40 TAC §108.293, §108.295
The Texas Health and Human Services Commission proposes a
modification to Title 40, Part 2, §108.293 and §108.295, the rules
of the Department of Assistive and Rehabilitative Services, Division for Early
Childhood Intervention Services, concerning the system of consumer fees entitled
Family Cost Share. The change is being proposed to streamline the fee requirements
for consumers.
Bill Wheeler, Chief Financial Officer, Department of Assistive and Rehabilitative
Services, estimates that for the first five-year period, the sections are
in effect, there will be a minimal fiscal impact to state or local government
which cannot be estimated.
Mr. Wheeler also estimates that for each year of the first five years the
sections are in effect the public benefit anticipated as a result of changing
the requirements will be that fewer families will withdraw their children
from needed ECI services in reaction to the fees. There should be no material
effect to small or micro businesses. There should be no material economic
cost to persons who are required to comply with the modifications. In accordance
with the Government Code §2001.022, the Health and Human Services Commission
has determined that the proposed rule changes will not effect a local economy.
Comments on the proposal may be submitted to Roger Darley, Deputy General
Counsel, Department of Assistive and Rehabilitative Services, 4800 North Lamar
Boulevard, Suite 300, Austin, Texas 78751.
The amendments are proposed under the Government Code, Chapter
531, §531.0055 (e), which provides the Executive Commissioner of the
Health and Human Services Commission with the authority to promulgate rules
for the operation and provision of health and human services by health and
human services agencies.
No other statute, article or code is affected by this proposal.
§108.293.Definitions.
The following words and terms, when used in this subchapter, have
the following meanings, unless the context clearly indicates otherwise:
(1)
Ability to Pay--The determination that the family is financially
able to contribute to the cost of services provided by ECI based on the family's
placement on the sliding fee scale. Placement on the scale at
an amount
greater than $0
[
$10 or above
] indicates an ability to pay.
(2)
[
Actual cost of services--The cost of ECI services
planned or delivered each month based on the rates established by the Council.
]
[
(3)
]
Adjusted Income--Gross family income, minus
allowable expenses [
as described in §621.182(d)(3)(A) of this title
(relating to Administration of Family Cost Share System),
]
. Adjusted
income is
used
, at the parent's request, instead of gross income
to determine a family's ability to pay and cost share.
(3)
[
(4)
] Allowable Expenses--
Unreimbursed out-of-pocket
[
Out-of-pocket
] expenses
, including medical and dental expenses,
that can be deducted from gross
income
, at the request of a parent,
to calculate adjusted income
for the purpose of determining a family's ability to pay and cost share.
[(5)
Allowable Medical and Dental Expenses--Expenses
may include health insurance premiums, deductibles and co-payments, dental
and vision expenses, hospital expenses, prescriptions or supplements ordered
by a physician, durable medical equipment, specialized clothing as required
for a medical condition, medical transportation costs, and other expenses
related to a medical condition or disability.]
(4)
[
(6)
] CHIP--The Children's Health
Insurance Program
.
(5)
[
(7)
] Family Cost Share [
or
Family Fee
]--The maximum amount of money the family must pay per month
based on the family's ability to pay, considering the family's income, family
size, [
allowable expenses and debts,
] and, when applicable, certain
other factors as described in the rules.
(6)
[
(8)
] Family--Group of individuals
in the same household whose information is used to determine family size and
income, including parents, adoptive parents, step-parents,
and other
children or adults with whom the child lives
[
child(ren), and/or
adult dependents
].
(7)
[
(9)
] Inability to pay--The determination
that the family is not able to financially contribute to the cost of services
provided by ECI. Placement on the sliding fee scale at $0 indicates an inability
to pay.
(8)
[
(10)
] Gross Income--All income
received by the family, from whatever source, which is considered to be income
by the Internal Revenue Service but before federal allowable deductions are
applied. [
Includes (but is not limited to) compensation for services,
including fees, commissions, fringe benefits, and similar items, income derived
from business, gains derived from dealings in property, interest, rents, royalties,
dividends, alimony and maintenance payments, annuities, income from life insurance
and endowment contracts, pensions, and other sources.
] A family's gross
income will be used to calculate the [
adjusted income and
] family
cost share
unless the parent requests an adjustment for allowable expenses
.
[(11)
Income verification--The process of
reviewing family documentation of income, either by review at intake or by
annual random sampling.]
[(12)
Rate--The rate established by the Council
used to calculate the actual cost of services on an IFSP. Rates will only
be used to calculate the cost of services which are subject to fees.]
[(13)
SSI--Supplemental Security Income]
(9)
[
(14)
] Sliding [
Fee
]
Scale--The scale of graduated family [
fees or
] cost share amounts
developed by DARS-ECI
[
adopted by the Council
] for use in
determining the family's ability to pay and the maximum cost share a family
receiving ECI services may be responsible for based on their income and family
size.
[(15)
TANF -- Temporary Aid for Needy Families
]
(10)
TriCare -- The Department of Defense
managed care program for active duty military, and retirees and their families.
§108.295.Administration of Family Cost Share System.
(a)
[
By January 1, 2004, each
]
Each
[
each
] ECI program must implement
the
[
a
] family
cost share system of sliding fees for all children enrolled in
ECI comprehensive
services in compliance with this subchapter and
DARS-ECI
[
Council
] policies
and the contract
.
(b)
Prior to collection of income information or imposition
of fees, parents must be fully informed of their right to receive certain
ECI services at no cost, their right to refuse any services they do not wish
to receive, their right to
receive a review of
[
have
]
their cost share or amounts due [
reviewed
] by an administrator
of the program
on request
, and
their right to information
about any
[
the
] method the program
may
[
will
] use to verify family income and allowable expenses.
(c)
Programs must ensure that the inability of a family to
pay for services will not result in the delay or denial of services to the
child or the family.
(d)
Determination of family income. The program will calculate
the family's ability to pay based on the family's [
gross
] income
[
and adjusted income
] in the following manner:
(1)
During the intake process and at each
six month and
annual
IFSP
review the program will collect information
from the family regarding the family's gross income [
as defined in §621.181
of this title (relating to Definitions). For children currently enrolled in
services for whom no annual review is scheduled prior to the effective date
of the rule, the program must conduct the determination by January 1, 2004
].
(2)
The program may require verification of income from
families based on written local policies
[
every family
] or
may rely on family self-report of income. [
For programs that rely on
family self-report, verification must be conducted on 10% of enrolled families,
selected randomly, by May 1st of each year to assure the program's use of
self-report is accurate and effective.
]
(A)
[
Sources of verification for income may include,
but are not limited to:
]
[(i)
paycheck stubs from the two most recent
pay periods;]
[(ii)
the most recently filed Internal Revenue
Service income tax form;]
[(iii)
written verification from an employer;]
[(iv)
other written documentation as determined
by the program.]
[
(B)
]
Except as provided in subparagraph (B)
of this paragraph, families
[
Families
] with proof of enrollment
in Medicaid [
(if they do not also have private insurance)
], CHIP,
food stamps, SSI or TANF cash benefits
for all children enrolled in ECI
are automatically assumed to have an inability to pay and need not
provide further
information for family cost share determination
[
documentation or verification of income
].
Children in the conservatorship
of the State including children in foster care are automatically determined
to have an inability to pay and need not provide further information for family
cost share determination.
(B)
[
(C)
] Families enrolled in Medicaid
who have private insurance and consent to having their private insurance billed
will be automatically assumed to have an inability to pay and need not provide
further
information for family cost share determination
[
documentation or verification of income
], even if their private insurance
denies all claims for coverage.
(C)
[
(D)
] Enrollment of a child in a
Medicaid waiver program is not deemed to be evidence of inability to pay if
the family is not eligible for other Medicaid benefits.
(D)
All children with auditory or visual
disabilities who are eligible for a free and appropriate public education
from birth under the Texas Education Code, Section 29.003(b)(1) are exempt
from the cost share system. A note of the exemption shall be included on the
Family Cost Share Agreement.
(3)
Once the annual
gross
family income has been
determined, the
parents may request that their
annual adjusted
family income [
must
] be calculated by deducting allowable expenses
from the gross income.
(A)
Allowable expenses are those expenses expected to occur
and/or be paid during the term of the IFSP and may include:
(i)
Medical or dental expenses not reimbursed by insurance
[
(excluding cosmetic or elective procedures)
] that the family incurred
and which are expected to continue during the current IFSP period. [
See definition of "allowable medical expenses" in §621.181 of this title.
]
(ii)
Payment toward outstanding medical or dental debt [
(excluding debt from cosmetic or elective procedures)
] .
(iii)
Medical and/or dental expenses and debt may include
those accrued by all family members.
(iv)
Childcare and respite expenses not reimbursed by other
sources, not to exceed $500 per family per month.
(v)
Costs and fees associated with the adoption of a child,
not to exceed $5000.
(vi)
Court-ordered child support payments for children who
are not counted as family members or dependents in calculating the adjusted
income and family cost share.
(B)
The program may require verification of expenses from
families based on written local policies
[
every family
] or
may rely on family self-report of expenses. [
For programs that rely on
family self-report, verification must be conducted on 10% of enrolled families,
selected randomly, by May 1st of each year to assure the program's use of
self-report is accurate and effective.
]
[(C)
Verification of expenses can be made
by one of the following methods:]
[(i)
bills, statements or receipts;]
[(ii)
IRS claims for medical expense deductions;]
[(iii)
doctor or hospital letters verifying balances and payments
for the time period in question;]
[(iv)
other written documentation as determined by the program.]
(4)
Copies of income and/or expense documents need not be
maintained by the program if an ECI employee reviews the documents and provides
a written statement of verification, including a notation of the source of
the documentation.
(5)
A family who refuses to provide
information for family
cost share determination
[
documentation of their income and/or
expenses
] when requested by the program will be assessed as able to
pay the highest cost share reflected on the sliding fee scale, [
or the
actual cost of services planned on the IFSP, whichever is less,
] until
such time as they submit
the required information
[
income
and/or expense documentation for verification
]. Services required to
be provided at no cost will not be denied or delayed if the family fails to
provide income information.
(6)
If
the program reviews the family's request for deductions
to gross family income due to allowable
[
verification of income
and/or
] expenses
and finds
[
indicates
] that adjustments
to the cost share are warranted, the [
revised
] cost share
must be revised
[
will take effect at the beginning of the next
calendar month. The program will determine whether past charges or past payments
will be adjusted
].
(7)
Income
[
With the exception of children
in the conservatorship of the state in subsection (e)(4) of this section,
adjusted income
] is calculated based on income [
and expenses
]
for all parents or guardians living in the same home with the child
as a family
. In situations where there is shared physical custody or
shared legal or financial responsibility for a child, the adjusted income(s)
of the parent(s) who financially supports the child will be considered unless
conditions warrant otherwise.
(e)
Determination of ability to pay and assignment of Family
Cost Share.
(1)
Using the sliding [
fee
] scale
developed
by DARS-ECI
[
adopted by the Council
], the program will determine
the family's assigned monthly cost share [
after calculating adjusted
income and family size. The family's monthly cost share will be the amount
reflected on the chart that corresponds with the family's income (minus expenses)
and family size, or the actual monthly cost of planned services on the IFSP,
based on the rates established by the Council, whichever is less.
] The
sliding fee scale can be obtained from
DARS-ECI
[
the Council
] at 4900 North Lamar Boulevard, Austin, Texas 78751-2399 or at
www.dars.state.tx.us/ecis
[
www.eci.state.tx.us
].
(2)
Families with
a family
[
an adjusted
]
income at or below
250 percent
[
200%
] of the Federal
Poverty Level [
(FPL)
] will have a family cost share of $0
and are determined to have an inability to pay
[
if all available
third party resources deny coverage or reimbursement for ECI services, or
the family is not eligible for any other financial assistance
].
(3)
Families enrolled in Medicaid who have private insurance
and refuse to allow ECI to bill their private insurance, thereby preventing
submission of Medicaid claims, will be assigned
a monthly cost share
of $10
[
the lowest cost share on the scale ($10)
].
[(4)
When a child is living in a foster care
placement or is in the conservatorship of the state, the family will automatically
be assigned a cost share of $0.]
(f)
[
Assign costs to the
] IFSP services.
(1)
[
Programs will use the rates established by the Council
to assign a cost to each planned service on a child's IFSP. The rates can
be obtained from the Council at 4900 North Lamar Boulevard, Austin, Texas
78751-2399 or at www.eci.state.tx.us.
]
[
(2)
]
Those services that must be provided at no
cost to the family are:
(A)
Child find;
(B)
Evaluation and Assessment;
(C)
Development of the Individualized Family Service Plan;
(D)
All services to children with auditory or visual disabilities
eligible for a free and appropriate public education from birth under the
Texas Education Code, §29.003 (b)(1);
(E)
Service coordination;
(F)
Translation and interpreter services; and
(G)
Administrative and coordination activities related to
the implementation of procedural safeguards and other components of the statewide
system of early intervention services.
(2)
[
(3)
]
The monthly Family Cost
Share is the maximum amount a family
[
A fee
] can be charged
for all other services provided
by ECI
as part of an IFSP.
(3)
[
(4)
] The state respite program
funded with state discretionary funds is not subject to the cost share system.
[(5)
The program must inform the family of
the actual cost of planned services on the IFSP based on the rates established
by the Council, regardless of the family's method of payment.]
(4)
[
(6)
] A family will be responsible
for the assigned monthly cost share
unless no services, other than those
listed in paragraph (1) of this subsection, were delivered in the month
[
or the actual monthly cost of services delivered, whichever is less
]
.
(5)
[
(7)
] The maximum monthly cost share
for which the family will be responsible will be indicated on a Family Cost
Share Agreement form that the family must sign.
(6)
[
(8)
] For a family with an ability
to pay, services included on the IFSP which are subject to cost share shall
not be provided until the family signs the Family Cost Share Agreement.
(7)
[
(9)
] Services included on the IFSP
which are not subject to cost share shall begin immediately after the IFSP
is developed.
(g)
Review of family cost share.
(1)
The family's ability to pay and cost share amount will
be reviewed at the
six month review and
annual IFSP meeting, [
any time the amount of services on the IFSP subject to cost share is changed,
any time the family's circumstances change or appear to have changed,
]
or at any time the family requests a review, including immediately following
initial assessment of ability to pay. [
Families must inform the program
if they experience a significant change in their financial circumstances that
may impact their assigned cost share.
]
Programs may provide for
a streamline review without completing a new Family Cost Share Agreement when
there has been no change in family income or size since the previous review.
(2)
ECI programs must develop a local process for a family
to request reconsideration or adjustment of their assigned family cost share
and/or to request a waiver of their cost share obligation, amounts currently
due or overdue
based on extraordinary circumstances
, including
amounts due based on denial of claims by a third-party payor as per subsection
(h)(1)(A) of this section.
Adjustments for allowable expenses should
be made prior to the consideration of extraordinary expenses.
Staff
may initiate the review process when there is concern that the family of a
child eligible for services will withdraw from services or decline to enroll
in services if the cost share is not temporarily waived, and that the child
may suffer harm as a result.
(A)
The review should be conducted by the program director
or designated administrator.
(B)
Examples of circumstances that could justify a reconsideration
or change of a family's assigned cost share, or that could justify a temporary
waiver from their monthly cost share obligation or amounts currently due or
overdue, could include but are not limited to:
(i)
increase or decrease in income, including loss of job
or temporary unpaid leave from employment;
(ii)
short-term medical expenses not deducted during determination
of adjusted income;
(iii)
extraordinary child care or respite expenses
not
deducted during the determination of adjusted income
;
(iv)
additional dependants or change in family size;
(v)
catastrophic loss such as fire, flood or tornado;
(vi)
short-term financial hardship such as major repair to
the family home or car; or
(vii)
other extenuating circumstances or financial obligations
which the family feels are not adequately considered in the assessment of
adjusted income, assigned monthly cost share, or their ability to meet their
cost share in any particular month(s).
(C)
Families may be asked to submit verification of such circumstances.
Refusal to do so may result in denial of the cost share adjustment.
(3)
If the program determines that adjustments to the cost
share are warranted, the [
revised
] cost share
shall be revised
[
will take effect at the beginning of the next month
] .
The Family Cost Share Agreement must be amended for any revision of the family
cost share, and family signature must be obtained for the revised Family Cost
Share Agreement.
(4)
Families must be informed of the program's process for
reviewing their family cost share amount before they are asked to sign the
Family Cost Share Agreement.
(5)
The family's last signed IFSP and Family Cost Share Agreement
will remain in effect during any review process. For families without a signed
Cost Share Agreement, the services included on the IFSP which are not subject
to cost share shall begin
or continue
during any period of review.
(h)
Children with Insurance.
[
Billing for
services.
]
(1)
Third-party payors.
(A)
With parent consent, programs must bill
Medicaid,
CHIP, TriCare and
private insurance or other third-party payors for
covered
services delivered according to the IFSP.
To allow the
local program to establish insurance billing, in the initial six months of
service, family cost share shall be set at $0 as long as the child maintains
insurance coverage and the parent continues to provide the program with consent
to bill the insurance for ECI services. After the initial six months, third-party
[
Third-party
] reimbursement of any IFSP service(s) will
satisfy the family's cost share obligation for the month the service(s) was
delivered. If the third-party payor completely denies coverage for IFSP services
subject to fees, the family will be responsible for the assigned cost share
[
amount or the actual cost of services delivered, whichever is less
].
(B)
Any applicable insurance co-payments for services
may
[
will
] be paid with ECI federal funds.
(2)
Billing families for services.
(A)
Programs must bill the family for the assigned cost share
[
or the actual cost of the services delivered, whichever is less
].
(B)
The assigned family cost share is the maximum amount to
be billed to the family regardless of the number of children in the family
receiving services from ECI.
(3)
Payment and Non-Payment of Fees.
(A)
Families will have 30 days from the billing date to pay
their family cost share [
or consent to have a claim submitted for payment
from private insurance or other third-party payors.
] All unpaid balances
due from the family after 30 days will be considered delinquent unless the
delay in payment is due to a delay in third-party reimbursement or notice
of denial of a claim from a private or public third-party payor.
(B)
Services subject to cost share will be suspended after
90 days for non-payment of family cost share. For families consenting to payment
by third-party payors, the 90-day time period will begin when notice is first
received that the third-party payor has denied all claims for reimbursement
and all appeals are exhausted, if applicable. Partial reimbursement by a third-party
payor will satisfy the family's cost share obligation for the month, as per
paragraph (1)(A) of this subsection.
(C)
Families must be notified that failure to maintain their
cost share account in good standing will, after 90 days, result in the suspension
of IFSP services that are subject to
family cost share
[
fees
], and that if services are later reinstated, the program cannot guarantee
that they will be reinstated on the same schedule or with the same individual
service provider as prior to suspension.
(D)
Service Coordination and other services not subject to
family cost share
[
fees
] must be continued during any period
of suspension, except that respite vouchers may be denied for payment during
a period of suspension.
(E)
A notation must be made on the Family Cost Share Agreement
that services subject to
family cost share
[
fees
] have
been suspended due to non-payment. If a family transfers between Texas ECI
programs, the Family Cost Share Agreement will be transferred to the receiving
ECI program along with the IFSP.
(F)
Services that have been suspended will be reinstated when
the family's account is paid in full
or the family negotiates an acceptable
payment plan with the local program
. If more than six months have transpired
since suspension, the IFSP team must reassess the appropriateness of the IFSP
before reinstating services. The IFSP and the Family Cost Share Agreement
should reflect the date of the reinstatement of services.
(G)
Programs must have a
written local policy
[
process
] for collecting delinquent
family cost share
[
fees
] . Documentation must be kept of reasonable attempts to collect
on unpaid balances. Reasonable attempts include multiple attempts at written
notification, phone notification and/or e-mail.
[
(H)
The family cost share review policy established
according to subsection (g) of this section must include a provision allowing
the
]
The
Program Director or Administrator
may
[
to
] modify a family's payment plan or cost share if circumstances warrant.
(i)
Program fiscal and record-keeping policies.
(1)
[
All revenues generated by family cost sharing will
be collected by the program.
]
[
(A)
]
Revenue received from the family cost share
may only be used for early intervention services within the ECI program and
may not supplant any other local fund sources.
[
(B)
]
Fees collected must be reported to the ECI
state office as program income.
(2)
The Family Cost Share Agreement and
any
financial
records related to [
verification of
] income, expenses, and payment
history shall be kept separate from the child's other educational records,
and should not be forwarded to a school district or other non-ECI service
provider(s) at any time unless requested by the family. All financial records
must be maintained in a manner consistent with Family Educational Rights and
Privacy Act.
(3)
The Family Cost Share Agreement and financial records
must be transferred to another ECI program in the state if the child and family
transfer to another ECI program.
(4)
The Family Cost Share Agreement and financial records
are subject to subpoena, if applicable.
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 8, 2005.
TRD-200502764
Sylvia F. Hardman
General Counsel
Department of Assistive and Rehabilitative Services
Earliest possible date of adoption: August 21, 2005
For further information, please call: (512) 424-4050