TITLE 25.HEALTH SERVICES

Part 1. DEPARTMENT OF STATE HEALTH SERVICES

Chapter 1. TEXAS BOARD OF HEALTH

The Executive Commissioner of the Health and Human Services Commission on behalf of the Department of State Health Services (department) adopts the repeal of §§1.1 and 1.3 - 1.8, concerning procedures and policies of the Texas Board of Health (board) without changes to the proposed text that was published in the March 3, 2006, issue of the Texas Register (31 TexReg 1408), and the sections will not be published.

BACKGROUND AND PURPOSE

The repeal is necessary to comply with Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished the Texas Department of Health and the board, effective September 1, 2004. Repeal of these sections is necessary to align the department's rules more accurately with House Bill 2292.

The rules and this Proposed Preamble were previously published as proposed in the Texas Register but expired on November 10, 2005 before final adoption and publication occurred. The department reproposed the repeals for publication, and the Executive Commissioner of the Health and Human Services Commission approved the reproposal on February 14, 2006. The reproposal was published in the March 3, 2006, issue of the Texas Register for a 30-day comment period.

SECTION-BY-SECTION SUMMARY

The repeal of §§1.1 and 1.3 - 1.8 is necessary to align the department's rules with the requirements of House Bill 2292 now that the board no longer exists. As part of the repeal of those sections, §1.7(b)(4), concerning the commissioner of health's (now the commissioner of the department, pursuant to House Bill 2292) authority to execute contracts and delegate execution of contracts of greater than $1 million, is unnecessary as a rule because contract execution authority is now under the department's policies and is not required to be stated in a rule.

COMMENTS

The department, on behalf of the Health and Human Services Commission, did not receive any comments regarding the proposed rules during the comment period.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Cathy Campbell, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The adopted repeals are authorized by Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished the Texas Department of Health and its governing board, the Texas Board of Health, effective September 1, 2004; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies reasonably necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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 May 8, 2006.

TRD-200602523

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 28, 2006

Proposal publication date: March 3, 2006

For further information, please call: (512) 458-7111 x6972

Chapter 38. CHILDREN WITH SPECIAL HEALTH CARE NEEDS SERVICES PROGRAM

25 TAC §§38.1 - 38.14, 38.16

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), adopts amendments to §§38.1 - 38.14 and 38.16, concerning the Children with Special Health Care Needs Services Program (CSHCN Services Program). The amendments to §§38.2, 38.4, 38.6, and 38.16 are adopted with changes to the proposed text as published in the January 6, 2006, issue of the Texas Register (31 TexReg 55). Sections §§38.1, 38.3, 38.5, and 38.7 - 38.14 are adopted without changes and, therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 38.1-38.14 and 38.16 have been reviewed, and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed.

The amendments are made in compliance with the Government Code, §2001.039, and they clarify language, correct factual errors, make changes to grammar or syntax, and improve consistency in the rules.

SECTION-BY-SECTION SUMMARY

For uniformity and simplicity, the name of the Children with Special Health Care Needs Services Program has been changed to "CSHCN Services Program" in §§38.1 - 38.14 and 38.16. References to the department's name have been changed from "Texas Department of Health" to "Department of State Health Services," and references to the Board of Health have been deleted. Since the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) and the Civilian Health and Medical Program of the Veterans Administration (CHAMPVA) are no longer identified by these acronyms, these programs will be identified only as "United States Department of Defense or Department of Veterans Affairs benefit plans."

The identification of the CSHCN Services Program Division Director has been changed to "the manager of the department unit having responsibility for oversight of the CSHCN Services Program." The professional designation for "master social worker-advanced clinical practitioner" has been corrected to the current nomenclature, "licensed clinical social worker (LCSW)." The CSHCN Services Program mailing address has been corrected. Minor punctuation, grammar, syntax, and/or spelling changes have also been made.

In addition to the name and other changes, amendments to §38.2 include deletion of the definitions for "advisory committee" and "board" because those entities no longer exist. The definition for "newborn screening" has been deleted, because the term is no longer used in the chapter. A definition for "commission" has been added to identify the Texas Health and Human Services Commission. The definitions have been renumbered to reflect these additions and deletions.

The definition for "applicant" has been amended to be more comprehensive by including individuals who are seeking to establish initial or continuing eligibility as well as to re-establish lapsed eligibility.

The definition for "effective date of eligibility for applicants with spenddown" at §38.2(23)(D) has been amended to clarify that medical bills qualifying to meet "spenddown" requirements must have dates of service 12 months prior to the date of receipt of the application or within 6 months after the date eligibility was previously denied. This change complies with a statutory amendment shortening the financial eligibility period from 12 to 6 months.

The definition of "medical home" has been amended to update the definition and incorporate elements recommended by the American Academy of Pediatrics and the Medical Home Work Group of the CSHCN Services Program. In the definition of "natural home" at §38.2(34), "the eligible person" has been changed to "a person." Eligibility for the CSHCN Services Program has no bearing on this definition.

The definition of "other benefit" at §38.2(36) has been amended to clarify that the intended costs of services are those "included in the scope of coverage of" the CSHCN Services Program. The phrase "but not limited to" has been incorporated in the introductory sentence before the listing of some types of "other benefits." At new §38.2(34)(B), home, auto, and other liability insurance have been added as "other benefits" and subsequent subparagraphs have been renumbered.

The definition for "specialty center" has been amended to clarify that the centers are designated for use "by CSHCN Services Program clients" as part of comprehensive services for a specific medical condition.

In addition to name and other changes identified previously, §38.3 has been amended to change the title of the section from "Eligibility for CSHCN Program Services" to "Eligibility for Services." Section 38.3(a)(1) has been amended to clarify the requirements for a dentist or physician who certifies that a person meets the medical criteria for certification as a "child with special health care needs." The medical criteria certification must be made at least annually and must be based upon a physical examination conducted within the 12 months immediately preceding the date of certification. The certifying physician or dentist must provide not only the diagnosis code, but also the descriptor, and the section has been amended to clarify that the requirement applies to each of the person's medical conditions. These changes are consistent with current CSHCN Services Program instructions for completion of the form that supplies this documentation.

Section 38.3(a)(1) also has been amended to authorize the CSHCN Services Program Medical Director to accept written documentation of medical certification criteria from a physician or dentist licensed to practice in a state or jurisdiction of the United States other than Texas. The individual for whom the subparagraph describes medical criteria eligibility has been changed from "child/applicant" or "applicant" to "person" throughout. Section 38.3(a)(1) also has been amended to clarify that the CSHCN Services Program may not reimburse physicians or dentists for providing written documentation of medical criteria certification, and to reaffirm that only a physician or dentist who is a CSHCN Services Program participating provider may be reimbursed for services.

At §38.3(a)(2), in accordance with requirements of the 79th Texas Legislature in Regular Session (2005), Appropriations Act, DSHS Rider 63, paragraph d, compliance with financial eligibility criteria must be determined "every six months, or as directed by statutory requirements" rather than "annually." Section 38.3(2) also has been amended to delete explanations concerning net income and insurance premium payments in connection with the Children's Health Insurance Program, as they are now both inaccurate and superfluous.

Section 38.3(a)(2)(A) has been amended to make provisions concerning documentation of a family's income and relating to the length of time that financial criteria must be determined consistent with the amendments to §38.3(a)(2).

Section 38.3(a)(2)(B)(i) has been amended to clarify that the subparagraph applies to "an ongoing" client "currently not eligible for Medicaid," to delete "medical condition" as a factor relevant to whether a client must apply to Medicaid, and to replace the reference to "Medicaid, specifically including the Medically Needy program" with "any applicable Medicaid programs."

Section 38.3(a)(2)(B)(ii) has been amended to clarify that its provisions apply to "an ongoing" client.

At §38.3(a)(3)(B), concerning health insurance coverage, the subparagraph has been amended to clarify that both Medicaid and the Children's Health Insurance Program (CHIP) are among the types of health insurance coverage for which an applicant/client must apply and remain eligible, if not exempt from such coverage. Concerning when the program may extend the deadline, the phrase "and/or continue CSHCN program coverage" has been deleted, because it is not relevant to this deadline extension. The subparagraph also has been amended to state that, if the applicant/client is eligible for "any other health insurance" the applicant/client must be enrolled. The subparagraph formerly specified only that the eligible applicant/client must be enrolled in the CHIP.

At §38.3(a)(3)(C), the paragraph has been amended to clarify that its provisions apply to "ongoing clients" and to delete the statement that a family support services plan may not be implemented until the determination of program eligibility is complete. The statement is not relevant to the determination of program eligibility requirements.

Section 38.3(a)(7)(C) has been amended to state more clearly that applicants or clients who are financially eligible for Medicaid, CHIP, or other programs with eligibility income guidelines that meet the CSHCN Services Program's income eligibility guidelines, and who also meet the CSHCN Services Program's age and residency requirements, will be considered financially eligible for the CSHCN Services Program.

Section 38.3(a)(8) has been amended to distinguish between the lengths of time for which financial and medical eligibility may be reestablished. As required by the 79th Texas Legislature in Regular Session (2005), Appropriations Act, SB1, DSHS Rider 63, paragraph (d), financial eligibility must be reestablished "every six months, or as directed by statutory requirements" rather than "at least annually." The determination of medical criteria for eligibility continues to be at least annually. Requirements concerning notification and deadlines for determination of continuing eligibility have been amended, by deleting "annual" so that they are applicable to both financial and medical criteria.

In addition to name and other general changes identified previously, §38.4 has been amended by deleting the phrase "with a chronic physical or developmental condition as specified in §38.3(a)(1) of this title (relating to Eligibility for CSHCN Program Services)" at §38.4(b)(3), because the term "client" is defined in §38.2 of this title (relating to Definitions).

At §38.4(b)(3)(B), the phrase "in a calendar year" has been added to specify the time period within which no more than 30 outpatient mental health service encounters may be provided.

At §38.4(b)(3)(E)(i)(II), regarding inpatient psychiatric care, the phrase "Texas Department of Mental Health and Mental Retardation programs or other" has been deleted and replaced with "public or private mental health program" as a referral resource. In addition, although the requirement that all admissions be prior authorized remains, the five-day limitation on care has been deleted.

Although coverage of medical foods is not a new benefit, coverage for medical foods previously described only in program policy has been added at new §38.4(b)(3)(J). Subsequent subparagraphs have been re-alphabetized.

At §38.4(b)(3)(L)(ii), the benefit limitation of one eye examination with refraction has been clarified by stating that the benefit shall be available during "a calendar" year, rather than during "the state fiscal" year. The same limitation for one pair of non-prosthetic eyewear per year has been applied per "calendar" year at §38.4(b)(3)(L)(iii).

Also, for consistency and clarification, the home health services benefit limitations have been changed from hours per year to hours per "calendar" year at §38.4(b)(3)(Q).

Section 38.4(b)(5)(A)(i), concerning eligibility for family support services, has been deleted as redundant, and subsequent subparagraphs have been renumbered.

At §38.4(b)(5)(A)(ii), a reference to family support programs received through the Texas Department of Human Services or the Texas Department of Mental Health and Mental Retardation has been deleted and replaced with references to the Primary Home Care Program and the Medically Dependent Children's Program, as examples of other family support services programs.

At §38.4(b)(5)(A)(iii), the reference to family "support services plan" has been replaced by a family "assessment and service" plan to describe more accurately the plan that is actually developed.

Also relating to family support services, §38.4(b)(5)(B)(i) concerning the processing and evaluation of requests for family support services has been amended by adding "of clients" to describe the families to which the subparagraph applies, and by deleting the time limit within which a family must indicate in writing the need for family support services. Families of clients now may request family support services at any time.

At §38.4(b)(5)(B)(iv), the descriptor for §38.16 of this title "(relating to Procedures to Address CSHCN Services Program Budget Alignment)" has been added.

Section 38.4(b)(5)(C)(i) and §38.4(b)(5)(C)(vi) also have been amended to replace "written family support services" plan with "family assessment and service" plan.

Section 38.4(b)(5)(C)(ii)(II) and §38.4(b)(5)(C)(iii) have been amended by adding "calendar" to clarify the time period in which the service plan and cost allowance limitations apply.

Section 38.4(b)(5)(C)(iv)(II) has been amended to further define the term "vendor" by adding the descriptor, "enrolled as a CSHCN Services Program provider."

Section 38.4(b)(5)(D)(iii)(V) has been amended by replacing "the Texas Rehabilitation Commission" with "the Department of Assistive and Rehabilitative Services (DARS)."

Section 38.4(b)(5)(E)(ix), concerning unallowable services, has been amended to clarify that costs for allowable services must be incurred before the "requested family support service is prior authorized" rather than before the "written service plan is approved."

At §38.4(b)(5)(F)(iii), the descriptor for §38.16 of this title "(relating to Procedures to Address CSHCN Services Program Budget Alignment)" has been added, and at §38.4(b)(5)(F)(ix), the "written family support services" plan has been changed to the "family assessment and service" plan.

Section 38.4(b)(6)(B), concerning the CSHCN Services Program transportation benefit, has been amended to clarify that the benefit may include transportation "to" as well as "from" the nearest medically appropriate facility. Further description of the facility and benefit has been added by the phrase, "(in Texas or in the United States 50 or fewer miles from the Texas border) to obtain medically necessary and appropriate health care services that are within the scope of the coverage of the CSHCN Services Program and are provided by a CSHCN Services Program enrolled provider." The section also has been clarified by adding that transportation to services available more than 50 miles from the Texas border will not be approved, except as specified in §38.6(e) of this title (relating to Providers).

At §38.4(b)(6)(C), new language clarifies that the benefit for meals and lodging must be directly related to medically necessary treatment for the client "that is provided by program enrolled providers and covered by the program." New language also provides that coverage for meals and lodging associated with travel more than 50 miles from the Texas border will not be approved, except as specified in §38.6(e) of this title (relating to Providers).

Regarding transportation of the remains of a deceased client, §38.4(b)(6)(D)(i) has been amended, by replacing "while receiving CSHCN program services" with "while receiving CSHCN Services Program health care benefits" to describe the applicable circumstances more accurately. The scope of this benefit also has been clarified by adding that such transportation is, "from the facility to the place of burial in Texas that is designated by the parent or other person legally responsible for interment."

Section 38.4(b)(6)(E), concerning payment of insurance premiums, coinsurance, co-payments, and/or deductibles, has been amended by inserting phrases to improve the specifications for payment of coinsurance and deductible amounts when the total amount paid "(including all payers)" to the provider does not exceed the maximum allowed "by the CSHCN Services Program" for the covered service.

Section 38.4(c)(5) has been amended to clarify that, although pregnancy prevention in general is not a covered service, an exception exists for the specific treatment of "a condition meeting the parameters of the "child with special health care needs" definition."

Section 38.4(c)(6) has been amended to define more specifically the scope of the exclusion of "maternity care" as a covered service by addition of the description, "services specific to routine pregnancy care, labor and delivery, and maternal post-partum care."

Section 38.4(c)(7) has been amended to clarify that infertility treatment or other reproductive services are covered, if directly related to "a condition meeting the parameters of the "child with special health care needs" definition."

Section 38.4(d)(2) has been amended to clarify that requests for authorization of certain services must be submitted prior to the date of service.

Section 38.4(d)(4) has been deleted as repetitive, and the subsequent subparagraph has been renumbered.

At §38.4(d)(5), the reference to "ineligible recipients" has been changed to "ineligible persons," and application of the term "denied authorization requests" to those "clients who do not qualify for the health care benefit requested" has been clarified.

In addition to the CSHCN Services Program name change identified previously, §38.5 has been amended at §38.5(a)(4) to include representatives of "the commission or" the department among those whom a parent/foster parent/guardian/managing conservator or the adult client may refuse entry into the home.

Section 38.6(a)(3) has been amended to clarify that providers must agree to accept the CSHCN Services Program "allowed amount of" payment "(regardless of payer)" as payment in full for services "provided to CSHCN Services Program clients." The following sentence also has been added concerning payment for services: "Providers may not request or accept payment from the client or client's family for completing any CSHCN Services Program forms."

Section 38.6(a)(4) has been amended to identify more specifically all other "public or private" benefits available to the client, including "but not limited to" Medicaid or Medicaid waiver programs, CHIP, or Medicare, and "casualty or liability coverage" prior to requesting payment from the CSHCN Services Program, which is the payer of last resort.

Section 38.6(e)(1) has been amended by adding the following phrases to clarify the scope of out-of-state coverage: 50 "or fewer" miles "from the Texas state border" and "the CSHCN Services Program may cover services that are within the scope of the program and provided by health care providers" in New Mexico, Oklahoma, Arkansas, or Louisiana located "50 or fewer miles from" the Texas state border. The last sentence of the current section has been moved and re-designated as new subparagraph 38.6(e)(4).

At §38.6(e)(2), pertaining to travel "more than" 50 miles from the Texas border, the manager of the department unit having responsibility for oversight of the CSHCN Services Program, instead of the commissioner of health, has been authorized to approve payment to out-of-state providers, and coverage has been limited to "services that are within the scope of the CSHCN Services Program and provided by health care providers located within the United States and more than 50 miles from the Texas border." The current §38.6(e)(3) has been deleted and re-designated as new §38.6(e)(2)(B) stating, "the medical literature indicates that the out-of-state treatment is accepted medical practice and is anticipated to improve the client's quality of life" and subsequent subparagraphs have been renumbered.

New §38.6(e)(3) states that the out-of-state limitations do not apply to coverage or payment for selected products or devices including, but not limited to, medical foods or hearing amplification devices, which either are less costly and/or may be available only from out-of-state sources.

Section 38.6(e)(5) has been restated to more clearly and comprehensively describe the coverage for costs of transportation and associated meals and lodging for a client and, if necessary, a responsible adult for travel to and from the location of approved out-of-state services.

Changes to §38.7, relating to Ambulatory Surgical Care Facilities, include only changes to the CSHCN Services Program previously identified.

Section 38.8, relating to Inpatient Rehabilitation Centers, includes only name and minor grammatical changes identified previously, except for the amendment to §38.8(b)(8) stating that a center serving pediatric clients shall have at least one recreational area or playroom "that is bed and wheelchair accessible."

Section 38.9 (relating to Cleft/Craniofacial Center Teams) has been amended only to change the name of the CSHCN Services Program and to make minor grammatical changes. In addition to name and other changes identified previously, §38.10 (relating to Payment of Services) has been amended by adding the following sentence to the introductory paragraph of §38.10: "Providers may not request or accept payment from the client or the client's family for completing any CSHCN Services Program forms."

At §38.10(1)(B), the reference to ineligible "recipients" has been changed to ineligible "persons." The definition of "denied claims" has been expanded by adding "and/or are for clients who do not qualify for the health care benefit claimed."

Section 38.10(2), concerning claims involving health insurance coverage, CHIP or Medicaid, has been amended by stating that the CSHCN Services Program may pay covered health care benefits during a CHIP or other health insurance enrollment waiting period, and that during such periods, providers may file claims directly with the CSHCN Services Program without evidence of denial by the other insurer.

At §38.10(3)(C), "recipient" has been changed to "client."

Section 38.10(6) concerning CSHCN Services Program fee schedules, has been amended by adding, simplifying, or correcting reimbursement or pricing methodologies to reflect current practice. The amendments do not represent increases or decreases in reimbursement to individual provider types. In many instances, the phrase "the lower of the billed amount or the maximum amount allowed by the Texas Medicaid Program" replaces more detailed language that describes the way(s) in which the Medicaid maximum reimbursement amounts were derived.

New §38.10(6)(G) has been added to include a pricing methodology for medical foods. Subsequent subparagraphs have been re-alphabetized throughout the section.

At §38.10(6)(H), the reimbursement methodology for expendable medical supplies has been changed to the lower of the billed amount or the maximum amount allowed by the Texas Medicaid program.

At §38.10(6)(I), current language has been deleted and new language concerning the reimbursement methodology for durable medical equipment has been added to improve accuracy and to reflect current program practice. The penalty for delayed delivery has been deleted.

The reimbursement methodology for orthotics and prosthetics, formerly §38.10(6)(I)(iii), has been re-designated as §38.10(6)(K), and subsequent subparagraphs have been re-alphabetized.

At new §38.10(6)(M), the limitation for home health nursing services has been clarified by stating the maximum allowable number of hours per "calendar" year.

At new §38.10(6)(O), the state reimbursement methodology for audiological testing and amplification devices has been changed to the lower of the billed amount or the amount allowed by the Program for Amplification for Children of Texas (PACT).

At new §38.10(6)(U), "Centers for Medicare and Medicaid Services" has been substituted for the abbreviation "CMS."

At new §38.10(6)(X), the reimbursement methodology for independent laboratory services has been changed to the lower of the billed amount or the maximum allowed by the Texas Medicaid program.

At new §38.10(6)(AA), the reimbursement methodology for vision services has been amended to add an exception for high-powered lenses.

Section 38.11 of this title (relating to Contracts, Written Agreements, and Donations) includes no amendments other than name and general grammatical changes described previously.

Section 38.12 of this title (relating to Denial/Modification/Suspension/ Termination of Eligibility for Health Care Benefits and/or Health Care Benefits) includes no amendments other than name or general grammatical changes described previously.

In addition to name and other general changes described previously, §38.13 of this title (relating to Right of Appeal) has been amended at §38.13(a)(1)(A) to correct citations to other sections. At §38.13(a)(1)(D), the reference to "the department" as the entity that establishes by rule provider reimbursement and the program's budget alignment methodologies has been updated to refer to "the commission." The terms "reimbursement" or "reimbursement methodologies" have been included, replacing "fee schedules" at §38.13(a)(1)(D) because fee schedules are more detailed, frequently-updated lists that evolve from stated reimbursement methodologies.

There are no additional amendments to §38.14 of this title (relating to Development and Improvement of Standards and Services) other than name or general grammatical changes described previously.

Section 38.16(c)(3) has been amended to clarify that provision of "health care benefits" may "or may not include "coverage" rather than "payment" of outstanding bills in all cases.

At §38.16(c)(4), the process for providing limited health care benefits and/or payment of outstanding bills for health care benefits to as many clients with urgent need for health care benefits as possible who are on the waiting list and remain on the waiting list has been amended by adding the requirement that if family support services are included among limited health care benefits provided for clients with urgent need for health care benefits who are on the waiting list and remain on the waiting list, the coverage of family support services must be limited according to the parameters set forth in §38.16(b)(2)(C)(i). Those parameters require that family support services be provided to ongoing clients only to continue services already being provided, when the specific services are required to prevent out-of-home placement of the client, and/or when the provision of such services is cost-effective for the program.

At §38.16(d), the phrase "as described in subsection (a)(2) of this section" concerning funding analysis, has been deleted.

Section 38.16(d)(1)(A)(iii) and §38.16(d)(1)(A)(iv), concerning the order in which groups of clients shall be taken off the waiting list, have been deleted because they present administrative obstacles to implementation of §38.16(d) as a whole, and deletion causes neither favorable or adverse consequences for clients to whom the sections were applicable. Sections 38.16(d)(1)(A)(v) and 38.16(d)(1)(A)(vi) have been renumbered as §38.16(d)(1)(A)(iii) and §38.16(d)(1)(A)(iv).

Section 38.16(d)(1)(B)(i) and §38.16(d)(1)(B)(ii), concerning providing health care benefits for clients taken off the waiting list, have been deleted as superfluous because §38.16(d)(1)(B) also has been amended by addition of the phrase "as long as program unobligated funds are available" and the rule addressed at §38.16(d)(1)(B)(ii) repeats §38.16(c)(3)(B).

Section 38.16(d)(1)(C) has been amended to authorize payment of limited health care benefits for "clients who are on the waiting list and remain on the waiting list;" payment of outstanding bills for health care benefits for clients who are on the waiting list and remain on the waiting list; and/or "payment of outstanding bills for health care benefits for clients who have been taken off the waiting list." Consistent with changes to §38.16(c)(4), coverage of family support services must be limited according to the parameters set forth in §38.16(b)(2)(C)(i), if family support services are included among limited health care benefits. The requirement that clients on the waiting list be served in the same order as in paragraph (1) of the subsection and the limitation that only clients on the waiting list may be served by this provision have been deleted, and the reference to paragraphs (1) - (2) has been corrected.

Section 38.16(d)(1) has been amended to enable the program to expend unobligated funds after or while removing clients from the waiting list and providing them with health care benefits; only when projected unobligated funds are insufficient to take clients off the waiting list and also to maintain continuous program health care benefits, or when projected unobligated funds may lapse if not expended by the end of the fiscal year; only as long as program unobligated funds are available; and only if the outstanding bills for health care benefits are for dates of service that are within the time period that program unobligated funds are available and provided that the client is eligible for health care benefits at the time of the dates of service. The new language improves administrative efficiency and permits needed flexibility to expend unobligated funds near the end of a budget term.

At §38.16(d)(2)(B), the parenthetical phrase describing health care benefits has been amended by clarifying that "coverage" rather than "payment" of outstanding bills for health care benefits may "or may not" be included. "Or" at the end of §38.16(d)(2)(B) has been deleted as grammatically unnecessary.

Section 38.16(d)(2)(C) has been amended to be consistent with §38.16(d)(1)(C), as amended, and to provide limited health care benefits to clients "identified in subsection (d)(2)(A)(i) and (ii) who are on the waiting list and remain on the waiting list;" and/or "payment of outstanding bills for health care benefits for clients who have been taken off the waiting list." Section 38.16(d)(2)(C) has also been amended by the addition of a sentence providing that the coverage of family support services must be limited according to the parameters set forth in §38.16(b)(2)(C)(i) if family support services are included among limited health care benefits.

Consistent with the requirements of §38.16(d)(1)(C), as amended, §38.16(d)(2)(C) has been amended by deletion of the requirement that clients on the waiting list be served in the same order as in paragraph (2)(A) of the subsection and the limitation that only clients on the waiting list may be served. These amendments make §38.16(d)(2) consistent with other sections, as amended, and increase the efficiency and flexibility with which the program may expend unobligated funds resulting from program cost savings near the end of a budget term.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared a response to the comment received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. The commenter was the President of the Texas Pediatric Society, representing the members and on behalf of the Committee on Children with Disabilities. The commenter was not against the rules in their entirety; however, the commenter suggested recommendations for change as discussed in the summary of comments.

Comment: The Texas Pediatric Society (Society) recommended several changes to §38.14, concerning Development and Improvement of Standards and Services. In the section introduction paragraph and at paragraphs §38.14(1)(A) - (C), (3), and (6), the Society recommended changing the verbs from "may" to "shall." Generally, these paragraphs address a system of program evaluation, and specifically include monitoring for quality, medical necessity and effectiveness of services; developing standards and guidelines for services; conducting reviews for client care services and quality assurance reviews for provider services; establishing a task force to advise the CSHCN Services Program; and conducting population-based systems development activities.

Concerning §38.14(1), the Society recommended an additional sentence to require that the system of monitoring, "be done annually and results and analysis made generally available."

Concerning §38.14(3), the Society recommended that the task force advise the CSHCN Services Program about its quality assurance program, including its elements, data collection methodology, and data analysis, and make recommendations for consequent programmatic change. The Society further recommended that the task force include representation from stakeholder groups, including clients/families and providers, and that other task forces be established as appropriate.

Response: The commission finds merit in and appreciates the intent of the recommendations made by the Society, but the commission respectfully disagrees that the changes are needed. The current rule permits implementation of the activities proposed by the recommended changes. The department conducts activities for the development and improvement of standards and services consistent with state and federal law. No changes were made as a result of the recommendations.

The department staff on behalf of the commission provided comments, and the commission has reviewed and accepted the following changes that improve accuracy of the sections.

Change: Concerning §38.2(30), in the definition of a health insurance/health benefits plan, the words "publicly supported" have been added to modify "medical school", to make the definition parallel with the language in §38.2(34)(G) that defines "other benefits."

Change: Concerning §38.2(34)(G), in the definition of other benefit, "a county indigent health care program," has been added to make the definition parallel with the language in §38.2(30) that defines a health insurance/health benefits plan.

Change: Concerning §38.2(46), a grammatical error was corrected by making "meets" plural.

Change: Concerning §38.4(b)(3)(C), in order to reflect long-standing program policy, the words "must be prior authorized and" have been added concerning the provision of orthodontic care. Also, the term "dentofacial abnormalities" has been added to describe more fully diagnoses for which orthodontic care may be provided.

Change: Concerning §38.4(b)(6)(D)(i), the word "participating" has been changed to "approved" to describe a facility in which a CSHCN Services Program client expires in order to make the subparagraph consistent with the statute.

Change: Concerning §38.4(c)(6), the word "and" at the end of the paragraph has been deleted to accommodate the addition of new paragraphs (8) and (9) of this section.

Change: Concerning §38.4(c)(7), punctuation has been changed, and the words "or other reproductive services, unless directly related to a condition meeting the parameters of the "child with special health care needs" definition" have been deleted.

Change: Concerning §38.4(c), new paragraph (8), "services provided by a nursing home/facility; and" has been added to incorporate current program policy into rule.

Change: Concerning §38.4(c), new paragraph (9), "services provided while the client is in the custody of or incarcerated by any municipal, county, state, or federal governmental entity. Case management or prior approved family support services not provided by the governmental entity, that are needed during the time when a client is transitioning from custody or incarceration into a community living setting, may be covered" also has been added to incorporate program policy into rule.

Change: Concerning §38.4(d)(1), the deadline for submitting an authorization request has been changed from "90" to "95" days, in order to make it consistent with other deadlines.

Change: Concerning §38.6(e)(5), the first sentence has been corrected, replacing "above" with "in this subsection" to conform with Texas Register format.

Change: Concerning §38.16(d)(1)(C), the reference to "paragraph (b)(2)(C)(i)" in the second full sentence has been changed to "subsection (b)(2)(C)(i)" to conform with Texas Register format.

LEGAL CERTIFICATION

STATUTORY AUTHORITY

The amendments are adopted under the Health and Safety Code, §§35.003, 35.004, 35.0041, 35.005, 35.006, 35.007, 35.009, and 12.001, which authorize the executive commissioner of the Health and Human Services Commission to adopt rules for the performance of every duty imposed by law on the department and the commissioner of health; and Government Code, §531.0055(e), and Health and Safety Code, §1001.075, which authorize the executive commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

§38.2.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Children with Special Health Care Needs Services Act, Health and Safety Code, Chapter 35.

(2) Advanced practice nurse--A registered nurse approved by the Texas Board of Nurse Examiners to practice as an advanced practice nurse, including but not limited to a nurse practitioner, nurse anesthetist, or clinical nurse specialist.

(3) Applicant--A person making an initial application or re-application for CSHCN Services Program services.

(4) Bona fide resident--A person who:

(A) is physically present within the geographic boundaries of the state;

(B) has an intent to remain within the state;

(D) has not come to Texas from another country for the purpose of obtaining medical care, with the intent to return to the person's native country;

(E) does not claim residency in any other state or country; and

(i) is a minor child residing in Texas whose parent(s), managing conservator, guardian of the child's person, or caretaker (with whom the child consistently resides and plans to continue to reside) is a bona fide resident;

(ii) is a person residing in Texas who is the legally dependent spouse of a bona fide resident; or

(iii) is an adult residing in Texas, including an adult whose parent(s), managing conservator, guardian of the adult's person, or caretaker (with whom the adult consistently resides and plans to continue to reside) is a bona fide resident or who is his/her own guardian.

(5) Case management services--Case management services include, but are not limited to:

(A) planning, accessing, and coordinating needed health care and related services for children with special health care needs and their families. Case management services are performed in partnership with the child, the child's family, providers, and others involved in the care of the child and are performed as needed to help improve the well-being of the child and the child's family; and

(B) counseling for the child and the child's family about measures to prevent the transmission of AIDS or HIV and the availability in the geographic area of any appropriate health care services, such as mental health care, psychological health care, and social and support services.

(6) Child with special health care needs--A person who:

(A) is younger than 21 years of age and who has a chronic physical or developmental condition; or

(B) has cystic fibrosis, regardless of the person's age; and

(C) may have a behavioral or emotional condition that accompanies the person's physical or developmental condition. The term does not include a person who has behavioral or emotional condition without having an accompanying physical or developmental condition.

(7) CHIP--The Children's Health Insurance Program administered by the Texas Health and Human Services Commission under Title XXI of the Social Security Act.

(8) Chronic developmental condition--A disability manifested during the developmental period for a child with special health care needs which results in impaired intellectual functioning or deficiencies in essential skills, which is expected to continue for a period longer than one year, and which causes a person to need assistance in the major activities of daily living and/or in meeting personal care needs. For the purpose of this chapter, a chronic developmental condition must include physical manifestations and may not be solely a delay in intellectual, mental, behavioral and/or emotional development.

(9) Chronic physical condition--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.

(10) Claim form--The document approved by the CSHCN Services Program for submitting the unpaid claim for processing and payment.

(11) Client--A person who has applied for program services and who meets all CSHCN Services Program eligibility requirements and is determined to be eligible for program services.

(A) New client:

(i) a person who has applied to the program for the first time and who is determined to be eligible for program services; or

(ii) a person who has re-applied to the program (after a lapse in eligibility) and who is determined to be eligible for program services.

(B) Ongoing client--A client who currently is not on the program's waiting list.

(12) Commission--The Texas Health and Human Services Commission.

(13) Commissioner--The Commissioner of Health.

(14) Co-insurance--A cost-sharing arrangement in which a covered person pays a specified percentage of the charge for a covered service. The covered person may be responsible for payment at the time the health care service is provided.

(15) Co-pay/Co-payment--A cost-sharing arrangement in which a client pays a specified charge for a specified service. The client is usually responsible for payment at the time the health care service is provided.

(16) CSHCN Services Program --The services program for children with special health care needs described in §38.1 of this title (relating to Purpose and Common Name).

(17) Date of service (DOS)--The date a service is provided.

(18) Deductible--A cost-sharing arrangement in which a client is responsible for paying a specific amount annually for covered services before an insurance carrier or plan begins to pay for covered services.

(19) Dentist--An individual licensed by the State Board of Dental Examiners to practice dentistry in the State of Texas.

(20) Department--The Department of State Health Services.

(21) Diagnosis and evaluation services--The process of performing specialized examinations, tests, and/or procedures to determine whether a CSHCN Services Program applicant for health care benefits has a chronic physical or developmental condition as determined by a physician or dentist participating in the CSHCN Services Program and/or to help determine whether a waiting list client has an "urgent need for health care benefits", according to the criteria and protocol described in §38.16(e) of this title (relating to Procedures to Address CSHCN Services Program Budget Alignment).

(22) Eligibility date for the CSHCN Services Program health care benefits--The effective date of eligibility for the CSHCN Services Program health care benefits is 15 days prior to the date of receipt of the application, except in the following circumstances.

(A) The effective date of eligibility for newborns who are not born prematurely will be the date of birth. Newborn means a child 30 days old or younger.

(B) The effective date of eligibility following traumatic injury will be the day after the acute phase of treatment ends, but no earlier than 15 days prior to the date of receipt of the application.

(C) The effective date of eligibility for an applicant that is born prematurely will be the day after the applicant has been out of the hospital for 14 consecutive days, but no earlier than 15 days prior to the date of receipt of the application.

(D) The effective date of eligibility for applicants with spenddown is the day after the earliest DOS on which the cumulative bills are sufficient to meet the spenddown amount, but no earlier than 15 days prior to the date of receipt of the application. Only medical bills having a DOS within 12 months prior to the date of receipt of the application, or a DOS within 6 months after the financial eligibility denial date may be included to satisfy spenddown requirements. Medical bills for any member of the household for which the applicant, parent(s), guardian or managing conservator of the CSHCN Services Program applicant is responsible may be included. Medical bills used to meet spenddown cannot be paid by the CSHCN Services Program.

(E) Excluding applications for clients who are known to be ineligible for Medicaid and/or the CHIP due to age, citizenship status or insurance coverage, all applications must include a determination of eligibility from Medicaid and/or the CHIP. If the CSHCN Services Program application is received without a Medicaid determination, a CHIP determination, or other data/documents needed to process the application, it will be considered incomplete. The applicant will be notified that the application is incomplete and given 60 days to submit the Medicaid determination, CHIP denial or enrollment, or other missing data/documents to the CSHCN Services Program. If the application is made complete within the 60-day time limit, the client's eligibility effective date will be established as 15 days prior to the date the CSHCN Services Program application was first received. If the application is made complete more than 60 days after initial receipt, the eligibility effective date will be established as 15 days prior to the date the application was made complete.

(23) Emergency--A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent person with average knowledge of health and medicine could reasonably expect that the absence of immediate medical care could result in:

(A) placing the person's health in serious jeopardy;

(B) serious impairment to bodily functions; or

(24) Emotional or behavioral condition--Behavior which varies significantly from normal, that is chronic and does not quickly disappear, and that is unacceptable because of social or cultural expectations. Emotional or behavioral responses which are so different from those of the generally accepted, age-appropriate norms of people with the same ethnic or cultural background as to result in significant impairment in social relationships, self-care, educational progress, or classroom behavior. Examples include but are not limited to the following:

(A) an inability to build or maintain satisfactory age-appropriate interpersonal relationships with peers or adults;

(B) dangerously aggressive, self-destructive, severely withdrawn, or noncommunicative behaviors;

(D) evidence of excessive anxiety or fears.

(25) Facility--A hospital, psychiatric hospital, rehabilitation hospital or center, ambulatory surgical center, renal dialysis center, specialty center and/or outpatient clinic.

(26) Family--For the purpose of this chapter, the family includes the following persons who live in the same residence:

(A) the applicant;

(B) those related to the applicant as a parent, step-parent or spouse who have a legal responsibility to support the applicant or guardians/managing conservators who have a duty to provide food, shelter, education, and medical care for the applicant;

(D) children of a parent, step-parent or spouse.

(27) Family support services--Disability-related support, resources, or other assistance provided to the family of a child with special health care needs. The term may include services described by Part A of the Individuals with Disabilities Education Act (20 U.S.C. §1400 et seq. ), as amended, and permanency planning, as that term is defined by Government Code, §531.151.

(28) Financial independence--A person who currently files his or her own personal U.S. income tax return and is not claimed as a dependent by any other person on his or her U.S. income tax return.

(29) Health care benefits--CSHCN Services Program benefits consisting of diagnosis and evaluation services, rehabilitation services, medical home care management services, family support services, transportation related services, and insurance premium payment services.

(30) Health insurance/health benefits plan--A policy or plan, either individual, group, or government-sponsored, that an individual purchases or in which an individual participates that provides benefits when medical and/or dental costs are or would be incurred. Sources of health insurance include, but are not limited to, health insurance policies, health maintenance organizations, preferred provider organizations, employee health welfare plans, union health welfare plans, medical expense reimbursement plans, United States Department of Defense or Department of Veterans Affairs benefit plans, Medicaid, the Children's Health Insurance Program (CHIP), and Medicare. Benefits may be in any form, including, but not limited to, reimbursement based upon cost, cash payment based upon a schedule, or access without charge or at minimal charge to providers of medical and/or dental care. Benefits from a municipal or county hospital, joint municipal-county hospital, county hospital authority, hospital district, county indigent health care programs, or the facilities of a publicly supported medical school shall not constitute health insurance for purposes of this chapter.

(31) Household--The living unit in which the applicant resides and which also may include one or more of the following:

(A) mother;

(B) father;

(D) spouse;

(E) foster parent(s), managing conservator, or guardian;

(F) grandparent(s);

(G) sibling(s);

(H) stepbrother(s); or

(I) stepsister(s).

(32) Medical home--A respectful partnership between a client, the client's family as appropriate, and the client's primary health care setting. A medical home is family centered health care that is accessible, continuous, comprehensive, coordinated, compassionate, and culturally competent. A medical home includes a licensed medical professional who accepts responsibility for the provision and/or coordination of primary, preventive, and/or specialty care for a client, and coordination of care with other community services providers.

(33) Natural home--The home in which a person lives that is either the residence of his/her parent(s), foster parent(s) or guardian(s), or extended family member(s), or the home in the community where the person has chosen to live, alone or with other persons. A natural home may utilize natural support systems such as family, friends, co-workers, and services available to the general population as they are available.

(34) Other benefit--A benefit, other than a benefit provided under this chapter, to which a person is entitled for payment of the costs of services included in the scope of coverage of the CSHCN Services Program including, but not limited to, benefits available from:

(A) an insurance policy, group health plan, health maintenance organization, or prepaid medical or dental care plan;

(B) home, auto, or other liability insurance;

(C) Title XVIII, Title XIX, or Title XXI of the Social Security Act (42 U.S.C. §§1395 et seq. , 1396 et seq. , and 1397aa et seq. ), as amended;

(D) the United States Department of Veterans Affairs;

(E) the United States Department of Defense;

(F) workers' compensation or any other compulsory employers' insurance program;

(G) a public program created by federal or state law or under the authority of a municipality or other political subdivision of the state, excluding benefits created by the establishment of a municipal or county hospital, a joint municipal-county hospital, a county hospital authority, a hospital district, a county indigent health care program, or the facilities of a publicly supported medical school; or

(H) a cause of action for the cost of care, including medical care, dental care, facility care, and medical supplies, required for a person applying for or receiving services from the department, or a settlement or judgment based on the cause of action, if the expenses are related to the need for services provided under this chapter.

(35) Permanency planning--A planning process undertaken for children with chronic illness or developmental disabilities who reside in institutions or are at risk of institutional placement, with the explicit goal of securing a permanent living arrangement that enhances the child's growth and development, which is based on the philosophy that all children belong in families and need permanent family relationships. Permanency planning is directed toward securing: a consistent, nurturing environment; an enduring, positive adult relationship(s); and a specific person who will be an advocate for the child throughout the child's life. Permanency planning provides supports to enable families to nurture their children; to reunite with their children when they have been placed outside the home; and to place their children in family environments.

(36) Person--An individual, corporation, government or governmental subdivision or agency, business trust, partnership, association, or any other legal entity.

(37) Physician--A person licensed by the Texas State Board of Medical Examiners to practice medicine in this state.

(38) Prematurity/born prematurely--A child born at less than 36 weeks gestational age and hospitalized since birth.

(39) Program--The services program for Children with Special Health Care Needs (CSHCN).

(40) Provider--A person and/or facility as defined in §38.6 of this title (relating to Providers) that delivers services purchased by the CSHCN Services Program for the purpose of implementing the Act.

(41) Rehabilitation services--The process of the physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic/rehabilitative services:

(A) facility care, medical and dental care, and occupational, speech, and physical therapies;

(B) the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, and other medical supplies; and

(42) Respite care--A service provided on a short-term basis for the purpose of relief to the primary care giver in providing care to individuals with disabilities. Respite services can be provided in either in-home or out-of-home settings on a planned basis or in response to a crisis in the family where a temporary caregiver is needed.

(43) Routine child care--Child care for a child who needs supervision while the parent/guardian is at work, in school, or in job training.

(44) Services--The care, activities, and supplies provided under the Act, including but not limited to both acute and chronic/rehabilitative medical care, dental care, facility care, medications, durable medical equipment, medical supplies, occupational, physical, and speech therapies, family support services, case management services, and other care specified by program rules.

(45) Social service organization--For purposes of this chapter, a for-profit or nonprofit corporation or other entity, not including individual persons, that provides funds for travel, meal, lodging, and family supports expenses in advance to enable CSHCN Services Program clients to obtain program services.

(46) Specialty center--A facility and staff that meet the CSHCN Services Program minimum standards established in this chapter and are designated for use by CSHCN Services Program clients as part of the comprehensive services for a specific medical condition.

(47) Spenddown--Financial eligibility achieved when household income exceeds 200% of the federal poverty level, if the applicant's family can document its responsibility for household medical bills that are equal to or greater than the amount in excess of the 200% level.

(48) State--The State of Texas.

(49) Supplemental Security Income Program (SSI)--Title XVI of the Social Security Act which provides for payments to individuals (including children under age 18) who are disabled and have limited income and resources.

(50) Support--The contribution of money or services necessary for a person's maintenance, including, but not limited to, food, clothing, shelter, transportation, and health care.

(51) Treatment plan--The plan of care for the client (time and treatment specific) as certified by and implemented under the supervision of a physician or other practitioner participating in the CSHCN Services Program.

(52) United States Public Health Service (USPHS) price--The average manufacturer price for a drug in the preceding calendar quarter under Title XIX of the Social Security Act, reduced by the rebate percentage, as authorized by the Veterans Health Care Act of 1992 (P.L. 102-585, November 4, 1992).

(53) Urgent need for health care benefits--A client need that fits the criteria and protocol described in §38.16(e) of this title.

§38.4.Covered Services.

(a) Introduction. The CSHCN Services Program provides no direct medical services, but reimburses for services rendered by CSHCN Services Program participating providers and/or contractors. Clients must receive services as close to their home communities as possible, unless CSHCN Services Program contracts or policies require treatment at specific facilities or specialty centers and/or the clients' conditions require specific specialty care.

(b) Types of service.

(1) Early identification. The CSHCN Services Program may conduct outreach activities to identify children for program enrollment, increase their access to care, and help them use services appropriately. Outreach services may include, but are not limited to:

(A) CSHCN Services Program promotion to the general public, or targeted to potential clients and providers;

(B) development and distribution of educational materials to assist applicants and clients in the access and use of program services;

(C) development and distribution of population-based educational materials concerning children with special health care needs;

(D) integration with programs which screen for or provide treatment of newborn congenital anomalies and/or other specialty care; and

(E) links with community, regional, and/or school-based clinics to identify, assess needs, and provide appropriate resources for children with special health care needs.

(2) Diagnosis and evaluation services. May be covered for the purpose of determining whether a CSHCN Services Program applicant for health care benefits meets the CSHCN Services Program definition of a child with special health care needs. Diagnosis and evaluation services must be prior authorized and coverage is limited in duration. If a physician or dentist requests coverage of diagnosis and evaluation services to determine if the child/applicant meets the definition of a "child with special health care needs," and the applicant meets all other eligibility criteria, then the applicant may be given up to 60 days of program coverage for diagnosis and evaluation services only. The program medical director or other designated medical staff may prior authorize limited coverage of diagnosis and evaluation services for waiting list clients if needed to help determine "urgent need for health care benefits" as described in §38.16(e) of this title (relating to Procedures to Address CSHCN Services Program Budget Alignment). Only CSHCN Services Program participating providers may be reimbursed for diagnosis and evaluation services.

(3) Rehabilitation services. Rehabilitation services means a process of physical restoration, improvement, or maintenance of a body function destroyed or impaired by congenital defect, disease, or injury which includes the following acute and chronic/rehabilitative services: facility care, medical and dental care, occupational, speech, and physical therapies, the provision of medications, braces, orthotic and prosthetic devices, durable medical equipment, other medical supplies, and other services specified in this chapter. To be eligible for CSHCN Services Program reimbursement, treatment must be for a client and must have been prescribed by a provider in compliance with all applicable laws and regulations of the State of Texas. Services may be limited, and the availability of certain services described in the following subparagraphs is contingent upon implementation of automation procedures and systems.

(A) Medical assessment and treatment. Physicians must provide medical assessment and treatment services, including medically necessary laboratory and radiology studies, and other practitioners licensed by the State of Texas, enrolled as participating providers in the CSHCN Services Program, and within the scope of their respective licenses or registrations.

(B) Outpatient mental health services. Outpatient mental health services are limited to no more than 30 encounters in a calendar year by all professionals licensed to provide mental/behavioral health services, including psychiatrists, psychologists, licensed clinical social workers (LCSW), licensed marriage and family therapists, and licensed professional counselors, per eligible client per calendar year. Coverage includes, but is not limited to psychological or neuropsychological testing, psychotherapy, psychoanalysis, counseling, and narcosynthesis.

(C) Preventive and therapeutic dental services (including oral/maxillofacial surgery). Preventive and therapeutic dental services must be provided by licensed dentists enrolled to participate in the CSHCN Services Program. Coverage for therapeutic dental services, including prosthetics and oral/maxillofacial surgery, follows the Texas Medicaid program guidelines. Orthodontic care must be prior authorized and may be provided only for CSHCN eligible clients with diagnoses of cleft/craniofacial abnormalities, dentofacial abnormalities, and/or late effects of fractures of the skull and face bones.

(D) Podiatric services. Podiatric services must be provided by licensed podiatrists enrolled to participate in the CSHCN Services Program. Coverage is limited to the medically necessary treatment of foot and ankle conditions and follows the Texas Medicaid program guidelines. Supportive devices, such as molds, inlays, shoes, or supports, must comply with coverage limitations for foot orthoses.

(E) Treatment in CSHCN Services Program participating facilities. Non-emergency hospital care must be provided in facilities that are enrolled as CSHCN Services Program participating providers. The length of stay is limited according to diagnosis, procedures required, and the client's condition.

(i) Inpatient hospital care and inpatient psychiatric care.

(I) Inpatient hospital care. Coverage is limited to 60 days per calendar year for medically necessary care, and excludes the following:

(-a-) maternity care, newborn care, infertility treatment, or other reproductive services unless directly related to a covered chronic physical or developmental condition;

(-b-) personal comfort items, such as television or newspaper delivery; and

(-c-) private duty nursing/attendant care.

(II) Inpatient psychiatric care. Coverage is limited to inpatient assessment and crisis stabilization and is to be followed by referral to an appropriate public or private mental health program. Admission must be prior authorized. Services include those medically necessary and furnished by a Medicaid psychiatric hospital/facility under the direction of a psychiatrist.

(ii) Inpatient rehabilitation care. Medically necessary inpatient rehabilitation care is limited to an initial admission not to exceed 30 days, based on the functional status and potential of the client as certified by a physician participating in the CSHCN Services Program. Services beyond the initial 30 days may be approved by the CSHCN Services Program based upon the client's medical condition, plan of treatment, and progress. Payment for inpatient rehabilitation care is limited to 90 days during a calendar year.

(iii) Ambulatory surgical care. Ambulatory surgical care is limited to the medically necessary treatment of a client and may be performed only in CSHCN Services Program approved ambulatory surgical centers as defined in §38.7 of this title (relating to Ambulatory Surgical Care Facilities).

(iv) Emergency care. Care including, but not limited to hospital emergency departments, ancillary, and physician services, is limited to medical conditions manifested by acute symptoms of sufficient severity (including severe pain) such that a prudent person with average knowledge of health and medicine could reasonably expect that the absence of immediate medical care could result in placing the client's health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. If a client is admitted to a non-participating CSHCN Services Program hospital provider following care in that provider's emergency room, and the admitting facility declines to enroll or does not qualify as a CSHCN Services Program provider, the client must be discharged or transferred to a participating CSHCN Services Program provider as soon as the client's medical condition permits. All providers must enroll in order to receive reimbursement.

(v) Care for renal disease. Renal dialysis is limited to the treatment of acute renal disease or chronic (end stage) renal disease through a renal dialysis facility and includes, but is not limited to dialysis, laboratory services, drugs and supplies, declotting shunts, on-site physician services, and appropriate access surgery. Renal transplants may be covered in approved renal transplant centers if the projected cost of the transplant and follow-up care is less than that of continuing renal dialysis. Renal transplants must be prior authorized.

(F) Orthotic and prosthetic devices. Orthotic and prosthetic devices must be prescribed by a practitioner licensed to do so and supplied by an orthotist or prosthetist licensed by the State of Texas.

(G) Medications. Outpatient medications available through pharmacy providers, including over-the-counter products, must be prescribed by practitioners licensed to do so. Payment shall be made only after delivery of the medications.

(H) Nutrition services and nutritional products, excluding hyperalimentation/total parenteral nutrition (TPN).

(i) Nutrition services. Nutrition services must be prescribed by a practitioner licensed to do so.

(ii) Nutritional products. Nutritional products, including over-the-counter products, are limited to those covered by the CSHCN Services Program and prescribed by a practitioner licensed to do so, for the treatment of an identified metabolic disorder or other medical condition and serving as a medically necessary therapeutic agent for life and health, or when part or all nutritional intake is through a tube.

(I) Hyperalimentation/Total Parenteral Nutrition (TPN). A package of medically necessary services provided on a daily basis when oral intake cannot maintain adequate nutrition. TPN services include, but are not limited to solutions and additives, supplies and equipment, customary and routine laboratory work, enteral supplies, and nursing visits. Covered services must be reasonable, medically necessary, appropriate and prescribed by a practitioner licensed to do so.

(J) Medical foods. Coverage for medical foods is limited to the treatment of inborn metabolic disorders. Treatment for any other condition with medical foods requires documentation of medical necessity and prior authorization. Medical foods are approved products listed in enrolled providers' catalogs and are lacking in the compounds that cause complications of a covered metabolic disorder.

(K) Durable medical equipment. All equipment must be prescribed by a practitioner licensed to do so. Some equipment may be supplied on a contract basis, and therefore, shall be ordered from a specific supplier.

(L) Medical supplies. Supplies must be medically necessary for the treatment of an eligible client.

(M) Professional vision services. Vision services medically necessary for the treatment of a client include, but are not limited to:

(i) medically necessary eye examinations with refraction for diagnoses of refractive error, aphakia, diseases of the eye, or eye surgery;

(ii) one eye examination with refraction for the purpose of obtaining eyewear during a calendar year; and

(iii) one pair of non-prosthetic eye wear per calendar year prescribed by a practitioner licensed to do so.

(N) Speech-language pathology/audiology. Speech-language pathology and audiology services medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a speech-language pathologist or audiologist licensed by the State of Texas. CSHCN Services Program coverage of speech-language pathology and audiology services may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the client is eligible for services for which a school district is legally responsible.

(O) Audiological testing, hearing exams, and amplification devices. Services for clients under 21 years of age are coordinated through the Program for Amplification for Children of Texas (PACT). For clients 21 years of age and older and those ineligible for the PACT, covered services are the same as those available through the PACT.

(P) Occupational and physical therapy. Occupational and physical therapy medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a therapist licensed by the State of Texas. CSHCN Services Program coverage of physical and occupational therapy may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the child is eligible for services for which a school district is legally responsible.

(Q) Certified respiratory care practitioner services. Respiratory therapy medically necessary for the treatment of a client must be prescribed by a practitioner licensed to do so and provided by a certified respiratory care practitioner. CSHCN Services Program coverage of respiratory therapy may be limited to certain conditions, by type of service, by age, by the client's medical status, and whether the child is eligible for services for which a school district is legally responsible.

(R) Home health nursing services. Home health nursing services must be medically necessary, be prescribed by a physician, and be provided only by a licensed and certified home and community support services agency participating in the CSHCN Services Program. Home health nursing services are limited to 200 hours per client per calendar year. Up to 200 additional hours of service per client per calendar year may be approved with documented justification of need and cost effectiveness.

(S) Hospice care. Hospice care includes palliative care for clients with a presumed life expectancy of six months or less during the last weeks and months before death. Services apply to care for the hospice terminal diagnosis condition or illnesses. Treatment for conditions unrelated to the terminal condition or illnesses is unaffected. Hospice care must be prescribed by a practitioner licensed to do so who also is enrolled as a CSHCN Services Program provider.

(4) Care management.

(A) Medical home. Each CSHCN Services Program client should receive care in the context of a medical home.

(i) Comprehensive coordinated health care of infants, children, and adolescents should encompass the following services:

(I) provision of preventive care, including but not limited to, immunizations; growth and development assessments; appropriate screening health care supervision; client and parental counseling about health care supervision; and client and parental counseling about health and psychological issues;

(II) assurance of ambulatory and inpatient care for acute illness, 24 hours a day, seven days a week (including after hours and weekends);

(III) provision of care over an extended period of time to enhance continuity;

(IV) identification of the need for sub-specialty consultation and referrals, provision of medical information about the client to the consultant, evaluation of the consultant's recommendations, implementation of recommendations that are indicated and appropriate, and interpretation of the consultant's recommendations for the family;

(V) interaction with school and community agencies to assure that the special health needs of the client are addressed; and

(VI) maintenance of a central record and database containing all pertinent medical information about the client, including information about hospitalizations.

(ii) The CSHCN Services Program may require periodic reports from the medical home.

(B) Case management. Case management services may be made available to program clients through public health regional offices or other resources to assist clients and their families in obtaining adequate and appropriate services to meet the client's health and related services needs. The program will make available case management as needed/ desired to all clients who are eligible for health care benefits (includes clients who are on the waiting list for health care benefits). The program also may make available case management services to clients who are not eligible for the program's health care benefits.

(5) Family support services. Family support services include disability-related support, resources, or other assistance and may be provided to the family of a client with special health care needs.

(A) Eligibility. A client is eligible to receive family support services if:

(i) the client is not receiving services from a Medicaid home and community-based waiver program, and the requested service does not duplicate services received from other family support programs, such as the In-Home and Family Support program, the Primary Home Care Program, or the Medically Dependent Children's Program; and

(ii) the client's family collaborates with the assigned case manager to identify and pursue other sources of support and to develop a family assessment and service plan.

(B) Processing and evaluation of requests.

(i) Families of clients indicate their need for family support services.

(ii) In each public health region or other designated subdivision of the state, requests for family support services are processed in chronological order by the date of the request.

(iii) All requests for family support services must be prior authorized (approved by the CSHCN Services Program prior to delivery).

(iv) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title.

(v) Some services or items may require a written statement from a physician, physical therapist, occupational therapist, and/or other healthcare professional to establish the disability-related nature of the request.

(vi) Some services or items may require written bids.

(vii) Persons requesting assistance are responsible for collaborating with their case managers as necessary so that an accurate determination can be made in a timely manner.

(viii) Families shall be notified in writing of the outcome of their requests.

(ix) Families have the right to appeal a decision as described in §38.13 of this title (relating to Right of Appeal).

(i) In order to obtain prior authorization for family support services, the case manager and the client/family must develop a family assessment and service plan.

(ii) The CSHCN Services Program may establish annual cost allowances based upon the client's/family's level of assessed need for family support services, not to exceed:

(I) one-time assistance of up to $3,600 per eligible client for minor home remodeling; and

(II) assistance of up to $3,600 per calendar year per eligible client to purchase other allowable services. This limit may increase to no more than $7,200 for the purchase of vehicle lifts and modifications;

(iii) Service plan cost allowances may be prorated for plans that cover less than one calendar year.

(iv) Disbursement of assistance:

(I) may be in a lump sum or on a periodic basis;

(II) may be made to the family or to the vendor enrolled as a CSHCN Services Program provider; and

(III) may be reduced by the amount of a cost-sharing requirement, if applicable.

(v) Reimbursement rates for providers are established by the client/family and the selected provider in collaboration with the case manager.

(vi) The annual family assessment and service plan may be amended at any time, but will be reevaluated by the client/family and case manager at least annually to coincide with the client's reapplication for the CSHCN Services Program.

(D) Allowable services.

(i) Family support services for CSHCN Services Program clients and their families include those allowable services and items that:

(I) are above and beyond the scope of usual needs (i.e., basic clothing, food, shelter, medical care, and education);

(II) are necessitated by the client's medical condition or disability; and

(III) directly support the client's living in his/her natural home and participating in family life and community activities.

(ii) Family support services may not be used to supplant services available through other public or private programs, but may be used to supplement services provided by other programs.

(iii) Allowable services include:

(I) respite care;

(II) specialized child care costs for a client in excess of the prevailing rate for routine child care, including specialized training for the child care provider;

(III) counseling or training programs or services that assist the client/family, including parent or family stipends to attend education or training conferences;

(IV) minor home remodeling, limited to the purchase and installation of ramps, widening of doorways, the modification of bathroom facilities, kitchen modifications, and other modifications to increase accessibility and safety;

(V) vehicle lifts and modifications consistent with those available through the Department of Assistive and Rehabilitative Services (DARS), limited to lifts, wheelchair tie-downs, occupant restraints, accessories/modifications such as raising roofs or doors if necessary for lift installation or usage, hand controls, and repairs of covered modifications not related to inappropriate handling or misuse of equipment and not covered by other resources;

(VI) specialized equipment, including porch/stair lifts, air purification systems or air conditioners, positioning equipment, bath aids, supplies prescribed by licensed practitioners that are not covered through other systems, and other non-medical disability-related equipment that assists with family activities, promotes the client's self-reliance, or otherwise supports the family;

(VII) other disability-related services that support permanency planning, independence, and/or participation in family life and integrated/inclusive community activities.

(E) Unallowable services. Family support funds may not be used to provide those services that do not relate to the client's disability and do not directly support the client's living in his/her natural home and participating in family life and integrated/inclusive community activities. Examples of unallowable services include, but are not limited to:

(i) items for which a less expensive alternative of comparable quality is available;

(ii) purchase or lease of vehicles, or vehicle maintenance and repair;

(iii) home mortgage or rent expenses, or basic home maintenance and repair;

(iv) income taxes;

(v) medical services;

(vi) services in segregated settings other than respite facilities or camps;

(vii) insurance premiums;

(viii) death benefits, burial policies, and funeral expenses;

(ix) costs for allowable services incurred before the requested family support service is prior authorized;

(x) non-medical foods, routine shelter, routine utilities, routine home repairs, routine home appliances, routine furnishings, fences, and yard work;

(xi) medical benefit items or services paid for or reimbursed by private insurance, Medicaid, Medicare, CHIP, the CSHCN Services Program or other health insurance programs for which the client is eligible;

(xii) services, equipment, or supplies that have been denied by Medicaid, CHIP, or the CSHCN Services Program because a claim was received after the filing deadline, insufficient information was submitted, or because an item was considered inappropriate or experimental;

(xiii) over-the-counter or prescription medications;

(xiv) architectural modifications to a public facility;

(xv) school tuition or fees, or equipment/items/services that should be provided through the public school system;

(xvi) items that could endanger the health and safety of the client;

(xvii) routine child care;

(xviii) computers and software, unless for use as an assistive technology device or necessary to perform a critical or essential function such as environmental control, or written or oral communication, which the client is unable to perform without the computer;

(xix) services provided by an individual under the age of 18 years or by the client's parent(s)/guardian(s) or other member of the client's household;

(xx) services exclusively to support the care of siblings or other members of the client's household, but which are not necessary to meet the medical needs of the client;

(F) Reduction/termination of services. Reasons for terminating or reducing family support services may include, but are not limited to:

(i) the client no longer meets the eligibility criteria for the CSHCN Services Program;

(ii) services available through the program are discontinued due to budget restrictions;

(iii) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title;

(iv) the client's family indicates that the need for family support services no longer exists;

(v) the client moves out of Texas;

(vi) the client is placed in a nursing facility or other institutional setting for an indefinite period of time;

(vii) the client dies;

(viii) the client's designated case manager is unable to locate the client/family; or

(ix) the family knowingly does not comply with the family assessment and service plan, in which case the family may also be liable for restitution.

(6) Other types of services. The following services also are available through the CSHCN Services Program.

(A) Ambulance services. Emergency ground, non-emergency ground and air ambulance services are covered for the medically necessary transportation of a client. Non-emergency ambulance transport is covered if the client cannot be transported by any other means without endangering the health or safety of the client, and when there is a scheduled medical appointment for medically necessary care at the nearest appropriate facility. Transportation by air ambulance is limited to instances when the client's pickup point is inaccessible by land, or when great distance interferes with immediate admission to the nearest appropriate medical treatment facility. Transports to out-of-locality providers are covered if a local facility is not adequately equipped to treat the client. Out-of-locality refers to one-way transfers 50 miles or more from point of pickup to point of destination.

(B) Transportation. The CSHCN Services Program may provide transportation for a client and, if needed, a responsible adult, to and from the nearest medically appropriate facility (in Texas or in the United States 50 or fewer miles from the Texas border) to obtain medically necessary and appropriate health care services that are within the scope of coverage of the CSHCN Services Program and are provided by a CSHCN Services Program enrolled provider. The lowest-cost appropriate conveyance should be used. The CSHCN Services Program shall not assist if transportation is the responsibility of the client's school district or can be obtained through Medicaid. Transportation to out-of-state services located more than 50 miles from the Texas border will not be approved, except as specified in §38.6(e) of this title (relating to Providers).

(C) Meals and lodging. The CSHCN Services Program may provide meals and lodging to enable a parent, guardian, or their designee to obtain inpatient or outpatient care for a client at a facility located away from their home. The reason for the inpatient or outpatient visit must be directly related to medically necessary treatment for the client that is provided by program enrolled providers and covered by the program. Meals and lodging associated with travel to services that are provided more than 50 miles from the Texas border will not be approved, except as specified in §38.6(e) of this title.

(D) Transportation of deceased. The CSHCN Services Program may provide the following services:

(i) transportation cost for the remains of a client who expires in a CSHCN Services Program approved facility while receiving CSHCN Services Program health care benefits, if the client was not in the family's city of residence in Texas, and the transportation cost of a parent or other person accompanying the remains, from the facility to the place of burial in Texas that is designated by the parent or other person legally responsible for interment;

(ii) embalming of the deceased, if required by law for transportation;

(iii) a coffin meeting minimum requirements, if required by law for transportation; and

(iv) any other necessary expenses directly related to the care and return of the client's remains.

(E) Payment of insurance premiums, coinsurance, co-payments, and/or deductibles. The CSHCN Services Program may pay public or private health insurance premiums to maintain or acquire a health benefit plan or other third party coverage for the client, if the parent/foster parent/guardian/managing conservator is financially unable to do so, and if paying for such health insurance can reasonably be expected to be cost effective for the CSHCN Services Program. The CSHCN Services Program may pay for coinsurance and deductible amounts when the total amount paid (including all payers) to the provider does not exceed the maximum allowed by the CSHCN Services Program for the covered service. The CSHCN Services Program may reimburse clients for co-payments paid for covered services. The CSHCN Services Program may not pay premiums, deductibles, coinsurance or co-payments for clients enrolled in CHIP.

(c) Services not covered. Services which are not covered by the CSHCN Services Program even though they may be medically necessary for and provided to a client include, but are not limited to:

(1) treatments which are considered experimental or investigational;

(2) chiropractic services;

(3) care for premature infants;

(4) care for alcohol or substance abuse;

(5) pregnancy prevention, except when medically necessary for the specific treatment of a condition meeting the parameters of the "child with special health care needs" definition;

(6) maternity care services specific to routine pregnancy care, labor and delivery, and maternal post-partum care;

(7) infertility treatment;

(8) services provided by a nursing home/facility; and

(9) services provided while the client is in the custody of or incarcerated by any municipal, county, state, or federal governmental entity. Case management or prior approved family support services not provided by the governmental entity, that are needed during the time when a client is transitioning from custody or incarceration into a community living setting, may be covered.

(d) Service authorization. The CSHCN Services Program may require authorization (including prior authorization) of reimbursement for selected services for clients.

(1) Provider's responsibility. A CSHCN Services Program provider must request services in specific terms on department-prepared forms so that an authorization may be issued and sufficient monies encumbered to cover the cost of the service. If a service is authorized, payment may be made to the provider as long as the service is not covered by a third party resource, and all billing requirements are met. Program authorization should not be considered an absolute guarantee of payment. Once a service is delivered and if the service requires authorization for payment, the authorization request for that service must be submitted within 95 days of the date of service.

(2) Required prior authorization for selected services. At the CSHCN Services Program's option, selected services may require authorization prior to the delivery of services in order for payment to be made. Prior authorization requests must be submitted prior to the date of service.

(3) While there is a waiting list for health care benefits, limitations in reimbursement and/or prior authorization may be instituted as provided in §38.16 of this title.

(4) Denied authorization requests are authorization requests which are incomplete, submitted on the wrong form, lack necessary documentation, contain inaccurate information, fail to meet authorization request submission deadlines, and/or are for ineligible persons, services, or providers, and/or are for clients who do not qualify for the health care benefit requested. Denied authorization requests may be corrected and resubmitted for reconsideration. However, authorization requests must meet authorization request submission deadlines. If the results of the reconsideration process are unsatisfactory, denied authorization requests may be appealed according to §38.13 of this title (relating to Right of Appeal).

(e) Pilot projects. The CSHCN Services Program may initiate and participate in pilot projects to determine the fiscal impact of changes in eligibility criteria and the types of services provided. New projects are possible only if funds are available in the current fiscal year. All pilot projects are limited to no more than 10% of the fiscal year appropriation.

§38.6.Providers.

(a) General requirements for participation. The Children with Special Health Care Needs Services (CSHCN) Act, Health and Safety Code, §35.004, authorizes the approval of physicians, dentists, podiatrists, dietitians, facilities, specialty centers, and other providers to participate in the CSHCN Services Program according to its criteria and procedures.

(1) Providers seeking approval for CSHCN Services Program participation must submit a completed application to the CSHCN Services Program or its designee, including a signed provider agreement and all documents requested on the application.

(2) All approved CSHCN Services Program providers must agree to abide by CSHCN Services Program rules and regulations, and not to discriminate against clients based on source of payment.

(3) All CSHCN Service Program providers must agree to accept the CSHCN Services Program allowed amount of payment (regardless of payer) as payment in full for services provided to CSHCN Services Program clients. Providers may collect allowable insurance or health maintenance organization co-payments in accordance with those plan provisions. Providers may not request or accept payment from the client or client's family for completing any CSHCN Services Program forms.

(4) The CSHCN Services Program is the payer of last resort, and CSHCN Services Program providers must agree to utilize all other public or private benefits available to the client, including but not limited to Medicaid or Medicaid waiver programs, CHIP, or Medicare, and casualty or liability coverage prior to requesting payment from the CSHCN Services Program. Providers must agree to attempt to collect payment from the payer of other benefits. The CSHCN Services Program may pay for certain services for which other benefits may be available but have not been definitively determined. If other benefits become available after the CSHCN Services Program has paid for the services, the CSHCN Services Program shall recover its costs directly from the payer of other benefits or shall request the provider of services to collect payment and reimburse the CSHCN Services Program.

(5) Overpayments made on behalf of clients to CSHCN Services Program participating providers must be reimbursed to the CSHCN Services Program refund account by lump sum payment or, at the discretion of the department, in monthly installments or out of current claims due to be paid the provider. All providers must consent to on-site visits and/or audits by CSHCN Services Program staff or its designees.

(6) All CSHCN Services Program providers of services also covered by Medicaid must enroll and remain enrolled as Title XIX Medicaid providers. In order to be reimbursed by Medicaid as the primary payer, a provider must be enrolled on the date of service. The CSHCN Services Program will not reimburse an enrolled provider for any service covered under Medicaid that was provided to a CSHCN Services Program client eligible for Medicaid at the time of service. If a service covered by the CSHCN Services Program is not covered by Medicaid, the provider of that service is not required to enroll as a Medicaid provider. Any provider excluded by Medicaid for any reason shall be excluded by the CSHCN Services Program.

(7) If a license or certification is required by law to practice in the State of Texas, the provider must maintain the required license or certification.

(8) All providers shall be responsible for the actions of members of their staffs who provide CSHCN Services Program services.

(9) Any provider may withdraw from CSHCN Services Program participation at any time by so notifying the CSHCN Services Program in writing.

(b) Denial, modification, suspension, and termination of provider approval.

(1) The CSHCN Services Program may deny, modify, suspend, or terminate a provider's approval to participate for the following reasons:

(A) submitting false or fraudulent claims;

(B) failing to provide and maintain quality services or medically acceptable standards;

(C) not adhering to the provider agreement signed at the time of application or renewal for CSHCN Services Program participation;

(D) disenrollment as a Medicaid provider; or

(E) violation of the standards of this chapter.

(2) The CSHCN Services Program may deny or suspend approved provider status based on the CSHCN Services Program's knowledge of disciplinary action taken against the provider by the licensing authority under which the provider practices in the State of Texas or by the Texas Medicaid Program.

(3) Prior to taking an action to deny, modify, suspend, or terminate the approval of a provider, the CSHCN Services Program shall give the provider written notice of an opportunity of appeal in accordance with §38.13 of this title (relating to Right of Appeal). In addition, a fair hearing is available to any provider for the resolution of conflict between the CSHCN Services Program and the provider.

(1) physicians;

(2) dentists;

(3) advanced practice nurses;

(4) mental/behavioral health professionals, including psychiatrists, licensed psychologists, licensed clinical social workers, licensed marriage and family therapists, and licensed professional counselors;

(5) podiatrists;

(6) hospitals;

(7) inpatient rehabilitation centers;

(8) ambulatory surgical centers;

(9) renal dialysis centers;

(10) orthotists and prosthetists;

(11) pharmacies;

(12) dietitians;

(13) medical supply and/or equipment companies;

(14) optometrists and opticians;

(15) licensed speech-language pathologists and audiologists;

(16) hearing aid professionals (limited to physicians and those audiologists who are fitters and dispensers and enrolled as Program for Amplification for Children of Texas providers);

(17) occupational therapists and physical therapists;

(18) certified respiratory care practitioners;

(19) certified home and community support services agencies;

(20) hospice care providers;

(21) ambulance providers;

(22) transportation companies or providers;

(23) meal and lodging facilities; and

(24) funeral homes.

(d) Requirements for specialty centers.

(1) The CSHCN Services Program may accept as participating providers diagnostically specific specialty centers, such as bone marrow or other transplant centers, approved under the credentialing and/or approval standards and processes of the Texas Medicaid Program, if such specialty centers also submit a CSHCN Services Program provider enrollment application.

(2) Other specialty center standards. The CSHCN Services Program may establish standards to insure quality of care for children with special health care needs in the comprehensive diagnosis and treatment of specific medical conditions for specialty centers with Texas Medicaid Program separate credentialing standards as well as other specialty centers for which the Texas Medicaid Program has not established separate credentialing or approval standards for providers.

(e) Out-of-state coverage.

(1) Fifty or fewer miles from the Texas state border. For clients who would otherwise experience financial hardship or be subject to clear medical risk, the CSHCN Services Program may cover services that are within the scope of the program and provided by health care providers in New Mexico, Oklahoma, Arkansas, or Louisiana located 50 or fewer miles from the Texas state border.

(2) More than 50 miles from the Texas state border. The manager of the department unit having responsibility for oversight of the CSHCN Services Program may approve coverage of services that are within the scope of the CSHCN Services Program and provided by health care providers located within the United States and more than 50 miles from the Texas border in unique circumstances in which the CSHCN Services Program participating physician(s), the client, parent or guardian, and the CSHCN Services Program medical director agree that:

(A) an out-of-state provider is the provider of choice for quality care;

(B) the medical literature indicates that the out-of-state treatment is accepted medical practice and is anticipated to improve the client's quality of life;

(C) the same treatment or another treatment of equal benefit or cost is not available from Texas CSHCN Services Program providers; and

(D) the out-of-state treatment should result in a decrease in the total projected CSHCN Services Program cost of the client's treatment.

(3) The limitations of this paragraph do not apply to coverage for or payment to CSHCN Services Program providers of selected products or devices including, but not limited to, medical foods or hearing amplification devices, which either are always less costly and/or are only available, from out-of-state sources.

(4) For CSHCN Services Program reimbursement, all program policies and procedures will apply, including the requirement that all providers be CSHCN Services Program participating providers, as defined by this section.

(5) The CSHCN Services Program may cover costs of transportation and associated meals and lodging for a client and, if necessary, a responsible adult for travel to and from the location of out-of-state services that meet the program approval parameters in this subsection. Travel costs will be negotiated, with approval of specific travel options based on overall cost effectiveness.

§38.16.Procedures to Address CSHCN Services Program Budget Alignment.

(a) The department shall analyze actuarial cost projections concerning CSHCN Services Program administrative and client services to estimate the amount of funds needed in the fiscal year by the program to serve CSHCN Services Program clients and shall monitor such program cost projections and funding analyses at least monthly to determine whether the estimated amount of funds needed by the program will:

(1) exceed the program's appropriated funds and other available resources for the fiscal year; or

(2) be less than the program's appropriated funds and other available resources for the fiscal year.

(b) When the CSHCN Services Program projects that the estimated amount of funds needed in the fiscal year by the program to serve CSHCN Services Program clients will exceed the program's appropriated funds and other available resources for the fiscal year, the program shall use the following methodology to reduce/ limit the amount of funds to be expended by the program:

(1) give clients and providers who will be directly affected written notice of any reductions or limitations of services, coverage, and/or reimbursements;

(2) take the following actions in the order listed only until the projected amount of funds to be expended by the program approximately equals, but does not exceed, the program's appropriated funds and other available resources:

(A) implement administrative efficiencies, while avoiding changes which may jeopardize the quality and integrity of CSHCN Services Program service delivery;

(B) establish and administer a waiting list for health care benefits according to the procedures in this section;

(i) provide only limited prior authorization for family support services for ongoing clients, as determined by the medical director or other designated medical staff, only in order to continue services already being provided at the time the waiting list is established, and/or when the specific services are required to prevent out-of-home placement of the client (as documented by the CSHCN Services Program regional case management staff/ contractors), and/or when the provision of such services is cost effective for the program;

(ii) disallow prior authorization (coverage) of diagnosis and evaluation services for applicants who qualify for up to 60 days of program coverage for diagnosis and evaluation services only and refer such applicants to case management services; and

(iii) allow limited prior authorization of diagnosis and evaluation services on a short-term basis, only when such information is needed to assess whether clients on the waiting list have "urgent need for health care benefits" as described in subsection (e) of this section and only with prior authorization and approval by the medical director or other designated medical staff.

(D) place new applicants or re-applicants with lapsed eligibility who are determined eligible for program health care benefits (new clients for health care benefits) on the waiting list. These clients will be ordered on the waiting list according to the date/time the client is determined eligible for program health care benefits;

(E) reduce/limit reimbursements for contractual service providers, while avoiding changes which may jeopardize the integrity of the contractor base and thereby decrease client access to services;

(F) place clients who are eligible to receive CSHCN Services Program health care benefits and who currently are not on the waiting list (ongoing clients for health care benefits) on the waiting list. These clients will be ordered on the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits, and in the following order of movement to the waiting list:

(i) ongoing clients for health care benefits who have one or more sources of substantial health insurance coverage (such as Medicaid/ CHIP/ or other private health insurance similar in scope) in addition to the CSHCN Services Program (not including those ongoing clients for whom the CSHCN Services Program pays the insurance premiums);

(ii) ongoing clients for health care benefits in the following order by age groups: 21 years of age or older; 20 years of age; 19 years of age; 18 years of age; and

(iii) all other ongoing clients for health care benefits who do not have an urgent need for health care benefits;

(G) employ additional measures to reduce/ limit the amount of funds to be expended by the program as directed by rule.

(c) If the procedures described in subsection (b)(2)(A) - (F) of this section enable the program to project that the estimated amount of funds to be expended by the program in the fiscal year approximately equals, but does not exceed, the program's appropriated funds and other available resources, the program shall take the following additional steps in order to provide health care benefits to as many clients with urgent need for health care benefits as possible who are currently on the waiting list.

(1) generate cost savings by taking the following steps in the order listed:

(A) give clients and providers who will be directly affected written notice of any reductions or limitations of services, coverage, and/or reimbursements;

(B) reduce/limit reimbursements for contractual service providers, while avoiding changes which may jeopardize the integrity of the contractor base and thereby decrease client access to services;

(2) utilize cost savings generated to remove as many clients with urgent need for health care benefits as possible from the waiting list and provide health care benefits to those clients. Clients with urgent need for health care benefits shall be removed from the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(A) clients who are less than 21 years old and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(B) clients who are 21 years of age or older and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(3) provide health care benefits (which may or may not include coverage of outstanding bills for health care benefits) for clients with urgent need for health care benefits who are removed from the waiting list;

(A) as long as program cost savings funds are available; and

(B) if the outstanding bills for health care benefits are for dates of service that are within the time period that program cost savings funds are available and provided the client was eligible for program health care benefits at the time of the dates of service;

(4) provide limited health care benefits and/or payment of outstanding bills for health care benefits for clients with urgent need for health care benefits who are on the waiting list and remain on the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. If limited health care benefits coverage includes coverage of family support services, the coverage of family support services must be limited according to the parameters set forth in subsection (b)(2)(C)(i) of this section. Clients with urgent need for health care benefits who are on the waiting list will be served in the same order used in paragraph (2) of this subsection to remove clients with urgent need for health care benefits from the waiting list. This coverage may be provided to clients with urgent need on the waiting list prior to or at any point during activities described by paragraphs (2) - (3) of this subsection only:

(A) when projected cost savings funds are projected to be insufficient to remove clients with urgent need for health care benefits (or additional clients with urgent need for health care benefits) from the waiting list and maintain continuous program health care benefits coverage for those clients or when projected cost savings funds may lapse if not expended in this manner;

(B) as long as program cost savings funds are available; and

(C) if the outstanding bills for health care benefits are for dates of service that are within the time period that program cost savings funds are available and provided the client was eligible for program health care benefits at the time of the dates of service.

(d) When the CSHCN Services Program projects that the estimated amount of funds to be expended by the program in the fiscal year is less than the program's appropriated funds and other available resources due to the cost reduction, limitation, or deferral procedures implemented according to subsections (b) or (c) of this section, or the program's receipt of additional funding, or funding analysis resulting in a projected amount of unobligated funds, the program shall increase the amount of funds to be expended by the program.

(1) In an effort to expend unobligated funds (except for unobligated funds resulting from program actions taken according to subsection (c) of this section) the program shall utilize the following steps in the order listed only until the program projects that the estimated amount of unobligated funds will be expended by the program during the fiscal year:

(A) take clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(i) clients who are less than 21 years old and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(ii) clients who are 21 years of age or older and who have an urgent need for health care benefits, as described in subsection (e) of this section;

(iii) all other clients who are less than 21 years old who do not have an urgent need for health care benefits; and

(iv) all other clients who are 21 years of age or older who do not have an urgent need for health care benefits;

(B) provide health care benefits for clients taken off the waiting list as long as program unobligated funds are available;

(C) provide limited health care benefits for clients who are on the waiting list and remain on the waiting list; and/or payment of outstanding bills for health care benefits for clients who are on the waiting list and remain on the waiting list; and/or payment of outstanding bills for health care benefits for clients who have been taken off the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. If limited health care benefits coverage includes coverage of family support services, the coverage of family support services must be limited according to the parameters set forth in subsection (b)(2)(C)(i) of this section. This coverage may be provided at any point during activities described by subparagraphs (A) and (B) of this paragraph only:

(i) when projected unobligated funds are projected to be insufficient to take clients (or additional clients) off the waiting list and maintain continuous program health care benefits coverage for those clients or when projected unobligated funds may lapse if not expended in this manner;

(ii) as long as program unobligated funds are available; and

(iii) if the outstanding bills for health care benefits are for dates of service that are within the time period that program unobligated funds are available and provided the client was eligible for program health care benefits at the time of the dates of service;

(D) if the CSHCN Services Program projects that the amount of funds to be expended by the program in the fiscal year will be less than the program's appropriated funds and other available resources after no clients eligible for CSHCN Services Program health care benefits remain on the waiting list, the program may take the following actions in the following order:

(i) eliminate limitations on prior authorization for family support services;

(ii) provide prior authorized coverage of diagnosis and evaluation services for applicants who qualify for up to 60 days of program coverage for diagnosis and evaluation services only;

(iii) remove any of the additional measures taken to reduce/ limit the amount of funds to be expended by the program as directed by rule;

(iv) remove any reductions/ limitations to contractor reimbursements that have been implemented; and

(v) expand program services.

(2) In an effort to expend unobligated funds resulting from program actions taken according to subsection (c) of this section (unobligated cost savings funds that remain after all clients with urgent need for health care benefits have been removed from the waiting list and provided health care benefits) the program shall utilize the following steps in the order listed only until the program projects that the estimated amount of unobligated funds will be expended by the program during the fiscal year:

(A) take additional clients off the waiting list according to the original date/time that starts the client's latest uninterrupted sequence of eligibility for program health care benefits and in the following group order:

(i) clients who are less than 21 years old who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list;

(ii) clients who are 21 years of age or older who do not have an urgent need for health care benefits and who are clients who were placed on the waiting list when they were ongoing clients and who have had no lapse in eligibility while on the waiting list;

(B) provide health care benefits (which may or may not include coverage of outstanding bills for health care benefits) as stipulated in paragraph (1)(B) of this subsection for these clients taken off the waiting list;

(C) provide limited health care benefits for clients identified in subparagraph (A)(i) and (ii) of this paragraph who are on the waiting list and remain on the waiting list; and/or payment of outstanding bills for health care benefits for clients identified in subparagraph (A)(i) and (ii) of this paragraph who are on the waiting list and remain on the waiting list; and/or payment of outstanding bills for health care benefits for clients who have been taken off the waiting list. The program's coverage of such health care benefits may be limited in scope, amount, and duration and is not intended to be sustained over time. If limited health care benefits coverage includes coverage of family support services, the coverage of family support services must be limited according to the parameters set forth in subsection (b)(2)(C)(i) of this section. This coverage may be provided at any point during activities described by subparagraphs (A) and (B) of this paragraph and only as stipulated in paragraph (1)(C)(i) - (iii) of this subsection;

(D) remove any of the additional measures taken to generate cost savings by rule according to subsection (c)(1)(C) of this section; and

(E) remove any reductions/ limitations to contractor reimbursements that have been implemented.

(e) The program shall establish a protocol to be used by the medical director or other designated medical staff to determine whether a client has an "urgent need for health care benefits" by considering criteria including, but not limited to, the following:

(1) the physician or dentist who signs the client's application and/or the treating physician/dentist attests and/or documents the physician/dentist's determination that delay in receiving health care benefits could result in loss of life, permanent increase in disability, or intense pain/suffering;

(2) the client/family states that no other source of health insurance coverage is available to the client;

(3) information on the application for health care benefits indicates the complexity of the client's condition and/or need for care;

(4) information received from CSHCN Services Program regional case management staff/contractors supports other information gathered and/or indicates that a delay in health care benefits could reasonably be expected to result in an out-of-home placement/ institutionalization of the client because the family cannot continue to care for the client; and

(5) information obtained from diagnosis and evaluation services as prior authorized by the program medical director or other designated medical staff.

(f) The CSHCN Services Program central office may establish and administer the waiting list for health care benefits to address a budget shortfall.

(1) In order to facilitate contacting clients on the waiting list, the CSHCN Services Program shall collect information including, but not limited to the following:

(A) the client's name, address, and telephone number;

(B) the name, address, and telephone number of a contact person other than the client;

(D) the date on which the client became eligible for health care benefits;

(E) the client's functional limitations or needs;

(F) the range of services needed by the client; and

(G) a date on which the client is scheduled for reassessment.

(2) The waiting list is maintained continually from one fiscal year to the next. Clients must maintain eligibility for health care benefits to remain on the waiting list. A lapse of eligibility for health care benefits constitutes loss of position on the waiting list.

(3) The program shall refer clients on the waiting list to other possible sources of services, and shall contact waiting list clients periodically to confirm their continuing need for CSHCN Services Program services.

(4) The program will offer case management services as needed/desired to all clients who are eligible for health care benefits, including those on the waiting list for health care benefits.

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 May 8, 2006.

TRD-200602547

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 28, 2006

Proposal publication date: January 6, 2006

For further information, please call: (512) 458-7111 x6972

Chapter 39. PRIMARY HEALTH CARE SERVICES PROGRAM

Subchapter A. TEXAS PRIMARY HEALTH CARE SERVICES ACT PROGRAM RULES

25 TAC §§39.1 - 39.22

The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts the repeal of §§39.1-39.22 and new §§39.1-39.11, concerning the provision of primary health care services in this state without changes to the proposed text as published in the February 24, 2006, issue of the Texas Register (31 TexReg 1165) and, therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The repeal and new sections are necessary to comply with Health and Safety Code, Chapter 31, which directs the department to establish a program to provide primary health care services to eligible individuals. The Primary Health Care Services Program provides access to basic health care services for individuals whose incomes do not exceed 150% of the Federal Poverty Level residing in Texas who are unable to access the same care through other funding sources or programs.

Since legal, policy, and operational issues have changed significantly since the rules were adopted in 1986, the department determined that review and revision of the subchapter could be accomplished most effectively by proposing the repeal of the existing sections in the subchapter and proposing new language to remove outdated information and replace it with current information in a better-organized manner.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). Sections 39.1-39.22 have been reviewed, and the department has determined that reasons for adopting the sections continue to exist because rules on this subject are needed.

SECTION-BY-SECTION SUMMARY

Section 39.1 introduces the subchapter and states a purpose and mission for the provision of primary health care services as prescribed by Health and Safety Code, Chapter 31.

Health and Safety Code, §31.002, authorizes the department to define terms as necessary to administer the chapter. Section 39.2 defines specific terms used throughout the subchapter that pertain to the delivery of primary health care services by the department.

Health and Safety Code, §31.003 and §31.005, direct the department to adopt rules to guide the effective and efficient provision of services. Section 39.3 includes general requirements for the provision of primary health care services and a prioritization of the types of services that, at a minimum, must be provided to recipients because the department faces budgetary limitations. These fundamental services consist of diagnosis and treatment, emergency services, family planning services, preventive health services, health education, and diagnostic services. The requirements also include criteria, such as geographic area, socioeconomic status and available community resources, to guide where and to whom services should be provided, based upon unmet needs. If the department determines that existing community resources are unavailable or unable to meet the primary health care needs of the population in need, the department may deliver services directly to eligible individuals. Section 39.3 also clarifies that recipients eligible for Medicare Part D must receive prescription drug benefits according to Medicare regulations if the provider offers supplemental prescription drug benefits as part of the department's primary health care program.

As required by Health and Safety Code, §31.004 and §31.006, §39.4 outlines the process and requirements for the provision of contracts to providers that deliver primary health care services. Services may be delivered through a network of providers, directly by the department, or by a combination of both to ensure recipients are able to receive necessary services. The department must contract for services using a Request for Proposals process in accordance with state law and department policy. The department may deny, modify, suspend or terminate provider contracts for cause, and an applicant or current contractor that is aggrieved in relation to the award of a contract may file a protest in accordance with department policy.

Section 39.5 delineates the circumstance in which the department is obligated to reimburse providers for contracted services rendered and the timeframe in which providers can expect to receive payment.

Health and Safety Code, §§31.007-31.008, require the department to adopt rules relating to application procedures and eligibility criteria for potential program recipients. Section 39.6 states an individual must be in financial need and be a Texas resident in order to be eligible for program services. Individuals found ineligible for services may reapply at any time. The section also states that providers are required to assist applicants in completing the application process, provide coverage if the applicant meets eligibility criteria, determine if the applicant is eligible for Medicare Part D coverage, and provide services to potentially-eligible individuals with immediate medical needs. Although providers may collect co-payments from eligible individuals receiving services, no one shall be denied services based on an inability to pay, and pre-treatment deposits and/or payments are prohibited. The section explains that providers that offer supplemental prescription drug coverage as part of their primary health care program may reimburse eligible recipients for co-payments made for medications under Medicare Part D upon availability of funds.

Section 39.7 outlines the criteria necessary to maintain eligibility for program services. Recipients must continue to be in financial need and reside in Texas. Recipients are required to inform their providers of changes in address, health insurance coverage, employment, income, and family composition to ensure continued eligibility for services.

Health and Safety Code, Chapter 31, requires that primary health care services must be provided, to the greatest extent possible, to low-income individuals who are not eligible for similar services through other publicly-funded programs and who do not have another source of support. In order to assure that the department is the payer of last resort, §39.8 mandates coordination of benefits between the department, providers of other benefits programs, and person(s) who have a legal obligation to financially support the recipient.

Section 39.9 describes the terms under which services to recipients and applicants may be denied, modified, suspended, or terminated as required by Health and Safety Code, §31.009. Applicants who intentionally provide false or incomplete information, recipients that are no longer eligible for services, and recipients or other persons who have a legal obligation to support a recipient that do not reimburse the department for services will receive written notice of the denial, modification, suspension, or termination of services and an opportunity for a fair hearing.

Section 39.10 establishes the process by which an appeal requested by a recipient or applicant aggrieved by a program decision to deny, modify, suspend, or terminate participation in program services will be conducted.

According to Health and Safety Code, §31.015, the department is required to adopt rules relating to the information a provider shall report to the department. Section 39.11 states that program review activities will be conducted to ensure the delivery of appropriate services and evaluate the continued need for services. The department will require providers to report on the number of recipients served, demographic information about recipients, fiscal and expenditure information, program accomplishments, and coordination of benefits with other providers.

COMMENTS

The department, on behalf of the commission, has reviewed and prepared a response to the comment received regarding the proposed rules during the comment period, which the commission has reviewed and accepts. The commenter was Fort Bend Family Health Center, Inc., an organization that contracts with the department to provide primary health care services. The commenter was not against the rules in their entirety; however, the commenter expressed a concern as discussed in the summary of comments.

Comment: Concerning §39.6(g), the commenter expressed concern that the rule language would prohibit an agency from collecting co-payments from clients before services are performed.

Response: The commission disagrees and has determined that the language prohibiting required pre-treatment payments and deposits does not refer to co-payments, and therefore does not prohibit a contractor from requesting pre-treatment co-payments from individuals eligible for program services or persons legally responsible for them. No change was made as a result of this comment.

LEGAL CERTIFICATION

STATUTORY AUTHORITY

The repeals are adopted under the Health and Safety Code, §31.004(a), which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to administer Health and Safety Code, Chapter 31; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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 May 8, 2006.

TRD-200602545

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 28, 2006

Proposal publication date: February 24, 2006

For further information, please call: (512) 458-7111 x6972

Subchapter A. PRIMARY HEALTH CARE SERVICES PROGRAM

25 TAC §§39.1 - 39.11

The new sections are adopted under the Health and Safety Code, §31.004(a), which authorizes the Executive Commissioner of the Health and Human Services Commission to adopt rules necessary to administer Health and Safety Code, Chapter 31; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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 May 8, 2006.

TRD-200602546

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 28, 2006

Proposal publication date: February 24, 2006

For further information, please call: (512) 458-7111 x6972

Chapter 460. MISCELLANEOUS

Subchapter A. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION

1. TDMHMR RULEMAKING

25 TAC §§460.1 - 460.8

The Executive Commissioner of the Health and Human Services Commission, on behalf of the Department of State Health Services (department), adopts the repeal of §§460.1 - 460.8, concerning rulemaking by the Texas Department of Mental Health and Mental Retardation (TDMHMR) without changes to the proposed text that was published in the March 3, 2006, issue of the Texas Register (31 TexReg 1413), and the sections will not be published.

BACKGROUND AND PURPOSE

The repeal is necessary to comply with Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished the TDMHMR, one of the department's legacy agencies, and transferred its rulemaking authority to the Executive Commissioner of the Health and Human Services Commission effective September 1, 2004. Repeal of these sections is necessary to align the department's rules more accurately with House Bill 2292.

The rules and this Proposed Preamble were previously published as proposed in the Texas Register but expired on November 10, 2005, before final adoption and publication occurred. The department reproposed the repeals for publication, and the Executive Commissioner of the Health and Human Services Commission approved the reproposal on February 14, 2006. The reproposal was published in the March 3, 2006, issue of the Texas Register for a 30-day comment period.

SECTION-BY-SECTION SUMMARY

The repeal of §§460.1 - 460.8 is necessary to align the department's rules with the requirements of House Bill 2292 concerning the transfer of rulemaking authority from the TDMHMR to the Executive Commissioner of the Health and Human Services Commission.

COMMENTS

The department, on behalf of the Health and Human Services Commission, did not receive any comments regarding the proposed rules during the comment period.

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Cathy Campbell, certifies that the rules(s), as adopted, has been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

STATUTORY AUTHORITY

The adopted repeal is authorized by Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292), §1.18 and §1.26, which abolished the Texas Department of Mental Health and Mental Retardation and transferred its rulemaking authority to the Executive Commissioner of the Health and Human Services Commission; and Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies reasonably necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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 May 8, 2006.

TRD-200602550

Cathy Campbell

General Counsel

Department of State Health Services

Effective date: May 28, 2006

Proposal publication date: March 3, 2006

For further information, please call: (512) 458-7111 x6972