PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 19. PSYCHOLOGISTS' SERVICES
The Texas Health and Human Services Commission (HHSC) proposes to amend §354.1281, Benefits and Limitations, under Title 1, Part 15, Chapter 354, Subchapter A, Division 19, of the Texas Administrative Code, relating to services performed by a licensed psychological associate (LPA) under the direct supervision of a licensed psychologist.
Background and Justification
The Texas State Board of Examiners of Psychologists requires an LPA to work under the supervision of a licensed psychologist and does not allow an LPA to engage in independent practice. Currently, Texas Medicaid does not reimburse licensed psychologists for services provided by an LPA who works under the supervision of the psychologist and does not allow an LPA to enroll as a Medicaid provider.
Medicare allows reimbursement to clinical psychologists for services performed by an LPA under the psychologist's direct supervision. The Code of Federal Regulations (42 C.F.R. §410.71) states that services performed by an LPA are covered under Medicare if: the services are performed under the direct supervision of a licensed psychologist; the licensed psychologist is immediately available to provide assistance and direction throughout the time the service is being performed; and the LPA performing the service is an employee of either the licensed psychologist or the legal entity that employs the licensed psychologist.
The proposed new rule aligns Medicaid policy with Medicare by allowing a psychologist to be reimbursed for services performed by an LPA when the LPA is under the direct supervision of the licensed psychologist. The proposed rule also remains consistent with the Texas State Board of Examiners of Psychologists rules that prohibit an LPA from engaging in independent practice. Allowing Medicaid reimbursement for services provided by an LPA is expected to expand access to behavioral health services because it allows a new provider type to perform Medicaid reimbursable services.
Section-by-Section Summary
HHSC proposes to amend §354.1281 to allow LPA services performed under the direct supervision of a licensed psychologist as a benefit of the Texas Medicaid program when the following conditions are met:
The services are performed under the direct supervision of a licensed psychologist. The supervising psychologist must be in the same office, building, or facility when and where the service is provided and must be immediately available to furnish assistance and direction; and
The LPA performing the service is an employee of either the licensed psychologist or the legal entity that employs the licensed psychologist.
LPA services will be reimbursed to the supervising psychologist or the legal entity that employs the supervising psychologist at fees determined by HHSC. The methodology under which LPA services are reimbursed is set out in 1 TAC §355.8081, which is currently being amended to add LPA services.
Fiscal Note
Tom Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed rule amendment is in effect, there will be a fiscal impact to state government of $1,315,297 (SFY2010); $2,778,136 (SFY2011); $3,747,011 (SFY2012); $4,043,025 (SFY2013); $4,362,424 (SFY2014) as a result of allowing a psychologist to be reimbursed for services provided by an LPA under their direct supervision. 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 that are Medicaid providers. Providers will not be required to alter their business practices as a result of the rule. There are no significant other costs to persons who are required to comply with the proposed rule. 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 amendment is in effect, the public will benefit from the adoption of the section. The anticipated public benefit of enforcing the proposed rule will be increased access to behavioral health services.
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 JoAnne Talavera, Senior Policy Analyst, Medicaid/CHIP Division, Health and Human Services Commission, at P.O. Box 13247, H390, Austin, Texas 78711; by fax to (512) 249-3725; or by e-mail to joanne.talavera@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for Monday, April 27, 2009 at 9:00 a.m. to 11:00 a.m. in the John H. Winters Building, Public Hearing Room 125, located at 701 W. 51st Street, Austin, Texas 78751. Persons requiring further information, special assistance, or accommodations should contact Pamela Dunn at (512) 491-1488.
Statutory Authority
The amendment is proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.
The proposed amendment affects Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.
§354.1281.Benefits and Limitations.
(a) Subject to the specifications, conditions, requirements,
and limitations established by the Texas Health and Human Services
Commission (HHSC) or its designee, psychological counseling and services
[provided by a licensed psychologist] are covered.
[if the services:]
[(1) are within the psychologist's
scope of practice, as defined by state law; and]
[(2) would be covered by
the Texas Medical Assistance Program when they are provided by a licensed
physician (MD or DO).]
(b) To qualify for reimbursement the services must be provided by a:
(1) Licensed psychologist when the following conditions are met:
(A) The services are within the psychologist's scope of practice, as defined by state law; and
(B) The services would be covered by the Texas Medical Assistance Program when they are provided by a licensed physician (MD or DO).
(2) Licensed psychological associate (LPA) when the following conditions are met:
(A) The services are performed under the direct supervision of a licensed psychologist. The supervising psychologist must be in the same office, building, or facility when and where the service is provided and must be immediately available to furnish assistance and direction; and
(B) The LPA performing the service must be an employee of either the licensed psychologist or the legal entity that employs the licensed psychologist.
(c) [(b)] To be payable, the
services must be reasonable and medically [
psychologically] necessary as determined by HHSC [
or its designee].
[(c) The Texas Medical
Assistance Program does not reimburse for the services of a psychological
assistant working under the direction of a licensed psychologist.]
(d) Covered services provided by an LPA must be billed under the Texas Medical Assistance Program provider number of the supervising psychologist or the legal entity employing the supervising psychologist.
(e) [(d)] Licensed psychologists
who are employed by or remunerated by a physician, hospital, facility,
or other provider may not bill the Texas Medical Assistance Program
directly for psychologists' services if that billing would result
in duplicate payment for the same services. If the services are covered
and reimbursable by the program, payment may be made to the physician,
hospital, or other provider (if approved for participation in the
Texas Medical Assistance Program) who employs or reimburses the licensed
psychologist. The basis and amount of Medicaid reimbursement depends
on the services actually provided, who provided the services, and
the reimbursement methodology utilized by the Texas Medical Assistance
Program as appropriate for the services and provider(s) involved.
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 March 18, 2009.
TRD-200901114
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 3, 2009
For further information, please call: (512) 424-6900