Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Chapter 353. MEDICAID MANAGED CARE
Subchapter E. STANDARDS FOR MEDICAID MANAGED CARE
The Texas Health and Human Services Commission (HHSC) proposes to add new §353.421 to Title 1, Part 15, Chapter 353, Subchapter E to implement provisions for Medicaid managed care organizations' Special Disease Management programs as required by Senate Bill (S.B.) 1188, 79th Legislature, Regular Session, 2005 and House Bill (H.B.) 1252, 79th Legislature, Regular Session, 2005, both of which are codified at §533.009(f), Government Code.
Background and Justification
S.B. 1188 requires HHSC to promulgate rules prescribing the minimum requirements Medicaid Managed Care Organizations (MCOs) must meet to be eligible to contract with HHSC to provide disease management services. The proposed rule requires that MCO disease management programs have performance measures that are comparable to those of the Medicaid fee-for-service/Primary Care Case Management disease management program, and that the MCOs demonstrate an ability to manage complex diseases among the Medicaid population.
Pursuant to H.B.1252, the new rule also includes requirements for MCOs that provide disease management services for chronic kidney disease and its complications.
Section-by-Section Summary
Section 353.421 defines "special disease management," and describes the requirements MCOs must meet in order to contract with HHSC to provide disease management programs, including the requirement that MCOs establish performance measures comparable to those of the Medicaid fee-for-service/Primary Care Case Management disease management program and that they coordinate beneficiary care when patients transition between disease management programs. The rule also specifies requirements for MCOs that implement a disease management program for chronic kidney disease and its complications.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed new rule is in effect there will be no fiscal impact to state government. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposed new rule as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment.
Public Benefit
Mr. Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed rule is in effect, the public will benefit from the adoption of the section. The anticipated public benefit, as a result of enforcing the proposed rule, will be the provision of high quality disease management services for Medicaid recipients enrolled in managed care.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environment exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environment exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Written comments on the proposal may be submitted to Gary Young, Senior Project Specialist, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, MC H-320, Austin, Texas 78708-5200; by fax to (512) 491-1969; or by e-mail to gary.young@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for May 17, 2007 from 9:00 a.m. to 10:00 a.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas 78758. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.
Statutory Authority
The new rule is proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed new rule affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.
§353.421.Special Disease Management.
(a) For purposes of this rule, "Special Disease Management" means a program of coordinated healthcare interventions and communications for populations with conditions in which patient self-care efforts are significant.
(b) In order for a managed care organization to receive a contract from the Health and Human Services Commission (HHSC) to provide special disease management services, the managed care organization must:
(1) Implement policies and procedures to ensure that members requiring special disease management services are identified and enrolled into a disease management program;
(2) Develop and maintain screening and evaluation procedures for the early detection, prevention, treatment, or referral of participants at risk for or diagnosed with chronic conditions such as heart disease, chronic kidney disease and its medical complications, respiratory illness including asthma, diabetes, and HIV infection or AIDS;
(3) Ensure that all members identified for special disease management are enrolled in and have the opportunity to opt out of special disease management services within 30 days while still maintaining access to all other covered services; and
(4) Show evidence of the ability to manage complex diseases in the Medicaid population. Such evidence shall be demonstrated by the managed care organization's compliance with this subchapter.
(c) Special disease management programs must include:
(1) Patient self-management education;
(2) Patient education regarding the role of the provider;
(3) Evidence-supported models, standards of care in the medical community, and clinical outcomes;
(4) Standardized protocols and participation criteria;
(5) Physician-directed or physician-supervised care;
(6) Implementation of interventions that address the continuum of care;
(7) Mechanisms to modify or change interventions that have not been proven effective;
(8) Mechanisms to monitor the impact of the special disease management program over time, including both the clinical and the financial impact;
(9) A system to track and monitor all special disease management participants for clinical, utilization, and cost measures;
(10) Designated staff to implement and maintain the program and assist members in accessing program services;
(11) A system that enables providers to request specific special disease management interventions; and
(12) Provider information, including the differences between recommended prevention and treatment and actual care received by special disease management participants, information concerning the participant's adherence to a service plan and reports on changes in each participant's health status.
(d) Special disease management programs must have performance measures for particular diseases. HHSC will review the performance measures submitted by a special disease management program for comparability with the relevant performance measures in §32.057, Human Resources Code, relating to contracts for disease management programs.
(e) Managed care organizations implementing a special disease management program for chronic kidney disease and its medical complications that includes screening for and diagnosis and treatment of this disease and its medical complications, must, for the screening, diagnosis and treatment, use generally recognized clinical practice guidelines and laboratory assessments that identify chronic kidney disease on the basis of impaired kidney function or the presence of kidney damage.
(f) A managed care organization that develops and implements a special disease management program shall coordinate participant care with a provider of a disease management program under §32.057, Human Resources Code, during a transition period for patients that move from one disease management program to another program.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701418
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
Subchapter A. PURCHASED HEALTH SERVICES
Division 1. MEDICAID PROCEDURES FOR PROVIDERS
The Texas Health and Human Services Commission (HHSC) proposes to amend §354.1003, Time Limits for Submitted Claims, in order to revise the time limits for submitting Medicaid claims for school districts delivering School Health and Related Services (SHARS).
Background and Justification
The Centers for Medicare & Medicaid Services (CMS) require that school districts, as public entities, not be paid in excess of their Medicaid-allowable costs for providing school-based services, known in Texas as SHARS. As a result, HHSC is implementing annual cost reporting, cost reconciliation, and cost settlement processes beginning with State Fiscal Year (SFY) 2007 (i.e., September 1, 2006, through August 31, 2007). The annual SFY 2007 Cost Report is due on or before March 1, 2008. The cost reconciliation and cost settlement processes for SFY 2007 services must be completed no later than August 31, 2009, in accordance with the CMS-approved Medicaid state plan reimbursement methodology language for SHARS providers.
Currently SHARS providers have to submit Medicaid claims within 365 days of the date of service, which is the federal filing deadline. The proposed amendment to the SHARS claims filing deadline rule will require initial claims to be submitted for SFY 2007 services on or before December 4, 2007, rather than on or before August 31, 2008. The revised due date of December 4, 2007, allows the vast majority of the claims to be processed through any appeals by late 2008, when the cost reconciliation and cost settlement processes begin. The proposed amendment is required in order to comply with the new CMS requirements that the cost reconciliation and cost settlement processes be completed no later than August 31, 2009, for SFY 2007 services, since SFY 2007 claims that are not cost reconciled and cost settled by August 31, 2009, cannot be processed during SFY 2010. Implementation of the proposed amendment should eliminate the need for HHSC staff to perform the cost reconciliation and cost settlement processes multiple times.
Section-by-Section Summary
In §354.1003(a)(5)(I), "School Health and Related Services" is removed and the remaining language is revised for clarity. A new subparagraph (J) is added after (a)(5)(I) that describes the claims filing deadline for School Health and Related Services.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed amendment is in effect there will be no fiscal impact to state government. The proposed amendment will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposed amendment, as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment.
Public Benefit
Mr. Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the rule is in effect, the public will benefit from the adoption of the section. The anticipated public benefit, as a result of enforcing the section, will be that the Medicaid reimbursement for SHARS providers will be in compliance with the new CMS requirements.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environment exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environment exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Written comments on the proposal may be submitted to Clarice Cefai, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission at 4900 N. Lamar Blvd, P.O. Box 13247, Austin, Texas 78711; by fax to (512) 506-7806; or by e-mail to Clarice.Cefai@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for May 17, 2007 from 2:00 p.m. to 3:00 p.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas 78758. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.
Statutory Authority
The amendment is proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed amendment affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.
§354.1003.Time Limits for Submitted Claims.
(a) Claims filing deadlines. Claims must be received by the Health and Human Services Commission (HHSC) or its designee in accordance with the following time limits to be considered for payment. Due to the volume of claims processed, claims that do not comply with the following deadlines will be denied payment.
(1) - (4) (No change.)
(5) The following exceptions to the claims-filing deadline apply to all claims received by HHSC or its designee regardless of provider or service type.
(A) - (H) (No change.)
(I) Claims for services rendered by the [health
care programs, such as School Health and Related Services or] County
Indigent Health Care Program, [where the program must also account]
for which [also require a] certification of the expenditures of
local or state funds is required, are due to HHSC or its designee
within the 365-day federal filing deadline.
(J) Claims for services rendered by school districts under the School Health and Related Services (SHARS) program, for which certification of the expenditures of local or state funds is required, are due to HHSC or its designee within the 365-day federal filing deadline or 95 days after the last day of the State Fiscal Year (SFY), whichever comes first.
(b) - (d) (No change.)
(e) Exceptions to the 95-day claim filing deadline. HHSC shall consider exceptions only when at least one of the situations included in this subsection exists. The final decision of whether a claim falls within one of the exceptions will be made by HHSC.
(1) Exceptions to the filing deadline are considered when one of the following situations exists:
(A)
Catastrophic
[
catastrophic
] event
that substantially interferes with normal business operations of the provider,
or damage or destruction of the provider's business office or records by a
natural disaster, including but not limited to fire, flood, or earthquake;
or damage or destruction of the provider's business office or records by circumstances
that are clearly beyond the control of the provider, including but not limited
to criminal activity. The damage or destruction of business records or criminal
activity exception does not apply to any negligent or intentional act of an
employee or agent of the provider because these persons are presumed to be
within the control of the provider. The presumption can only be rebutted when
the intentional acts of the employee or agent leads to termination of employment
and filing of criminal charges against the employee or agent; or
(B)
Delay
[
delay
] or error in the eligibility
determination of a recipient, or delay due to erroneous written information
from HHSC or its designee, or another state agency; or
(C)
Delay
[
delay
] due to electronic claim
or system implementation problems experienced by HHSC and its designee or
providers; or
(D)
Submission
[
submission
] of claims
occurred within the 365-day federal filing deadline, but the claim was not
filed within 95-days from the date of service because the service was determined
to be a benefit of the Medicaid program and an effective date for the new
benefit was applied retroactively; or
(E)
Recipient
[
recipient
] eligibility
is determined retroactively and the provider is not notified of retroactive
coverage.
(2) (No change.)
(f) - (g) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701419
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) proposes to add new §354.1069, Sign Language Interpreter Services to Title 1, Part 15, Chapter 354, Subchapter A, Division 5, Physician and Physician Assistant Services. The proposed new rule adds definitions, describes sign language interpreter services, specifies the requirements for sign language interpreters, and addresses physician reimbursement.
Background and Justification
The new rule is proposed to comply with House Bill (H.B.) 3235, 79th Legislature, Regular Session, 2005. Subject to the availability of funds, H.B. 3235 requires sign language interpreter services be available to Medicaid recipients who are deaf or hard of hearing, or to a parent or guardian of a person receiving Medicaid, if the parent or guardian is deaf or hard of hearing.
Section-by-Section Summary
Section 354.1069 lists the definitions for terms used in the rule. In addition, the proposed new rule describes sign language interpreter service benefits and limitations, documentation requirements, and physician reimbursement requirements.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first two-years the proposed rule is in effect, there will be a FY07-08 cost to state government of $582,053 state funds and $1,862,317 all funds. For the five-year period the proposed new rule is in effect there will be a fiscal impact to state government of $1,245,432 state funds and $2,975,583 all funds. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-Business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposed new rule, as they will not be required to alter their business practices as a result of the rules. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.
Public Benefit
Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit, as a result of enforcing the proposed rule, is broader availability of sign language interpreting services during the provision of physician services under the Medicaid program.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Written comments on the proposal may be submitted to Garry Walsh, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, Austin, TX 78708-5200, Mail Code H-390 91X; by fax to (512) 506-7806; or by e-mail to Garry.Walsh@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for May 24, 2007 from 2:00 p.m. to 3:00 p.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas 78758. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.
Statutory Authority
The new rule is proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021 and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed new rule affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapters 531 and 533. No other statutes, articles, or codes are affected by this proposal.
§354.1069.Sign Language Interpreter Services.
(a) Definitions. The following words and terms, when used in this chapter, have the following meanings.
(1) Deaf--The term "deaf" is defined in the Human Resources Code, Title 4, Services for the Deaf, Chapter 81, Texas Commission for the Deaf and Hard of Hearing, §81.001, Definitions.
(2) Hard of Hearing--The term "hard of hearing" is defined in the Human Resources Code, Title 4, Services for the Deaf, Chapter 81, Texas Commission for the Deaf and Hard of Hearing, §81.001, Definitions.
(3) Interpreter--An interpreter is an individual who possesses one of the following certification levels (i.e., levels A-H) issued by either the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, Board for Evaluation of Interpreters (BEI) or the National Registry of Interpreters for the Deaf (RID):
(A) Certification level A:
(i) Level I/Ii; and
(ii) OC:B (Oral Certificate: Basic).
(B) Certification level B:
(i) BEI Basic; and
(ii) RID NIC (National Interpreter Certificate) Certified.
(C) Certification level C:
(i) BEI Level II/Iii;
(ii) RID CI (Certificate of Interpretation);
(iii) RID CT (Certificate of Transliteration);
(iv) RID IC, (Interpretation Certificate); and
(v) RID TC (Transliteration Certificate).
(D) Certification level D:
(i) BEI Level III/IIIi;
(ii) BEI OC: C (Oral Certificate: Comprehensive);
(iii) BEI OC: V (Oral Certificate: Visible);
(iv) RID CSC (Comprehensive Skills Certificate);
(v) RID IC/TC (Interpretation Certificate/Transliteration Certificate);
(vi) RID CI/CT (Certificate of Interpretation/Certificate of Transliteration);
(vii) RID RSC (Reverse Skills Certificate); and
(viii) RID CDI (Certified Deaf Interpreter).
(E) Certification level E:
(i) A BEI Advanced; and
(ii) RID NIC Advanced.
(F) Certification level F:
(i) BEI IV/IVi;
(ii) RID MCSC (Master Comprehensive Skills Certificate); and
(iii) RID SC: L (Specialist Certificate: Legal).
(G) Certification level G is BEI V/VI.
(H) Certification level H:
(i) BEI Master; and
(ii) RID NIC Master.
(4) Interpreting Services--The provision of voice-to-sign, sign-to-voice, gestural-to-sign, sign-to-gestural, voice-to-visual, visual-to-voice, sign-to-visual, or visual-to-sign services for communication access provided by a certified interpreter.
(b) Benefit and Limitations. Sign language interpreting services are a health care benefit of the State Medical Assistance (Medicaid) Program.
(1) Sign language interpreting services must be requested by a physician and provided by a qualified interpreter to facilitate communication between:
(A) A client who is deaf or hard of hearing and a physician during the course of a medically necessary medical examination or other medical services; or,
(B) A client's parent or guardian who is deaf or hard of hearing and a physician during the course of the client's medically necessary medical examination or other medical services.
(2) A physician's determination of the need for sign language interpreting services shall give primary consideration to the needs of the individual who is deaf or hard of hearing.
(3) The physician requesting interpreting services must maintain documentation verifying the provision of interpreting services.
(A) Documentation of the service must be included in the patient's medical record and must include the name of the sign language interpreter and the interpreter's certification level.
(B) Documentation must be made available if requested by the Commission or its designee.
(c) Physician requirements for billing of and reimbursement for sign language interpreting services.
(1) Physicians must be enrolled in the Texas Medicaid Program to be considered for reimbursement.
(2) Reimbursement for sign language interpreting services is limited to physicians or physician groups employing fewer than fifteen employees.
(3) Providers seeking reimbursement for sign language interpreting services must provide and bill for the service in the manner prescribed by the Texas Medicaid Program and in accordance with §355.8085 of this title (relating to Texas Medicaid Reimbursement Methodology (TMRM) for Physicians and Certain Other Practitioners).
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701420
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
1 TAC §§354.1430, 354.1432, 354.1434
The Texas Health and Human Services Commission (HHSC) proposes to amend §354.1430, Definitions; §354.1432, Benefits and Limitations; and §354.1434, Requirements for Telemedicine Providers.
Background and Justification
These amendments add state schools and state hospitals throughout the state to the list of remote sites where a Medicaid recipient can receive telemedicine services. The amendments also replace the references to "local mental health authorities" with "community centers" to clarify that all community centers contracted with the Department of State Health Services are allowable telemedicine hub sites, and those in rural or underserved areas are allowable remote sites.
Section-by-Section Summary
Section 354.1430, Definitions, is updated to replace the definition of Local Mental Health Authority with Community Center, and adds definitions for a State School and State Hospital. The definition of Remote Site is revised to allow state schools and hospitals throughout the state to serve as telemedicine remote sites, which is where the patient is physically located during a telemedicine visit. The entities where a physician may be a hub site provider are re-numbered
Section 354.1432, Benefits and Limitations, is revised to specify that providers can be reimbursed for telemedicine services when the remote site is a state school or state hospital. The references to local mental health authority are changed to community center.
Section 354.1434, Requirements for Telemedicine Providers, is revised and the section on confidential information is updated so that permission to release information may be authorized by a client's legally authorized representative. Also added to this section is a reference to the requirements for authorized disclosure of confidential information for residents of state schools and patients of state hospitals.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rules are in effect there will be no fiscal impact to state government. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-Business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the amendments, as they will not be required to alter their business practices as a result of the rules. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.
Public Benefit
Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed rules are in effect, the public will benefit from the adoption of the proposed rules. The anticipated public benefit, as a result of enforcing the proposed rules, is increased availability of telemedicine services to residents of state schools and patients in state hospitals.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Written comments on the proposal may be submitted to Garry Walsh, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, Austin, TX 78708-5200, Mail Code H-390 91X; by fax to (512) 506-7806; or by e-mail to Garry.Walsh@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Comment
A public hearing is scheduled for May 24, 2007 from 11:00 a.m. to 12:00 p.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas 78758. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.
Statutory Authority
The amendments are proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021 and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The amendments affect the Human Resources Code, Chapter 32, and the Texas Government Code, Chapters 531 and 533. No other statutes, articles, or codes are affected by this proposal.
§354.1430.Definitions.
Definitions. The following words and terms, when used in this chapter, have the following meanings.
(1) (No change.)
(2) Hub Site Provider--A hub site provider must be a physician at a rural health facility or an accredited medical or osteopathic school located in Texas, or a physician at one of the following entities affiliated through a written contract or agreement with a government agency, accredited medical, or osteopathic school located in Texas :
[
(A)
Physician at a rural health
facility or an accredited medical or osteopathic school located in Texas,
or a physician at one of the following entities affiliated through a written
contract or agreement with a government agency, accredited medical, or osteopathic
school located in Texas:]
(A)
[
(B)
] Hospital;
(B)
[
(C)
] Teaching hospital;
(C)
[
(D)
] Tertiary center;
(D)
[
(E)
] Health clinic; or
(E)
[
(F)
]
Community center
[
Local Mental Health Authority
] as defined in Health and Safety Code
§534.001
[
§533.035
].
(3) Remote Site--A remote site is where the Medicaid client is physically located. Remote sites are limited to the following:
(A) State Hospitals;
(B) State Schools; or
(C) Locations in rural or medically underserved areas.
(4)
Remote Site Provider--A remote site provider [
is located
in rural or medically underserved areas and
] is limited to the following
provider types:
(A) (No change.)
(B) Advanced practice nurse (APN), including nurse
practitioner
(NP)
[
practitioners (NPs)
] and clinical nurse
specialist
(CNS)
[
specialists (CNSs)
], 1 TAC §355.8281; certified
nurse
midwife (CNM)
[
midwives (CNMs)
], 1 TAC §355.8161;
and certified registered nurse
anesthetist (CRNA)
[
anesthetists
(CRNAs)
], 1 TAC §355.8221;
(C) - (F) (No change.)
(G) One of the following qualified professionals contracted
with or employed by a
community center
[
local mental health
authority
]:
(i) - (v) (No change.)
(5) - (6) (No change.)
(7) State hospital--A state hospital is a hospital with an inpatient component and operated by the Department of State Health Services.
(8) State school--Also referred to as a "State MR Facility." A state school or state center with a mental retardation residential component as defined in 40 TAC §2.253(42) (relating to Definitions).
(9)
[
(7)
] Telemedicine--Telemedicine
is a method of health care service delivery used to facilitate medical consultations
by a physician to health care providers [
in rural or underserved areas
] for purposes of patient diagnosis or treatment that requires advanced
telecommunications technologies.
(10)
[
(8)
] Telepathology--Telepathology
is the practice of pathology (consultation, education and research) using
telecommunications to transmit data and images between two or more sites remotely
located from each other.
(11)
[
(9)
] Teleradiology--Teleradiology
is a means of electronically transmitting radiographic patient images and
consultative text from one location to another.
(12)
[
(10)
] Underserved--An underserved
area that meets the definition of Medically Underserved Area (MUA) or Medically
Underserved Population (MUP) by the U.S. Department of Health and Human Services.
§354.1432.Benefits and Limitations.
(a) Telemedicine services are a health care benefit of the Texas Medicaid Program. Telemedicine services are described below.
(1) - (2) (No change.)
(3) Telemedicine remote sites may be reimbursed for services
when any one of the following places of service are utilized [
and billed
]:
(A) - (F) (No change.)
(G) ICF-MR facility; [or]
(H)
Community center
[
A local mental health
authority
] clinic as defined in Health and Safety Code
§534.001
[
§533.035
] or outreach site associated with a
community center
[
local mental health authority
];
(I) State school, or
(J) State hospital.
(4) - (6) (No change.)
(b) Reimbursement for Services Performed Using Telemedicine.
(1) (No change.)
(2) Telemedicine services are reimbursed in accordance with
the [existing
] Medicaid reimbursement methodology as defined in §355.7001
of this title (relating to Telemedicine Services Reimbursement).
§354.1434.Requirements for Telemedicine Providers.
(a)
A provider
[
Providers
]
of telemedicine services must
be enrolled in the Texas Medicaid Program
to be eligible for reimbursement.
[
adhere to the requirements listed
in this section.
]
[
(1)
Must be enrolled in the Texas
Medicaid Program to be eligible for reimbursement.]
(b)
[
(2)
] The hub site provider's findings
must be documented in writing in the
client's
[
recipient's
] medical records at the remote site.
(c)
[
(3)
] The remote site provider must
be present with the client during the interactive video telemedicine visit.
(d)
[
(4)
] The remote site provider is
responsible for providing or coordinating the plan of care and treatment after
consulting with the hub site provider.
(e)
[
(5)
] Information about the diagnosis,
evaluation, or treatment of a client with Medicaid coverage by a person licensed
or certified to perform the diagnosis, evaluation or treatment of any medical,
mental or emotional disorder, or drug abuse, is confidential information that
the provider may disclose only to authorized people. Only the client
or legally authorized representative
may give written permission for
release of any pertinent information before client information can be released,
and confidentiality must be maintained in all other aspects. The signed consent
form or documentation of consent for release of information is to become part
of the medical record at the remote site.
(f) The requirements for authorized disclosure of confidential information relating to clients in state hospitals and residents in state schools are included in Health and Safety Code §611.004.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701421
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
Subchapter J. PURCHASED HEALTH SERVICES
Division 4. MEDICAID HOSPITAL SERVICES
The Health and Human Services Commission (HHSC) proposes an amendment to §355.8063, concerning the reimbursement methodology for freestanding psychiatric inpatient services, in Chapter 355, Reimbursement Rates.
Background and Purpose
The purpose of the amendment is to revise the Medicaid reimbursement methodology for freestanding psychiatric inpatient hospitals. The reimbursement methodology for freestanding psychiatric hospitals will change from Tax Equity Fiscal Responsibility Act (TEFRA) principles, which is a cost-based reimbursement, to a hospital-specific per diem rate, which will be reimbursed under a prospective payment system (PPS).
The proposed amendment is estimated to result in an additional annual cost of $4.7 million all funds for State Fiscal Year (SFY) 2007 due to the change in the reimbursement rate being implemented November 1, 2006. For SFY 2008 and thereafter, the estimated additional cost is expected to be $5.6 million all funds. Using the provider's Medicaid costs to calculate its hospital-specific per diem amount yields a reimbursement rate that better reflects the provider's actual costs.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rule is in effect there will be an additional average cost of over $2 million in general revenue and over $3.17 million in federal funds for each state fiscal year the rule is implemented. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will incur no additional costs.
Small Business and Micro-business Impact Analysis
HHSC has determined that there is no adverse economic effect on small businesses or micro-businesses, or on businesses of any size, as a result of enforcing or administering the amendment, since providers will be reimbursed for their Medicaid inpatient psychiatric services based upon their actual costs of providing those services.
Cost to Persons and Effect on Local Economies
HHSC does not anticipate that there will be any economic cost to persons who are required to comply with this amendment. The amendment will not affect a local economy.
Public Benefit
Carolyn Pratt, Director of Rate Analysis, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendment is that freestanding psychiatric facilities will be reimbursed based upon their actual costs of providing psychiatric inpatient services.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code, §2007.043.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Public Comment
Questions about the content of this proposal may be directed to Alisa Jacquet (telephone: (512) 491-1432; FAX: (512) 491-1998) in HHSC Rate Analysis for Hospital Acute Care Services. Written comments on the proposal may be submitted to Ms. Jacquet via facsimile, e-mail to alisa.jacquet@hhsc.state.tx.us, or mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, TX 78708-5200, within 30 days of publication in the Texas Register.
Statutory Authority
The amendment is proposed under the Texas Government Code, §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the Commission's duties, and §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Human Resources Code, Chapter 32.
The proposed amendment affects Texas Government Code, §531.033 and §531.021(b) and Chapter 32 of the Human Resources Code. No other statutes, articles, or codes are affected by this proposal.
§355.8063.Reimbursement Methodology for Inpatient Hospital Services.
(a) - (n) (No change.)
(o) Reimbursement to in-state children's hospitals [and
freestanding psychiatric facilities
]. The HHSC or its designee reimburses
in-state children's hospitals [
and freestanding psychiatric facilities
] under similar methods and procedures used in the Social Security Act,
Title XVIII, as amended, effective October 1, 1982, by Public Law 97-248,
Tax Equity and Fiscal Responsibility Act (TEFRA) except for the cost of direct
graduate medical education (DGME). For cost reporting periods beginning on
or after September 1, 2003, children's hospitals with allowable DGME costs
as determined under TEFRA principles will receive a pro rata share of their
annual TEFRA DGME cost based on appropriations or allocations from appropriations
made specifically for this purpose. The amount and frequency of interim payments
will also be subject to the availability of appropriations made specifically
for this purpose. Interim payments are subject to settlement at both tentative
and final audit of a hospital's cost report. The HHSC or its designee establishes
target rates and stipulates payments per discharge, incentives, and percentage
of payments. The HHSC or its designee uses each hospital's 1987 final audited
cost reporting period (fiscal year ending during calendar year 1987) as its
target base period. The target base period for hospitals recognized by Medicare
as children's hospitals after the implementation of this subsection is the
hospital's first full 12-month cost reporting period occurring after its recognition
by Medicare. The HHSC or its designee annually increases each hospital's target
amount for the target base period by the cost-of-living index described in
subsection (n) of this section. The HHSC or its designee selects a new target
base period at least every three years. The HHSC or its designee bases interim
payments to each hospital upon the interim rate derived from the hospital's
most recent tentative or final Medicaid cost report settlement. If a Title
XIX participating hospital is subsequently recognized by Medicare as a children's
hospital after the implementation of this subsection, the hospital must submit
written notification to the HHSC or its designee and include adequate documentation
and claims data. Upon receipt of the written notification from the hospital,
the HHSC or its designee reserves the right to take 90 days to convert the
hospital's reimbursement to the reimbursement methodology described in this
subsection.
(p) - (v) (No change.)
(w) Reimbursement to freestanding psychiatric facilities. Effective November 1, 2006, HHSC or its designee reimburses freestanding psychiatric facilities, under the prospective payment system, a hospital-specific per diem rate. The per diem rate will be determined based upon the facility's most recent tentative or final Medicaid cost report. HHSC or its designee will not cost settle for services provided to recipients admitted as inpatients to freestanding psychiatric facilities reimbursed under the prospective payment system on or after the implementation date of the prospective payment system.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701422
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
The Health and Human Services Commission (HHSC) proposes an amendment to §355.8065, concerning the trauma condition of participation included in the Medicaid Disproportionate Share Hospital (DSH) Program.
Background and Purpose
The purpose of this amendment is to require children's hospitals to become designated as part of the state's trauma network in order to receive disproportionate share funds. In the current rule, children's hospitals are exempt from becoming designated as part of the state's trauma network in order to receive DSH funds. The amendment deletes the exception for children's hospitals, which has existed since 1993. Recently, several children's hospitals have requested trauma designation from the state. And in May 2006, the Governor's EMS and Trauma Advisory Council (GETAC) recommended unanimously that children's hospitals be required to have trauma designations in order to receive DSH funds.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rule is in effect there will be no additional cost to the state for each state fiscal year the rule is implemented. The proposed amendment will not result in any fiscal implications for local health and human services agencies. Local governments will incur no additional costs.
Small Business and Micro-business Impact Analysis
HHSC has determined that there is no adverse economic effect on small businesses or micro-businesses, or on businesses of any size, as a result of enforcing or administering the amendment.
Cost to Persons and Effect on Local Economies
HHSC does not anticipate that there will be any economic cost to persons who are required to comply with this amendment. The amendment will not affect a local economy.
Public Benefit
Carolyn Pratt, Director of Rate Analysis, has determined that, for each of the first five years the amendment is in effect, the public benefit expected is that children's hospitals will be better able to treat trauma patients.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Public Comment
Questions about the content of this proposal may be directed to Henry Welles (telephone: (512) 491-1368) in HHSC Rate Analysis for Hospital Acute Care Services. Written comments on the proposal may be submitted to Mr. Welles via facsimile ((512) 491-1998); by e-mail to Henry.Welles@hhsc.state.tx.us or mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200, within 30 days of publication in the Texas Register.
Statutory Authority
The amendment is proposed under the Texas Government Code, §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties, and §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for the medical assistance program under the Human Resources Code, Chapter 32.
The proposed amendment affects Texas Government Code, §531.033 and §531.021(b) and Chapter 32 of the Human Resources Code. No other statutes, articles, or codes are affected by this proposal.
§355.8065.Additional Reimbursement to Disproportionate Share Hospitals.
(a) - (b) (No change.)
(c) Conditions of participation. Before the beginning of each state fiscal year, which begins September 1, the single state agency or its designee shall survey Medicaid hospitals to determine which hospitals meet the state's conditions of participation. Hospitals must allow state personnel access to the hospital and its records to ensure compliance with the conditions of participation. Failure to meet all of the conditions of participation shall result in ineligibility for participation in the program. These conditions of participation do not apply to state-owned teaching hospitals as specified in §355.8067 of this title (relating to Disproportionate Share Hospital Reimbursement Methodology for State-Owned Teaching Hospitals). The conditions of participation are as follows.
(1) - (6) (No change.)
(7) Trauma system. Disproportionate share hospitals must actively
participate in the development of a regional trauma system, which includes
obtaining
trauma facility designation as defined in the state trauma
laws (Health and Safety Code, §§773.111 - 773.120) and Department
of State Health Services (DSHS) rules. This condition shall apply only if
rules and procedures to designate
trauma
facilities have been adopted.
Exceptions: The following hospitals are exempt from the trauma system condition:
State mental and state chest hospitals; psychiatric hospitals licensed by
DSHS; and certain hospitals licensed as "special" by DSHS (i.e., long term
care hospitals, ventilator hospitals, burn institutes, and alcohol-chemical
dependency hospitals); rehabilitation hospitals; maternity hospitals; college
infirmaries; contagious disease hospitals; and hospitals for the terminally
ill. [
Pediatric and adolescent facilities are exempt from trauma facility
designation requirements until the time that state law authorizes the designation
of pediatric and/or adolescent trauma facilities.
]
(A) (No change.)
(B) Hospitals shall be designated as trauma facilities under four levels that range from "basic" (stabilization and transfer of major and severe trauma patients) to "comprehensive" (care and management of all trauma patients, plus education and research.
(8) - (9) (No change.)
(d) Qualifying formulas for determining disproportionate share status. Each hospital must have a Medicaid inpatient utilization rate, at a minimum, of 1.0%. The single state agency or its designee shall identify the qualifying Medicaid disproportionate share providers from among the hospitals that meet the two-physician requirement and the state's conditions of participation, as specified in subsection (c)(1) - (9) of this section, by using the following formulas. In the case of hospitals that have merged to form a single Medicaid provider, the single state agency or its designee shall aggregate the data points from the individual hospitals that now make up the single provider to determine whether the single Medicaid provider qualifies as a Medicaid disproportionate share hospital. Medicaid disproportionate share hospitals shall receive payments if they merge with other hospitals during the fiscal year, if they continue to meet the two-physician requirement, and if they meet the other conditions of participation. Children's hospitals that do not otherwise qualify as disproportionate share hospitals shall be deemed disproportionate share hospitals. The formulas are as follows:
(1) - (3) (No change.)
(4)
Total
[
total
] Medicaid inpatient
days at least one standard deviation above the mean Medicaid inpatient days
for all hospitals participating in the Medicaid program.
(5) (No change.)
(e) (No change.)
(f) Reimbursing Medicaid disproportionate share hospitals. The commission shall reimburse Medicaid disproportionate share hospitals on a monthly basis. Monthly payments will equal one twelfth of annual payments unless it is necessary to adjust the amount because payments will not be made for a full 12-month period, to comply with the annual state disproportionate share hospital allotment, or to comply with other state or federal disproportionate share hospital program requirements. Before the start of the next state fiscal year, the commission determines the size of the available funds to reimburse disproportionate share hospitals for the next state fiscal year, which begins each September 1. The funds available to reimburse the state chest hospitals and state mental hospitals equal the total of their adjusted hospital specific limits. The available fund for the remaining hospitals equals the lesser of the funds remaining in the state's annual disproportionate share allotment or the sum of qualifying hospitals' adjusted hospital specific limits. Payments shall be made in the following manner, unless the commission determines the hospital's proposed reimbursement has exceeded its specific limit.
(1) A state chest hospital meets the requirements for disproportionate
share status and provides inpatient hospital services receives annually up
to 175 percent of [f] its adjusted hospital specific
limit. A state mental hospital that meets the requirements of disproportionate
share status and provides inpatient psychiatric services receives 100 percent
of its adjusted hospital specific limit.
(2) (No change.)
(g) - (i) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701423
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900
Subchapter F. PERSONAL CARE SERVICES
1 TAC §§363.601, 363.603, 363.605, 363.607
The Texas Health and Human Services Commission (HHSC or Commission) proposes to amend Chapter 363, Comprehensive Care Program, by adding new Subchapter F, Personal Care Services §§363.601, 363.603, 363.605 and 363.607. HHSC also seeks to change the title of the same Chapter 363 to "Early and Periodic Screening, Diagnosis and Treatment." Chapter 363 describes specific benefits available to Medicaid clients under the age of 21 through the federal Early and Periodic Screening, Diagnosis, and Treatment program (EPSDT).
Background and Justification
Alberto N. v. Hawkins, was filed in 1999, in the U.S. District Court for the Eastern District of Texas. Plaintiffs were children who alleged they had been denied access to certain medically necessary in-home Medicaid services, including personal care services (PCS). To meet plaintiffs' needs, and the needs of those similarly situated, HHSC is establishing a personal care services benefit designed especially for EPSDT beneficiaries. Currently personal care services for EPSDT-eligible beneficiaries are available through the Primary Home Care program operated by the Department of Aging and Disability Services. The proposed new benefit is expected to be operational by September 1, 2007. The personal care services benefit will be available to any EPSDT-eligible beneficiary who requires assistance with activities of daily living, instrumental activities of daily living, and health-related functions due to a physical, cognitive, or behavioral limitation related to his or her disability or chronic health condition, regardless of diagnosis, type of illness, or condition. The new Subchapter F, Personal Care Services, in Chapter 363, sets out the administrative rules necessary to implement the new personal care services benefit. The Commission may propose additional administrative rules as they become necessary.
Section-by-Section Summary
Section 363.601 states that the purpose of new Subchapter F is to establish rules for the new personal care services (PCS) benefit. The rule also outlines eligibility and medical necessity criteria for PCS.
Section 363.603 establishes PCS provider participation requirements for both individuals and organizations. The requirements are in accordance with federal and state regulations, including regulations for Consumer Directed Services Agencies that provide services under Title 40, Part 1, Chapter 41 of the Texas Administrative Code. The rule also describes requirements for school districts providing PCS through the School Health and Related Services (SHARS) program.
Section 363.605 describes the benefits available through PCS (e.g., assisting clients with activities of daily living), the authorization process that a provider must complete prior to providing PCS, benefit limitations, and reasons for termination. In addition, the new rule states that PCS may be delivered through the Consumer Directed Services option described in Title 40, Part 1, Chapter 41 of the Texas Administrative Code.
Section 363.607 establishes the settings in which an EPSDT beneficiary may receive the new PCS benefit.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed rules are in effect there will be a fiscal impact to state government of $53.6 million for state fiscal year (SFY) 2008, $55.6 million for SFY 2009, $57.0 million for SFY 2010, $58.3 million for SFY 2011, and $59.7 million for SFY 2012. The proposed rules will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.
Small and Micro-business Impact Analysis
Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposal, as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment.
Public Benefit
Mr. Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed rules are in effect, the public will benefit from the adoption of the new rules. The anticipated public benefit, as a result of enforcing the new rules, will be to provide additional personal care services to the Medicaid population under 21 years of age.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.
Public Comment
Written comments on the proposal may be submitted to Pablo Bastida, Policy Analyst in the Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, MC-H390, Austin, Texas 78708-5200; by fax to (512) 491-1984; or by e-mail to Pablo.Bastida@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for May 23, 2007 from 9:00 a.m. to 10 a.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas 78758. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.
Statutory Authority
The new rules are proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed new rules affect the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.
§363.601.Eligibility and Medical Necessity Criteria.
(a) The purpose of this subchapter is to define personal care services available through the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT)-Comprehensive Care Program.
(b) Personal care services may be provided to individuals who are under 21 years of age and eligible for EPSDT.
(c) Personal care services are medically necessary when a beneficiary requires assistance with activities of daily living (ADLs), instrumental activities of daily living (IADLs), or health related functions because of a physical, cognitive or behavioral limitation that is related to the beneficiary's disability or chronic health condition.
§363.603.Provider Participation Requirements.
(a) Personal care services must be provided by an individual who:
(1) Is 18 years of age or older;
(2) Is an employee of a provider organization or an employee of the beneficiary, or the beneficiary's parent or guardian, if the beneficiary is receiving personal care services through the consumer directed services (CDS) option described in 40 TAC, Chapter 41 (relating to Consumer Directed Services Option);
(3) Has demonstrated competence, when competence cannot be demonstrated through education and experience, to perform the personal assistance tasks assigned by the provider organization supervisor, the beneficiary, or the beneficiary's parent or guardian acting as employer through the CDS option described in 40 TAC, Chapter 41 (relating to Consumer Directed Services Option);
(4) Is not a legal or foster parent of the beneficiary who receives the service; and
(5) Is not the legal spouse of the beneficiary who receives the service.
(b) HHSC may establish rates of reimbursement based on the level of care required by the beneficiary and the qualifications of and tasks performed by the personal care services attendant.
(c) An organization providing personal care services must meet the licensing standards for a home and community support services agency (HCSSA) set out in 40 TAC, Chapter 97 (relating to Licensing Standards for Home and Community Support Services Agencies) for one of the following license categories or special service types:
(1) Licensed Home Health Services, as set out in 40 TAC §97.401 (relating to Standards Specific to Licensed Home Health Services);
(2) Licensed and Certified Home Health Services, as set out in 40 TAC §97.402 (relating to Standards Specific to Licensed and Certified Home Health Services); or
(3) Agencies licensed to provide personal assistance services, as set out in 40 TAC §97.404 (relating to Standards Specific to Agencies Licensed to Provide Personal Assistance Services).
(d) An organization serving as a Consumer Directed Services Agency (CDSA), providing financial management services and other employer support services to a client receiving personal care services through the CDS modality, must meet the CDSA contracting requirements specified in 40 TAC Chapters 41 and 49 (relating to Consumer Directed Services Option and Contracting for Community Care Services).
(e) Provider organizations and CDSA, must successfully enroll as a Texas Medicaid provider prior to seeking authorization or payment for personal care services.
(f) A provider of personal care services delivered by a school district as School Health and Related Services (SHARS) includes employees or contracted staff, e.g., bus monitor/aide when provided on a specially adapted school bus, special education teacher, and special education teacher's aide.
§363.605.Benefits and Limitations.
(a) Personal care services are support services provided to an EPSDT beneficiary who requires assistance with activities of daily living (ADLs), instrumental activities of daily living (IADLs), and health-related functions due to physical, cognitive, or behavioral limitations related to his or her disability or chronic health condition.
(1) ADLs include, but are not limited to, eating, toileting, grooming, dressing, bathing, transferring, maintaining continence, positioning, and mobility.
(2) IADLs include, but are not limited to, personal hygiene, meal preparation, grocery shopping, light housework, laundry, communication, transportation, and money management.
(3) Health-related functions include, but are not limited to, medication administration and management, range of motion, exercise, skin care, use of durable medical equipment, reporting the beneficiary's condition, including changes to the beneficiary's condition or needs, and completing appropriate records.
(b) Personal care services may include:
(1) Nurse-delegated tasks, including health maintenance activities, as permitted by the Texas Nursing Practice Act and its implementing regulations; and
(2) Hands-on assistance, cuing, redirecting, or intervening, to accomplish the task.
(c) Prior to providing personal care services, a provider must successfully obtain authorization from HHSC or its designee. Prior authorization for the service is required for consideration of payment.
(1) School districts seeking authorization of personal care services through SHARS must submit an individualized educational program (IEP).
(2) All providers (excluding SHARS providers) must submit the following when seeking authorization for personal care services:
(A) A completed HHSC-approved comprehensive assessment form;
(B) A completed HHSC-approved service plan;
(C) An HHSC-approved written statement of need from the beneficiary's physician or usual source of care (i.e., a practitioner with ongoing clinical knowledge of the beneficiary); and
(D) Any other documentation required by HHSC to complete the authorization process.
(d) In evaluating the request for personal care services, HHSC or its designee will determine the amount and duration of personal care services by taking into account the following:
(1) Whether the beneficiary has a physical, cognitive, or behavioral limitation related to a disability or chronic health condition that inhibits the beneficiary's ability to accomplish ADLs, IADLs, or related health functions;
(2) The parent/guardian's need to sleep, work, attend school, and meet their own medical needs;
(3) The parent/guardian's legal obligation to care for, support, and meet the medical, educational, and psycho-social needs of their other dependents; and
(4) The parent/guardian's physical ability to perform the personal care services.
(5) Whether or not the need to assist the family in performing personal care services on behalf of the client is related to a medical, cognitive, or behavioral condition that results in a level of functional ability that is significantly below that expected of a typically developing child of the same chronological age.
(e) HHSC will not arbitrarily deny authorization of personal care services or reduce the number of requested hours of services based solely on the client's diagnosis, type of illness, or condition.
(f) A beneficiary may receive personal care services through the Consumer Directed Services (CDS) option defined in 40 TAC, Chapter 41 (relating to Consumer Directed Services Option).
(g) Personal care services limitations include the following:
(1) HHSC will not reimburse for personal care services used for or intended to provide:
(A) Respite care; or
(B) Child care.
(2) Personal care services shall neither replace parents or guardians as the primary care giver, nor provide all the care a beneficiary requires to live at home. Primary care givers remain responsible for a substantial portion of a beneficiary's daily care, and personal care services are intended to support the care of the beneficiary living at home.
(h) Authorization for personal care services will be terminated by HHSC or its designee when:
(1) The beneficiary is no longer eligible for Texas Medicaid;
(2) The beneficiary no longer meets the medical necessity criteria for personal care services;
(3) The place of service(s) can no longer meet the beneficiary's health and safety needs;
(4) The provider requests termination due to the beneficiary's lack of compliance with the service plan;
(5) The provider fails to comply with Medicaid policies and procedures; or
(6) The authorization for personal care services expires.
§363.607.Place of Service.
(a) Personal care services may be provided in an individual or group setting.
(b) Personal care services may be authorized for the following place(s) of service:
(1) The beneficiary's home;
(2) The home of the primary or alternate care giver;
(3) The beneficiary's school;
(4) The beneficiary's day care facility; or
(5) Any setting in which the beneficiary is located, except for hospitals, nursing facilities, intermediate care facilities for the mentally retarded, or institutions for mental disease.
(c) The place of service must be able to support the beneficiary's health and safety needs.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2007.
TRD-200701426
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 27, 2007
For further information, please call: (512) 424-6900