Part 1.
DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 9.
MENTAL RETARDATION SERVICES--MEDICAID STATE OPERATING AGENCY RESONSIBILITIES
Subchapter E. ICF/MR PROGRAMS--CONTRACTING
6.
PERSONAL FUNDS
40 TAC §9.254
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §9.254, concerning items and services provided by the program provider,
in Chapter 9, Mental Retardation Services--Medicaid State Operating Agency
Responsibilities.
Background and Purpose
The purpose of the amendment is to revise the list of items and services
that are in the reimbursement rate for intermediate care facilities for persons
with mental retardation and related conditions (ICFs/MR) to exclude prescribed
medication that is in a category covered by Medicare Part D for an individual
who is eligible for Medicare Part D.
DADS is proposing the amendment in conjunction with HHSC's proposed amendment
to 1 TAC §355.103, published elsewhere in this issue of the
Texas Register
. HHSC is proposing its amendment in response to new
federal requirements imposed by the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 (MMA). Beginning January 1, 2006, individuals,
including persons enrolled in the ICF/MR Program, who are eligible for both
Medicare and Medicaid (dually eligible individuals) must obtain prescription
drugs through a Medicare Part D prescription drug plan, rather than through
Medicaid.
Under the MMA, Medicaid funds must not be used to pay for a prescription
drug for a person who is eligible for Medicare Part D benefits if that drug
is in a category of drugs that is covered by Medicare Part D. Therefore, in
its proposed amendment to 1 TAC §355.103, HHSC will disallow an ICF/MR
Program provider from including such a drug on its cost report.
Section-by-Section Summary
To be consistent with the proposed amendment to 1 TAC §355.103, DADS
is amending the list of items and services in §9.254 that are in the
ICF/MR Program reimbursement rate to exclude prescribed medication in a category
covered by Medicare Part D for an individual who is eligible for Medicare
Part D.
The amendment also corrects rule cross-references that were rendered incorrect
upon the transfer of Texas Department of Mental Health and Mental Retardation
rules from Title 25 to Title 40 of the Texas Administrative Code.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses, or on businesses of any size, as a result of enforcing
or administering the amendment, because the amendment changes the list of
items and services in the ICF/MR reimbursement rate but does not change the
reimbursement rate.
Cost to Persons and Effect on Local Economies
DADS does not anticipate that there will be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Public Benefit
Barry Waller, DADS Assistant Commissioner for Provider Services, has determined
that, for each year of the first five years the amendment is in effect, the
public benefit expected as a result of enforcing the amendment is that DADS
will be in compliance with the MMA and that DADS' rule concerning the items
and services that are in the ICF/MR reimbursement rate will be consistent
with HHSC's cost reporting rule for ICF/MR Program providers.
Takings Impact Assessment
DADS has determined that this proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Texas
Government Code, §2007.043.
Public Comment
Questions about the content of this proposal may be directed to Owen Wheeler
at (512) 438-4385 in DADS' Provider Services Division, Institutional Services
Section. Written comments on the proposal may be submitted to Texas Register
Liaison, Legal Services-028, Department of Aging and Disability Services W-615,
P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in
the
Texas Register
.
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; and Texas Government Code, §531.021, which provides HHSC with
the authority to administer federal funds and plan and direct the Medicaid
program in each agency that operates a portion of the Medicaid program.
The amendment affects Texas Government Code, §531.0055 and §531.021,
and Texas Human Resources Code, §161.021.
§9.254.Items and Services Provided by the Program Provider.
A program provider must not charge an individual or require an individual
to expend personal funds for items and services that are the program provider's
responsibility to provide, except as authorized by
§9.255(a)(1)
[
(1)
(No change.)
(2)
prescribed and over-the-counter medication
:
[
(A)
for an individual who is not eligible
for Medicare Part D benefits; or
(B)
for an individual who is eligible for
Medicare Part D benefits if the medication is prescribed and is in a category
that is not covered by Medicare Part D;
(3) - (4)
(No change.)
(5)
eye exams and eyeglasses, except:
(A)
the difference between the Medicaid payment and the actual
cost of the eyeglasses as authorized by
§9.255(a)(2)
[
(B)
as authorized by
§9.255(a)(6)
[
(6) - (16)
(No change.)
(17)
transportation costs to and from:
(A)
(No change.)
(B)
an activity that is part of the program provider's recreational
program
;
[
(18) - (20)
(No change.)
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 29, 2005.
TRD-200503104
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 438-3734
Subchapter AA. VENDOR PAYMENT
40 TAC §19.2601
The Health and Human Services Commission (HHSC) proposes,
on behalf of the Department of Aging and Disability Services (DADS), an amendment
to §19.2601, concerning vendor payments (items and services included),
in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.
Background and Purpose
The purpose of the amendment is to revise the list of items and services
that are in the daily payment rate for nursing facilities to exclude prescription
drugs covered by Medicare Part D for an individual who is eligible for Medicare
Part D.
DADS is proposing the amendment in conjunction with HHSC's proposed amendment
to 1 TAC §355.103, published elsewhere in this issue of the
Texas Register
. HHSC is proposing its amendment in response to new
federal requirements imposed by the Medicare Prescription Drug, Improvement,
and Modernization Act of 2003 (MMA). Beginning January 1, 2006, individuals,
including residents of nursing facilities, who are eligible for both Medicare
and Medicaid (dually eligible individuals) must obtain prescription drugs
through a Medicare Part D prescription drug plan, rather than through Medicaid.
Under the MMA, Medicaid funds must not be used to pay for a prescription
drug for a person who is eligible for Medicare Part D benefits if that drug
is in a category of drugs that is covered by Medicare Part D. Therefore, in
its proposed amendment to 1 TAC §355.103, HHSC will disallow a nursing
facility from including such a drug on its cost report.
Section-by-Section Summary
To be consistent with the proposed amendment to 1 TAC §355.103, DADS
is amending the list of items and services in §19.2601(b) that are in
the nursing facility daily payment rate to exclude legend (i.e., prescription)
drugs in a category covered by Medicare Part D for an individual who is eligible
for Medicare Part D.
The amendment also corrects an obsolete cross-reference and updates references
from the Texas Department of Human Services (DHS) to DADS, which is the new
name of the agency responsible for rules governing licensure and certification
requirements for nursing facilities.
Fiscal Note
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the
first five years the proposed amendment is in effect, enforcing or administering
the amendment does not have foreseeable implications relating to costs or
revenues of state or local governments.
Small Business and Micro-business Impact Analysis
DADS has determined that there is no adverse economic effect on small businesses
or micro-businesses, or on businesses of any size, as a result of enforcing
or administering the amendment, because the amendment changes the list of
items and services in the nursing facility daily payment rate but does not
change the payment rate.
Cost to Persons and Effect on Local Economies
DADS does not anticipate that there will be an economic cost to persons
who are required to comply with the amendment. The amendment will not affect
a local economy.
Public Benefit
Veronda Durden, DADS Assistant Commissioner for Regulatory Services, has
determined that, for each year of the first five years the amendment is in
effect, the public benefit expected as a result of enforcing the amendment
is that DADS will be in compliance with the MMA and that DADS' rule concerning
the items and services that are in the nursing facility daily payment rate
will be consistent with HHSC's cost reporting rule for nursing facilities.
Takings Impact Assessment
DADS has determined that this proposal does not restrict or limit an owner's
right to his or her property that would otherwise exist in the absence of
government action and, therefore, does not constitute a taking under Texas
Government Code, §2007.043.
Public Comment
Questions about the content of this proposal may be directed to Hannah
Ndika at (512) 438-2133 in DADS' Regulatory Services Policy Development and
Support Unit. Written comments on the proposal may be submitted to Texas Register
Liaison, Legal Services-028, Department of Aging and Disability Services W-615,
P.O. Box 149030, Austin, Texas 78714-9030, within 30 days of publication in
the
Texas Register
.
Statutory Authority
The amendment is proposed under Texas Government Code, §531.0055,
which provides that the HHSC executive commissioner shall adopt rules for
the operation and provision of services by the health and human services agencies,
including DADS; Texas Human Resources Code, §161.021, which provides
that the Aging and Disability Services Council shall study and make recommendations
to the HHSC executive commissioner and the DADS commissioner regarding rules
governing the delivery of services to persons who are served or regulated
by DADS; Texas Government Code, §531.021, which provides HHSC with the
authority to administer federal funds and plan and direct the Medicaid program
in each agency that operates a portion of the Medicaid program; and Health
and Safety Code, Chapter 242, which authorizes DADS to license and regulate
convalescent and nursing homes and related institutions.
The amendment affects Texas Government Code, §531.0055 and §531.021;
Texas Human Resources Code, §161.021; and Texas Health and Safety Code, §§242.001-242.852.
§19.2601.Vendor Payment (Items and Services Included).
(a)
(No change.)
(b)
The daily rate is compatible with reasonable charges consistent
with efficiency, economy, and quality of total care. The facility must ensure
that care meets the health needs and promotes the maximum well-being of recipients.
The following items and services are included in the payment rate made to
the facility by the Department of Aging and Disability Services (DADS) and,
therefore, the facility must provide
[
(1) - (4)
(No change.)
(5)
for a recipient who is not eligible for Medicare
Part D benefits,
legend drugs
that are
not covered by the
Medicaid Vendor Drug
Program
[
(6)
for a recipient who is eligible for Medicare
Part D benefits, legend drugs in a category that is not covered by Medicare
Part D and that are not covered by the Medicaid Vendor Drug Program;
(7)
[
(8)
[
(A)
Facilities are required to maintain, in good repair, equipment
necessary to meet the needs of the recipient.
(B)
If a recipient desires equipment for exclusive use, its
purchase is the responsibility of the recipient:
(i)
Only the recipient can use the equipment, and it must
be identified as the personal property of the recipient.
(ii)
Upon discharge from the facility, the recipient retains
the equipment he purchased. If the recipient dies, the purchased equipment
must be transferred to the estate. If it is donated or sold to the facility
by the recipient or the estate, the transaction must be documented. (See §19.416
of this title (relating to Personal Property)).
(C)
If a recipient owns a piece of equipment that is medically
necessary, the facility must maintain and repair the equipment.
(D)
When Part B Medicare benefits are accessed to pay for
equipment and accessories, the recipient or family may not be charged by the
facility or supply company for any portion of these items;
(9)
[
(10)
[
(A)
Before purchasing or charging for the preferred item(s),
the facility must secure written authorization from the recipient or family
indicating his desired preference, the date, and signature of the person requesting
the preferred item(s). The signature may not be that of an employee of the
facility.
(B)
If the recipient's personal funds are used to purchase
an item(s), the item(s) is for his sole use.
(C)
When the facility purchases personal hygiene item(s) with
the recipient's personal funds, the facility must ensure that the item(s)
is in an individual container or package that is labeled with the recipient's
name. The facility is not held responsible for labeling personal hygiene items
brought into the facility and not reported to the management.
(c)
(No change.)
(d)
If a resident has requested and freely chosen to participate
in an activity, or to have an item or service provided that is not included,
or is different than that provided, in the daily vendor rate, then the resident
may be charged for the activity, item, or service.
(1)
When documentation is present that supports the above
criteria, and that is required by
§19.405(d)(5)
[
(2)
(No change.)
(e)
Except as described in paragraphs (1) and (2) of this
subsection,
DADS
[
(1)
If entrance and departure are on the same day, and the
recipient does not enter another Title XIX facility on that day,
DADS
[
(2)
If departure is because of the recipient's death and the
deceased recipient is not sent to another Title XIX facility for legal procedures
necessary upon the death of the recipient,
DADS
[
(f)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 29, 2005.
TRD-200503105
Phoebe Knauer
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 438-3734
Chapter 702.
GENERAL ADMINISTRATION
Subchapter E. MEMORANDUM OF UNDERSTANDING WITH OTHER STATE AGENCIES
40 TAC §702.413
(Editor's note: The text of the following section proposed for
repeal will not be published. The section may be examined in the offices of
the Department of Family and Protective Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Health and Human Services Commission proposes,
on behalf of the Department of Family and Protective Services (DFPS), the
repeal of §702.413, concerning memorandum of understanding (MOU) concerning
the Communities In Schools program, in its General Administration chapter.
The Communities In Schools (CIS) program was transferred from DFPS to the
Texas Education Agency (TEA) by the 78th Legislature. TEA is in the process
of adopting new Communities In Schools rules. The purpose of the repeal is
to delete the MOU, which was between DFPS and TEA and is now obsolete.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the
first five-year period the proposed section will be in effect there will be
no fiscal implications for state or local government as a result of enforcing
or administering the section.
Ms. Brown also has determined that for each year of the first five years
the section is in effect the public benefit anticipated as a result of enforcing
the sections will be that the obsolete rule will be deleted. There will be
no effect on large, small, or micro-businesses because the proposed change
does not impose new requirements on any business and does not require the
purchase of any new equipment or any increased staff time in order to comply.
There is no anticipated economic cost to persons who are required to comply
with the proposed section.
Questions about the content of the proposal may be directed to David Whiteside
at (512) 438-3755 in DFPS's Purchased Client Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-324,
Department of Family and Protective Services E-611, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
HHSC has determined that the proposed repeal does not restrict or limit
an owner's right to his or her property that would otherwise exist in the
absence of government action and, therefore, does not constitute a taking
under §2007.043, Government Code.
The repeal is proposed under Government Code §531.0055,
which provides that the Health and Human Services Executive Commissioner shall
adopt rules for the operation and provision of services by the health and
human services agencies, including the Department of Family and Protective
Services; Human Resources Code (HRC) §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the executive commissioner and the commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC, §40.029, which authorizes FPS to propose and adopt rules to
facilitate implementation of Department programs.
The repeal implements the Education Code, Subchapter E, Chapter 33.
§702.413.Memorandum of Understanding (MOU) Concerning the Communities In Schools Program.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503062
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 438-3437
Subchapter E. COMMUNITIES IN SCHOOLS
40 TAC §§704.401, 704.403, 704.405, 704.407, 704.409, 704.411
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of Family and Protective Services or in the Texas Register
office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Health and Human Services Commission proposes,
on behalf of the Department of Family and Protective Services (DFPS), the
repeal of §§704.401, 704.403, 704.405, 704.407, 704.409, and 704.411,
in its Prevention and Early Intervention Services chapter. The Communities
In Schools (CIS) program was transferred from DFPS to the Texas Education
Agency (TEA) by the 78th Legislature. TEA is in the process of adopting new
Communities In Schools rules. The purpose of the repeal is to delete the CIS
rules from the DFPS agency rules.
Cindy Brown, Chief Financial Officer of DFPS, has determined that for the
first five-year period the proposed sections will be in effect there will
be no fiscal implications for state or local government as a result of enforcing
or administering the sections.
Ms. Brown also has determined that for each year of the first five years
the sections are in effect the public benefit anticipated as a result of enforcing
the sections will be that CIS rules will be found at the agency where the
program resides, TEA. There will be no effect on large, small, or micro-businesses
because the proposed change does not impose new requirements on any business
and does not require the purchase of any new equipment or any increased staff
time in order to comply. There is no anticipated economic cost to persons
who are required to comply with the proposed sections.
Questions about the content of the proposal may be directed to David Whiteside
at (512) 438-3755 in DFPS's Purchased Client Services Division. Written comments
on the proposal may be submitted to Texas Register Liaison, Legal Services-324,
Department of Family and Protective Services E-611, P.O. Box 149030, Austin,
Texas 78714-9030, within 30 days of publication in the
Texas Register
.
HHSC has determined that the proposed repeals do not restrict or limit
an owner's right to his or her property that would otherwise exist in the
absence of government action and, therefore, do not constitute a taking under §2007.043,
Government Code.
The repeals are proposed under Government Code §531.0055,
which provides that the Health and Human Services Executive Commissioner shall
adopt rules for the operation and provision of services by the health and
human services agencies, including the Department of Family and Protective
Services; Human Resources Code (HRC) §40.021, which provides that the
Family and Protective Services Council shall study and make recommendations
to the executive commissioner and the commissioner regarding rules governing
the delivery of services to persons who are served or regulated by the department;
and HRC, §40.029, which authorizes FPS to propose and adopt rules to
facilitate implementation of Department programs.
The repeals implement the Education Code, Subchapter E, Chapter 33.
§704.401.How are the key terms in this subchapter defined?
§704.403.What are the roles and responsibilities of PRS and Texas Education Agency (TEA) with respect to the CIS program?
§704.405.Can more than one local CIS program serve the same independent school district?
§704.407.What guidelines must CIS providers adhere to in order to contract with PRS for CIS services?
§704.409.How are appropriated state and federal funds allocated to CIS programs?
§704.411.How will additional or other funds be made available to CIS programs?
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on July 25, 2005.
TRD-200503063
Gerry Williams
General Counsel
Department of Family and Protective Services
Earliest possible date of adoption: September 11, 2005
For further information, please call: (512) 438-3437
Subchapter F. BACKGROUND CHECKS
§419.255(a)(1)
] of this title (relating to Items and
Services Purchased with Personal Funds), because they are included in the
ICF/MR Program reimbursement rate or are covered by other Medicaid programs.
These items and services include:
;
]
§419.255(a)(2)
] of this title [
(relating to Items and Services
Purchased with Personal Funds)
]; or
§419.255(a)(6)
] of this title
;
[
(relating to Items and Services Purchased
with Personal Funds).
]
.
]
Chapter 19.
NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
It includes
]:
program
];
(6)
] regular laundry services,
except dry cleaning;
(7)
] medical accessories, such
as canulas, tubes, masks, catheters, ostomy bags and supplies, IV fluids,
IV equipment, and equipment that can be used by more than one person, such
as wheelchairs, adjustable chairs, crutches, canes, mattresses, hospital-type
beds, enteral pumps, trapeze bars, walkers, and oxygen equipment, such as
tanks, concentrators, tubing, masks, valves, and regulators.
(8)
] medical supplies, including,
but not limited to tongue depressors, swabs, bandaids, cotton balls, and alcohol;
and
(9)
] basic personal hygiene items
and services to meet the needs of the residents (See §19.405(h) of this
title (relating to Additional Requirements for Trust Funds in Medicaid-Certified
Facilities) for a list of such items and services). The specific type or brand
of personal hygiene items used by the facility must be disclosed to the recipient;
then, if a recipient prefers to use a specific type or brand of a personal
hygiene item(s) rather than the item(s) furnished by the facility, he may
use his personal funds to purchase the item(s).
§19.404(g)(5)
] of this title [
(relating to Protection of Resident Funds)
],
the amount may be paid from the resident's trust fund.
the Texas Department of Human Services (DHS)
] makes vendor payments to Nursing Facilities for the day a recipient
enters a nursing facility, but not for the day a recipient leaves a facility.
The two exceptions are as follows.
DHS
] pays for the entire day.
DHS
]
pays for the entire day.
Part 19.
DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES
Chapter 704.
PREVENTION AND EARLY INTERVENTION SERVICES
Chapter 745.
LICENSING