only serves to delay
a decision on CSHCN program eligibility and creates a hardship both for clients
and for their providers.
Comment: Concerning §38.3(2)(D)(ii), several comments recommended
that noncitizens also should be exempt from similar program requirements that
clients whose expenses exceed $2,000 per year apply for the Supplemental Security
Income (SSI) program
Response: The department disagrees. Section 38.3(2)(D)(ii) as proposed
has been redesignated as §38.3(2)(B)(ii), which authorizes but does not
mandate that the CSHCN program "require a client for whom actual or projected
expenditures exceed $2,000 per year to apply for the SSI program." Applying
and qualifying for the SSI program is a more complex and lengthier process
than applying for Medicaid, incorporating both medical and financial eligibility
criteria. The section as amended allows flexibility without imposing constraints
which are unreasonable or applicable to only a limited number of clients.
No changes were made as a result of this comment.
Comment: Concerning §38.3(3)(B) and §38.3(3)(C) as proposed,
several comments recommended revision such that new applicants to the program
as well as clients renewing their eligibility be required to apply for available
insurance coverage, including enrollment in CHIP, that program intent be clarified
concerning extension of coverage while other applications may be pending,
and also that appropriate exemptions for applicants or clients who did not
qualify for other insurance or CHIP by reasons of age or citizenship status
be allowed.
Response: The department agrees and has amended the section accordingly.
The term "applicant/client" replaces "family" to describe persons to whom §38.3(3)(B)
applies. The phrase "or eligibility renewal" has been added following "at
the time of application" to describe the time at which the requirement applies.
The clause "the applicant/client that is not exempt by reason of age or citizenship
status" has been added to specify the circumstances under which obtaining
insurance or CHIP coverage is not required. "Within 60 days of the date of
the notification" replaces "prior to receiving CSHCN eligibility" to change
the deadline for compliance. In addition to the amended deadline, the following
sentence has also been added: "With verification of an application to an available
health insurance plan, the program may extend this deadline and/or continue
CSHCN program coverage, pending receipt of an insurance eligibility determination."
The CSHCN program intends to provide coverage for otherwise qualified applicants/clients
during a reasonable period of time during which another application is pending.
Section 38.3(3)(B) as proposed also has been amended by creation of §38.3(3)(C),
including other amendments. "Families" has been deleted, "may provide" replaces
"will provide", and program "benefits" replaces "assistance" to more accurately
describe the program policies for assisting families in determining possible
eligibility for other insurance and providing program benefits during application,
enrollment, and/or limited or excluded coverage periods for other insurance.
A sentence has been added to clarify that a family supports services plan
for an applicant may not be implemented until the determination of program
eligibility, including eligibility for an available insurance plan, is complete.
Because potential availability of other insurance affects the elements of
a family supports plan, such plans will be implemented only after the availability
of other coverage has been determined.
Section 38.3(3)(C) as proposed has been redesignated §38.3(3)(D).
Comment: Concerning §38.3(9)(B)(v), one comment suggested incorporating
"limitations or" into the phrase "the client's functional needs" among the
information to be collected to facilitate contacting clients on the waiting
list.
Response: The department agrees, and has amended the section accordingly.
Comment: Concerning §38.3(9)(C), one comment recommended that the
criteria for sequencing clients on the waiting lists should be described more
accurately.
Response: The department agrees. The amended phrases state that waiting
list order is based on "the date and time the client's application is processed
and determined eligible." Thus, applications processed for more than one client
on the same date will be sequenced according to the time of data entry as
well as the date.
Comment: Concerning §38.3(9)(D), one comment recommended that the
subparagraph be amended by adding the following sentences: "Clients must maintain
eligibility to remain on any waiting list. A lapse of eligibility constitutes
loss of position on any waiting list." The comment added that waiting lists
must include eligible clients only, and that the recommended language clarifies
the consequence for a client on a waiting list of losing eligibility.
Response: The department agrees, and has amended the section accordingly.
Comment: Concerning §38.4(b)(3), one comment recommended addition
of the phrase "but is not limited to", which will increase administrative
flexibility and prevent the need for excess detail in the listing.
Response: The department agrees, and has amended the section accordingly.
Comment: Concerning §38.4(b)(3), several comments recommended adding
a sentence to clarify that certain program services will be available only
after the necessary automation procedures and systems become operational.
The comments added that as the program transitions from reimbursement of services
based on a select list of diagnoses to one which reimburses for a more comprehensive
array of services provided to any client meeting the definition of a child
with special health care needs, some of the operational details of claims
payment may not be finalized at the time the rules become effective.
Response: The department agrees, and has amended the final sentence in
the paragraph to address this contingency.
Comment: Concerning §38.4(b)(3), one comment recommended adding laboratory
and radiology studies as rehabilitation services available for medical assessment
and treatment.
Response: The department agrees, and has amended §38.4(b)(3)(A) to
add "medically necessary laboratory and radiology studies," which accurately
reflects a long-standing program policy. In addition, the phrase "but is not
limited to" has been added to §38.4(b)(3), which lists included rehabilitation
services.
Comment: Concerning §38.4(b)(3)(B), one comment stated that mental
health "practitioners" should be defined as professionals who are licensed
to provide the services noted.
Response: The department agrees, and has amended the section to include
the phrase "professionals licensed to provide mental/behavioral health services,
including psychiatrists, licensed psychologists, licensed master level social
worker-advanced clinical practitioners, licensed marriage and family therapists,
and licensed professional counselors" in lieu of "practitioners."
Comment: Concerning §38.4(b)(3)(B), one comment stated that pharmacological
management visits with a physician for the purpose of medication monitoring
should be considered the same as any physician visit and not as a behavioral
health benefit.
Response: The department agrees, and has amended the section accordingly.
Comment: Concerning §38.4(b)(3)(E)(i)(II), several comments suggested
that the 72-hour limitation for inpatient psychiatric care frequently is not
adequate to provide assessment and crisis stabilization.
Response: The department agrees and has amended the section to allow admission
to an inpatient psychiatric facility for up to five days. However, because
this benefit is available only for assessment and crisis stabilization, the
department has included a requirement for prior authorization.
Comment: Concerning §38.4(b)(3)(E)(i)(II), several comments stated
that the requirement for a child psychiatrist to admit children under age
12 is too restrictive. Child psychiatrists may not always be available, especially
in some rural areas of the state, and retaining the requirement jeopardizes
access for some clients.
Response: The department agrees and has amended the section to require
that services be "medically necessary and furnished by a Medicaid psychiatric
hospital/facility under the direction of a psychiatrist."
Comment: Concerning §38.4(b)(3)(E)(i)(II), one comment stated that
psychologists do not have admitting privileges for inpatient psychiatric care.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(b)(3)(E)(v), one comment stated that although
many children may receive renal dialysis at a facility, others may receive
the service at home, and should do so through a renal dialysis facility authorized
to bill the CSHCN program for services or supplies.
Response: The department agrees and has amended the section to authorize
provision of services "through" rather than only "at" renal dialysis facilities.
Comment: Concerning §38.4(b)(3)(G), one comment suggested that the
scope of the medication benefit should be more specifically defined by inclusion
of the phrase "outpatient medications available through pharmacy providers."
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(b)(3)(H), one comment suggested that the
nutrition services and nutritional products benefit should be more accurately
defined by excluding "hyperalimentation/total parenteral nutrition (TPN)"
and adding a new subparagraph describing program benefits for TPN.
Response: The department agrees and has amended §38.4(b)(3)(H) accordingly.
The department has added a new §38.4(b)(3)(I) to describe the hyperalimentation/total
parenteral nutrition benefit.
Comment: Concerning §38.4(b)(3)(H)(i), one comment recommended deleting
the phrase "and provided by a dietitian licensed by the State of Texas and
enrolled as a CSHCN program participating provider," because such detail is
better addressed in policy rather than in rule.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(b)(3)(H)(ii), one comment recommended clarifying
the scope of the benefit by adding the limitation "covered by the CSHCN program,"
because the program does not cover an unlimited number or type of nutritional
products.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(b)(3)(K), one comment stated concern that
medically necessary examinations or eyewear might be needed in excess of the
limits specified in the rule, which allows no flexibility as proposed.
Response: The department agrees. Section 38.4(b)(3)(K) as proposed has
been redesignated §38.4(b)(3)(L), and the phrase, "but are not limited
to," has been added to the introductory description to allow reasonable flexibility
in authorizing benefits based upon medical necessity.
Comment: Concerning proposed §38.4(b)(3)(P), several comments stated
that the description of home health nursing services should be amended to
clarify the requirement for medical necessity.
Response: The department agrees. Section 38.4(b)(3)(P) as proposed has
been redesignated §38.4(b)(3)(Q) and has been rephrased.
Comment: Concerning §38.4(b)(5)(A)(i), several comments stated that
a client should be fully eligible for the program in order to receive family
supports services.
Response: The department agrees and has amended the section to specify
that a client must be "fully eligible." This change is consistent with the
department's response to other comments concerning the need to consider the
availability of other insurance in developing a family support services plan.
Comment: Concerning §38.4(b)(5)(D)(iii)(I), one comment recommended
that respite services in segregated settings, such as respite facilities and
camps, specified as an allowable family support service, should be limited
to 30 days per annual plan year.
Response: The department disagrees that further limits on respite services
are appropriate in rule. The department supports the view of many stakeholders
that families, together with program case management staff, should be allowed
to determine the most appropriate uses of the $3600 per client per year available
for family support services. No changes were made as a result of this comment.
Comment: Concerning §38.4(b)(5)(E), one comment recommended specifying
that "home mortgage or rent expenses, or basic home maintenance and repair"
are not allowable family support services.
Response: The department agrees and has amended the section accordingly.
Data obtained from a CSHCN program pilot project providing family support
services indicates some families do not understand that routine housing expenses
may not be paid as a program benefit.
Comment: Concerning proposed §38.4(b)(5)(E)(x), one comment stated
that the section should more clearly define the items or services which are
unallowable if paid for or reimbursed by other programs to avoid duplicating
services or reimbursement.
Response: The department agrees. The department intends to pay for only
those family support services or to supplement payment for only those medical
benefit items that cannot or should not be paid by another health insurance
program. Section 38.4(b)(5)(E)(x) as proposed has been redesignated §38.4(b)(5)(E)(xi).
The department has added the phrase "medical benefit" to specify which items
or services are included, and has replaced "support" programs with "health
insurance" programs.
Comment: Concerning §38.4(b)(5)(F), one comment recommended adding
flexibility by changing "include" to "may include."
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(b)(5)(F)(v), one comment suggested that
the rule should specify the length of time a client may remain in a nursing
facility or an institutional setting before CSHCN family support services
will be terminated. The comment suggested a time period of "up to 120 days
per year" as an example.
Response: The department disagrees because the section as proposed allows
program case management staff and families to use judgment before making the
termination decision. The department does not intend to continue family support
services when a client resides in an institutional setting. However, the section
as proposed authorizes occasional placement of a client in an institution
for respite without termination of family support services. No changes were
made as a result of this comment.
Comment: Concerning §38.4(b)(6)(C), one comment recommended adding
"guardian, or their designee" to the identification of people for whom the
program may provide meals and lodging when a child must be transported for
medical care. The current language states that only "parents" may receive
these services.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.4(c)(4), several comments recommended deletion
of "care for newborn infants" from the list of medically necessary services
which are not covered.
Response: The department agrees and has amended the section accordingly.
Although routine inpatient postnatal care for healthy newborn infants is not
a program benefit, care for children with special health care needs is a program
benefit, even when for newborns. The effective date for eligibility may be
the child's date of birth, except for premature infants, and the effective
date of eligibility for infants who are born prematurely is defined elsewhere.
Comment: Concerning proposed §38.4(c)(6), several comments recommended
adding the qualifying phrase, "except when medically necessary for the specific
treatment of a covered condition."
Response: The department agrees and has amended the section accordingly.
Since items and services to prevent pregnancy are available through other
programs, routine pregnancy prevention is not a CSHCN program benefit. Conversely,
the standard of care for some conditions found in children with special health
care needs requires pregnancy prevention because a variety of adverse outcomes
may occur with pregnancy, including endangering the mother and/or the unborn
child due to toxicities or abnormalities.
Comment: Concerning §38.4(d)(2), one comment suggested that the circumstances
in which the program may discontinue, limit, or restrict services or types
of services available to all clients should be clarified by specifically including
those occasions when funding limitations dictate the adjustment of reimbursement
for selected procedures and/or providers.
Response: The department agrees and has added "reimbursement for services"
to the actions the program may take to remain within available funding and
to provide effective and efficient program administration. The department
also has added the following sentence to clarify its intent: "Discontinuation,
limitation, or restriction may apply to selected provider types or services
and not to others."
Comment: Concerning §38.6(a)(6), several comments recommended clarification
of the requirement that CSHCN program providers also must be Medicaid providers.
Some CSHCN providers of covered services such as funeral homes and family
support respite providers are not eligible to enroll in the Medicaid program,
because no comparable Medicaid benefit exists.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.6(a)(6), several comments recommended clarification
concerning the circumstances under which a provider excluded by Medicaid would
be excluded by the CSHCN program. Some providers may provide CSHCN program
services covered by Medicaid as well as services not covered by Medicaid.
Since providers may be excluded from Medicaid for many reasons, the CSHCN
program also should exclude the provider for all CSHCN program services.
Response: The department agrees and has amended the section to provide
that any provider excluded by Medicaid for any reason shall be excluded by
the CSHCN program.
Comment: Concerning §38.6(c)(4), one comment recommended that this
provider category should be described with greater specificity.
Response: The department agrees and has amended the section as follows:
"mental/behavioral health professionals, including psychiatrists, licensed
psychologists, licensed master level social worker-advanced clinical practitioners,
licensed marriage and family therapists, and licensed professional counselors."
Comment: Concerning §38.6(c)(15) and §38.6(c)(16), one comment
suggested that these provider types should be defined more accurately.
Response: The department agrees and has amended both sections accordingly.
Comment: Concerning §38.10(1), one comment recommended inclusion of
a statement which more specifically describes the circumstances under which
a request to waive filing deadlines could be made, because providers must
understand how the program interprets "good cause" and "exceptional circumstances."
Response: The department agrees and has added the following sentences to §38.10(1):
"Waivers must be requested in writing, must identify the operational problem
causing the inability to file on time, must state that the problem has been
or is being resolved, and must acknowledge that the waiver request is made
one-time only for the identified problem. All outstanding claims related to
the identified problem must be considered at one time."
Comment: Concerning §38.10(2)(A), one comment recommended amending
the section to clarify that the program will accept bills upon which the insurance
company takes no action within a specified time period, as well as denied
claims.
Response: The department agrees and has amended the section by adding "or
nonresponse" to the title.
Comment: Concerning §38.10(2)(D), one comment recommended amending
the section to clarify when the program will pay the client's deductible or
co-insurance.
Response: The department agrees, and has added the phrase, "total amount
paid to the provider does not exceed the maximum allowed for the covered service,"
in lieu of "deductible and/or coinsurance does not exceed the maximum allowable
CSHCN program fee schedule in use at the time of service." This language more
closely parallels that used to describe "covered services" in §38.4(b)(6)(E).
Comment: Concerning §38.10(3), one comment recommended replacing the
phrase "maximum fee" with "amount." "Maximum fee" has a specific connotation
for the department's claims processing contractor, and the term "amount" is
not only more accurate, but also allows some flexibility in references to
the various fee schedules.
Response: The department agrees and has replaced "maximum fee" with "amount"
in §§38.10(3)(H), 38.10(3)(I)(i), 38.10(3)(I)(iii), 38.10(3)(L)(i),
and 38.10(3)(L)(ii) as proposed. The department has also replaced "maximum
fee" with "amount" in §§38.10(3)(M)(ii), 38.10(3)(Q), 38.10(3)(R),
38.10(3)(S), 38.10(3)(T), 38.10(3)(U), 38.10(3)(V)(i), 38.10(3)(V)(ii), 38.10(3)(W),
38.10(3)(X), and 38.10(3)(Y) as redesignated.
Comment: Concerning §38.10(3)(H), several comments suggested changing
the description of expendable medical "supplies," because both "infusion supplies"
and "other expendable medical supplies" are now reimbursed the same way, and
it is no longer necessary to differentiate between them.
Response: The department agrees, and has changed the subparagraph heading
to "expendable medical supplies." Proposed §38.10(3)(H)(i) and §38.10(3)(H)(ii)
have been consolidated as §38.10(3)(H).
Comment: Concerning §38.10(3)(M), one comment recommended deleting
seating clinics as independent sources of claims reimbursable by the program
because seating clinics are now considered a part of the comprehensive service
provided in the context of obtaining and fitting specialty seating systems
as durable medical equipment.
Response: The department agrees and has deleted proposed §38.10(3)(M)
and relettered §§38.10(3)(N) through 38.10(3)(Z) as §§38.10(3)(M)
through 38.10(3)(Y).
Comment: Concerning proposed §38.10(3)(O), one comment recommended
replacing "child" with "client," because adult clients as well as children
may be eligible for insurance premium payment assistance.
Response: The department agrees and has amended the section accordingly.
Proposed §38.10(3)(O) has been relettered as §38.10(3)(N).
Comment: Concerning §38.12(a)(1), one comment stated that the section
should be amended to clarify that program eligibility or benefits may be denied,
modified, suspended, or terminated if the applicant/client supplies intentionally
erroneous information.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.12(a)(4), one comment stated that language
should be added to specify that failure to provide a receipt for family support
services payments made in advance of final purchase also constitutes cause
for denial/modification/suspension/termination.
Response: The department agrees and has amended the section accordingly.
Comment: Concerning §38.13, one comment recommended that providers
and clients should have the same length of time to request a fair hearing.
The comment noted that providers are allowed 30 days to respond, but clients
are given 20 days.
Response: The department agrees that providers and clients should have
the same length of time to request a fair hearing. The department's Fair Hearing
Procedures at 25 Texas Administrative Code, §§1.51-1.55 authorize
both providers and clients to request a fair hearing within 20 days of receipt
of the department's notice. The department has amended §38.13(a)(2) concerning
appeal procedures for providers to include the same provisions as are found
in §38.13(b)(2) concerning appeal procedures for clients.
Comment: Concerning §38.14(1)(D), one comment suggested that periodic
client and family surveys should be required, rather than allowed.
Response: The department agrees, and has amended the section accordingly.
The comments on the proposed rules received by the department during the
comment period were submitted by Advocacy, Inc. in conjunction with the Texas
Council for Developmental Disabilities, by staff from the Texas Department
of Mental Health and Mental Retardation, and by department staff from the
Program for Amplification for Children of Texas (PACT) and the Children with
Special Health Care Needs Division. The comments generally were in favor of
the rules; however, they raised questions, offered comments for clarification
purposes, and suggested clarifying language concerning specific provisions
in the rules.
The repeals are adopted under Health and Safety Code, §§35.003,
35.004, 35.005, 35.006, 35.009, and 12.001 that provide the board with the
authority to adopt rules for the performance of every duty imposed by law
on the board, the department, and the commissioner of health.
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 April 6, 2001.
TRD-200102012
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: July 1, 2001
Proposal publication date: October 27, 2000
For further information, please call: (512) 458-7236
Chapter 38.
CHILDREN WITH SPECIAL HEALTH CARE NEEDS SERVICES PROGRAM