PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 9. AMBULANCE SERVICES
The Texas Health and Human Services Commission (HHSC) adopts the amendments to 1 Texas Administrative Code (TAC) §354.1115, Authorized Ambulance Services, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4391) and will not be republished.
Background and Justification
Senate Bill 2424 of the 81st Legislature, Regular Session, 2009, requires the Health and Human Services Commission (HHSC) by rule to change the Medicaid authorization process for certain nonemergency ambulance services. Authorizations that are for a one-day nonemergency ambulance transport may be obtained on the same day or the next business day following the transport. If an authorization is requested for transport on multiple days, such as for a series of medical appointments, the authorization must be obtained prior to the first transport. HHSC must have staff available to evaluate requests for authorization for a minimum of 12 hours each day, excluding state holidays and weekends. Authorization requests that are granted must be effective for a period of not more than 180 days.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC did not receive any comments regarding the proposed amendment.
The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and 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.
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 August 10, 2009.
TRD-200903429
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts the repeal of 1 Texas Administrative Code (TAC) §354.1261, Benefits and Limitations for Birthing Center Services, and §354.1262, Conditions for Participation for Birthing Center Services, without changes to the proposal as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4393) and will not be republished.
Background and Justification
The repeal of §354.1261, Benefits and Limitations for Birthing Center Services, and §354.1262, Conditions for Participation for Birthing Center Services, is a result of a federal mandate from the Centers for Medicare and Medicaid Services (CMS) that instructed Texas to discontinue Medicaid payments directly to birthing centers for services provided by the facility. This repeal of the Medicaid health services rules and the related reimbursement rule for birthing center services, 1 TAC §355.8181, which appears elsewhere in this issue of the Texas Register, will bring HHSC into compliance with the federal mandate from CMS.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC did not receive any comments regarding the proposed repeal of the rules.
The repeals are adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and 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.
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 August 10, 2009.
TRD-200903430
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
SUBCHAPTER D. REIMBURSEMENT METHODOLOGY FOR INTERMEDIATE CARE FACILITIES FOR PERSONS WITH MENTAL RETARDATION (ICF/MR)
The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.457, Fiscal Accountability, under Title 1, Part 15, Chapter 355, Subchapter D, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4394) and will not be republished.
Background and Justification
Section 355.457 establishes the fiscal accountability process for the Intermediate Care Facilities for Persons with Mental Retardation (ICF/MR) program. HHSC, under its authority and responsibility to administer and implement rates, is updating this rule to formalize certain limitations on hours allowed to be reported by ICF/MR providers (owners and related parties). Rates for this program are based on modeled rates, which incorporate cost information from ICF/MR provider cost reports. A modeled rate is considered fully-funded when the model is updated with current cost report information that has been adjusted for inflation to the rate period.
Limitations on allowable hours for owners and related parties are necessary to ensure that cost reports reflect only hours and associated costs that are reasonable and necessary in the normal conduct of operations. The test of reasonableness includes the expectation that the provider seeks to minimize costs and that the amount expended does not exceed what a prudent and cost-conscious provider would pay for a given item or service. In determining the reasonableness of a given cost, the restraints or requirements imposed by arm's-length bargaining and the actions that a prudent person would take in similar circumstances are considered. Since related-party transactions are not constrained by the requirements imposed by arm's-length bargaining, additional tools are necessary to ensure that reported related-party hours are reasonable.
Currently, this rule specifies that allowable hours for owners and related parties are limited to the lesser of the actual hours worked or the hours for a comparable direct-care staff person assumed in the fully-funded model. The rule amendment codifies current practice by adding language that results in a less stringent limitation on the determination of allowable owner and related-party hours.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC received no comments regarding the proposed amendments to §355.457.
The amendment is adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties; 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 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.
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 August 10, 2009.
TRD-200903431
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
1 TAC §§355.502, 355.503, 355.505, 355.507, 355.513
The Texas Health and Human Services Commission (HHSC) adopts new §355.502, Reimbursement Methodology for Professional Services in Home and Community-Based Services Waivers, and new §355.513, Reimbursement Methodology for the Deaf-Blind with Multiple Disabilities Waiver Program, under Title 1 of the Texas Administrative Code (TAC), Part 15, Chapter 355. HHSC also adopts amended §355.503, Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs; §355.505, Reimbursement Methodology for the Community Living Assistance and Support Services Waiver Program; and §355.507, Reimbursement Methodology for the Medically Dependent Children Program, under 1 TAC, Part 15, Chapter 355. Sections 355.502, 355.505 and 355.513 are adopted without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4397) and will not be republished. Sections 355.503 and 355.507 are adopted with changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4397). The text of the rules will be republished.
Background and Justification
HHSC concurrently adopts the repeal of §355.9022, Reimbursement Methodology for Community-Based Services Provided to People Who Are Deaf-Blind with Multiple Disabilities (DBMD). As a result of this repeal, certain parts of that rule's language is moved to new §355.513 to allow easier public access to the rules, as Subchapter E contains most of the community program rules. New §355.513 also adds a reimbursement methodology for rates for requisition fees in DBMD to provide payments for the cost of acquiring adaptive aids and minor home modifications. Requisition fees are currently not reimbursed in the DBMD program but are reimbursed in other §1915(c) waiver programs. The adoption of the repeal of §355.9022 is contemporaneously adopted elsewhere in this issue of the Texas Register.
The definitions for professional services (nursing, physical, occupational and speech therapy, behavioral supports, dietary services and audiology) in the various Department of Aging and Disability Services (DADS) §1915(c) waiver programs, including Community Based Alternatives (CBA), Community Living Assistance and Support Services (CLASS), Consolidated Waiver Program (CWP), Home and Community-Based Services (HCS) waiver, Texas Home Living (TxHmL) waiver, Medically Dependent Children Program (MDCP), and DBMD, are identical. However, the rates vary: CBA, CLASS, CWP, MDCP and DBMD use one set of rates and HCS and TxHmL use another set.
The current difference in nursing rates between HCS and TxHmL and the remaining DADS §1915(c) waiver programs was justified in the past because the billing guidelines for CBA, CLASS, CWP, MDCP, and DBMD differed from those for HCS and TxHmL. DADS is revising the HCS and TxHmL nursing billing guidelines to match the CBA, CLASS, CWP, MDCP and DBMD guidelines effective September 1, 2009. When data become available for HCS and TxHmL under the new billing guidelines, nursing rates will be calculated using data from all §1915(c) waiver program cost reports.
The difference in rates for other (non-nursing) professional services is due to the lack of robust cost data on these services in CBA, CLASS, CWP, DBMD, and MDCP. The vast majority of units of service for these services are provided in HCS and TxHmL. As a result of using the HCS and TxHmL database to set rates for the non-nursing professional services in CBA, CLASS, CWP, and DBMD, the rates for these services will increase to match the rates for HCS and TxHmL.
New §355.502 and §355.513, and the amendments to §§355.503, 355.505, and 355.507 will give HHSC the authority to combine allowable costs per unit for identical professional services in all DADS §1915(c) waiver programs into a single database for use in determining rates for these services. These rules will move HHSC closer to achieving its goal of standardizing professional service rates in community-based programs.
The amendment to §355.505 adds a reimbursement methodology for Day Activity and Health Services (DAHS.) This will allow DADS to implement DAHS as an option in CLASS.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC received comments regarding the proposed amendment to §355.503 and §355.507. A summary of the comments relating to the proposed rules and HHSC's responses follow:
Comment concerning §355.503. The commenter recommended that HHSC retain the reference to the Integrated Care Management (ICM) waiver program in the title of §355.503. The ICM waiver program will remain in effect until such time it is deemed appropriate to discontinue the waiver and transfer the participants to other §1915(c) waivers.
Response: HHSC is revising the rule in response to this comment.
Comment concerning §355.507(c): The commenter recommended that HHSC add a reference to the reimbursement methodology for personal assistance services in MDCP to §355.507(c). Personal assistance services are available in MDCP with or without delegation by a registered nurse (RN.) The rate for personal assistance services with delegation by an RN is modeled based on a different reimbursement methodology than the rate for personal assistance services without delegation by an RN. The current rules only reference the reimbursement methodology used for modeling the rate for personal assistance services without delegation.
Response: HHSC is revising the rule to correctly describe current practice.
The amendments and new rules are adopted under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the 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 the Texas Government Code §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.
§355.503.Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs.
(a) General requirements. The Texas Health and Human Services Commission (HHSC) applies the general principles of cost determination as specified in §355.101 of this title (relating to Introduction). Texas Medicaid contracted providers will be reimbursed for waiver services provided to individuals who meet the criteria for alternatives to nursing facility care. Additionally, Texas Medicaid contracted providers will be reimbursed for a pre-enrollment assessment of potential waiver participants. The pre-enrollment assessment covers care planning for the participant and is reimbursed by a one-time administrative expense fee which is not included in the waiver services but will be paid from Medicaid administrative funds.
(b) Other sources of cost information. If HHSC has determined that there is not sufficient reliable cost report data from which to determine reimbursements and reimbursement ceilings for waiver services, reimbursements and reimbursement ceilings will be developed by using data from surveys; cost report data from other similar programs, consultation with other service providers or professionals experienced in delivering contracted services; and other sources.
(c) Waiver reimbursement determination. Recommended reimbursements are determined in the following manner:
(1) Unit of service reimbursement. Reimbursement for personal assistance services and in-home respite care services, and cost per unit of service for nursing services provided by a registered nurse (RN), nursing services provided by a licensed vocational nurse (LVN), physical therapy, occupational therapy, and speech pathology will be determined on a fee-for-service basis in the following manner:
(A) Total allowable costs for each provider will be determined by analyzing the allowable historical costs reported on the cost report.
(B) Total allowable costs are reduced by the amount of the pre-enrollment expense fee and requisition fee revenues accrued for the reporting period.
(C) Each provider's total reported allowable costs, excluding depreciation and mortgage interest, are projected from the historical cost-reporting period to the prospective reimbursement period as described in §355.108 of this title (relating to Determination of Inflation Indices). The prospective reimbursement period is the period of time that the reimbursement is expected to be in effect.
(D) Payroll taxes and employee benefits are allocated to each salary line item on the cost report on a pro rata basis based on the portion of that salary line item to the amount of total salary expense for the appropriate group of staff. Employee benefits will be charged to a specific salary line item if the benefits are reported separately. The allocated payroll taxes are Federal Insurance Contributions Act (FICA) or Social Security, Medicare Contributions, Workers' Compensation Insurance (WCI), the Federal Unemployment Tax Act (FUTA), and the Texas Unemployment Compensation Act (TUCA).
(E) Allowable administrative and facility costs are allocated or spread to each waiver service cost component on a pro rata basis based on the portion of each waiver service's units of service to the amount of total waiver units of service.
(F) For nursing services provided by an RN, nursing services provided by an LVN, physical therapy, occupational therapy, speech pathology, and in-home respite care services, an allowable cost per unit of service is calculated for each contracted provider cost report for each service. The allowable cost per unit of service, for each contracted provider cost report is multiplied by 1.044. This adjusted allowable cost per unit of service may be combined into an array with the allowable cost per unit of service of similar services provided by other programs in determining rates for these services in accordance with §355.502 of this title (relating to Reimbursement Methodology for Professional Services in Home and Community-Based Services Waivers).
(G) For personal assistance services, two cost areas are created:
(i) The attendant cost area includes salaries, wages, benefits, and mileage reimbursement calculated as specified in §355.112 of this title (relating to Attendant Compensation Rate Enhancement).
(ii) Another attendant cost area is created which includes the other personal attendant services costs not included in subparagraph (G)(i) of this paragraph as determined in subparagraphs (A) - (E) of this paragraph. An allowable cost per unit of service is determined for each contracted provider cost report for the other attendant cost area. The allowable cost per unit of service for each contracted provider cost report are arrayed. The units of service for each contracted provider cost report in the array are summed until the median unit of service is reached. The corresponding expense to the median unit of service is determined and is multiplied by 1.044.
(iii) The attendant cost area and the other attendant cost area are summed to determine the personal assistance services cost per unit of service.
(2) Per day reimbursement.
(A) The reimbursement for Adult Foster Care (AFC) and out-of-home respite care will be determined as a per day reimbursement using a method based on modeled projected expenses which are developed by using data from surveys; cost report data from other similar programs, consultation with other service providers or professionals experienced in delivering contracted services; and other sources. The room and board payments for AFC Services are not covered in these reimbursements and will be paid to providers from the client's Supplemental Security Income, less a personal needs allowance.
(B) The reimbursement for Assisted Living/Residential Care (AL/RC) will be determined as a per day reimbursement in accordance with §355.509(a) - (c)(2)(F)(iii) of this title (relating to Reimbursement Methodology for Residential Care). The per day reimbursement for attendant care will be determined, based upon client need for attendant care into six levels of care. A total reimbursement amount will be calculated and the proposed reimbursement is equal to the total reimbursement less the client's room and board payments. The room and board payment is paid to the provider by the client from the client's Supplemental Security Income (SSI), less a personal needs allowance. When the SSI is increased or decreased by the Federal Social Security Administration, the reimbursement for AL/RC will be adjusted in amounts equal to the increase or decrease in SSI received by clients.
(C) The reimbursement for out-of-home respite care provided in a Nursing Facility will be based on the amount determined for the Nursing Facility case mix class into which the CBA participant is classified.
(D) The reimbursement for Personal Care III will be composed of two rate components, one for the direct care cost center and one for the non-direct care cost center.
(i) Direct care costs. The rate component for the direct care cost center will be determined by modeling the cost of the minimum required staffing for the Personal Care III setting, as specified by the Department of Aging and Disability Services, and using staff costs and other statistics from the most recently audited cost reports from providers delivering similar care.
(ii) Non-direct care costs. The rate component for the non-direct care cost center will be equal to the non-attendant portion of the non-apartment assisted living rate per day for non-participants in the Attendant Compensation Rate Enhancement. Providers receiving the Personal Care III rate are not eligible to participate in the Attendant Compensation Rate Enhancement and receive direct care add-on's to the Personal Care III rates.
(3) Monthly reimbursement ceilings. The reimbursement for Emergency Response Services will be determined as monthly reimbursement ceiling, based on the ceiling amount determined in accordance with §355.510 of this title (relating to Reimbursement Methodology for Emergency Response Services (ERS)). The reimbursement for Home-Delivered Meals will be determined on a per meal basis, based on the ceiling amount determined in accordance with §355.511 of this title (relating to Reimbursement Methodology for Home-Delivered Meals).
(4) Requisition fees. Requisition fees are reimbursements paid to the CBA home and community support services contracted providers for their efforts in acquiring adaptive aids and minor home modifications for CBA participants. Reimbursement for adaptive aids and minor home modifications will vary based on the actual cost of the adaptive aid and minor home modification. Reimbursements are determined using a method based on modeled projected expenses which are developed by using data from surveys; cost report data from similar programs; consultation with other service providers and/or professionals experienced in delivering contracted services; and/or other sources.
(5) Pre-enrollment expense fee. Reimbursement for pre-enrollment assessment is determined using a method based on modeled projected expenses that are developed by using data from surveys; cost report data from other similar programs; consultation with other service providers and/or professionals experienced in delivering contracted services; and other sources.
(6) Exceptions to the reimbursement determination methodology. HHSC may adjust reimbursement if new legislation, regulations, or economic factors affect costs, according to §355.109 of this title (relating to Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors Affect Costs).
(d) Authority to determine reimbursement. The authority to determine reimbursement is specified in §355.101 of this title (relating to Introduction).
(e) Reporting of cost.
(1) Cost reporting guidelines. If HHSC requires a cost report for any waiver service in this program, providers must follow the cost-reporting guidelines as specified in §355.105 of this title (relating to General Reporting and Documentation Requirements, Methods, and Procedures).
(2) Excused from submission of cost reports. If required by HHSC, all contracted providers must submit a cost report unless the number of days between the date the first Texas Department of Aging and Disability Services (DADS) client received services and the provider's fiscal year end is 30 days or fewer. The provider may be excused from submitting a cost report if circumstances beyond the control of the provider make cost-report completion impossible, such as the loss of records due to natural disasters or removal of records from the provider's custody by any regulatory agency. An AL/RC provider may also be excused from submitting a cost report if the total number of days serving AL/RC or Residential Care residents is 366 or fewer during its fiscal year. Requests to be excused from submitting a cost report must be received by HHSC before the due date of the cost report.
(3) Number of cost reports to be submitted. Contracted providers are required to submit one cost report per legal entity if all contracts under the legal entity participate in the attendant compensation rate enhancement in accordance with §355.112 of this title (relating to Attendant Compensation Rate Enhancement). Contracted providers who operate both contracts that are participating in the attendant compensation rate enhancement program and contracts that are not participating in the attendant compensation rate enhancement program must file two separate cost reports per legal entity, one report for the contracts that are participating in the attendant compensation rate enhancement program and one cost report for the contracts that are not participating in the attendant compensation rate enhancement.
(4) Reporting and verification of allowable cost.
(A) Providers are responsible for reporting only allowable costs on the cost report, except where cost report instructions indicate that other costs are to be reported in specific lines or sections. Only allowable cost information is used to determine recommended reimbursements. HHSC excludes from reimbursement determination any unallowable expenses included in the cost report and makes the appropriate adjustments to expenses and other information reported by providers; the purpose is to ensure that the database reflects costs and other information which are necessary for the provision of services, and are consistent with federal and state regulations.
(B) Individual cost reports may not be included in the database used for reimbursement determination if:
(i) there is reasonable doubt as to the accuracy or allowability of a significant part of the information reported; or
(ii) an auditor determines that reported costs are not verifiable.
(C) When material pertinent to proposed reimbursements is made available to the public, the material will include the number of cost reports eliminated from reimbursement determination for the reason stated in subparagraph (B)(i) of this paragraph.
(5) Allowable and unallowable costs. Providers must follow the guidelines in determining whether a cost is allowable or unallowable as specified in §355.102 and §355.103 of this title (relating to General Principles of Allowable and Unallowable Costs, and Specifications for Allowable and Unallowable Costs), in addition to the following.
(A) Client room and board expenses are not allowable, except for those related to respite care.
(B) The actual cost of adaptive aids and home modifications are not allowable for cost reporting purposes. Allowable labor costs associated with acquiring adaptive aids and home modifications should be reported in the cost report. Any item purchased for participants in this program and reimbursed through a voucher payment system is unallowable for cost reporting purposes. Refer to §355.103(17)(K) of this title (relating to Specifications for Allowable and Unallowable Costs).
(f) Reporting revenue. Revenues must be reported on the cost report in accordance with §355.104 of this title (relating to Revenues).
(g) Reviews and field audits of cost reports. Desk reviews or field audits are performed on cost reports for all contracted providers. The frequency and nature of the field audits are determined by HHSC to ensure the fiscal integrity of the program. Desk reviews and field audits will be conducted in accordance with §355.106 of this title (relating to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports), and providers will be notified of the results of a desk review or a field audit in accordance with §355.107 of this title (relating to Notification of Exclusions and Adjustments). Providers may request an informal review and, if necessary, an administrative hearing to dispute an action taken under §355.110 of this title (relating to Informal Reviews and Formal Appeals).
§355.507.Reimbursement Methodology for the Medically Dependent Children Program.
(a) The Texas Health and Human Services Commission (HHSC) determines payment rates for qualified contracted providers for the provision of services in the Medically Dependent Children Program (MDCP). HHSC applies the general principles of cost determination as specified in §355.101 of this title (relating to Introduction).
(b) The rates for nursing services provided by a registered nurse (RN) or licensed vocational nurse (LVN) will be determined in accordance with §355.502 of this title (Relating to Reimbursement Methodology for Professional Services in Home and Community-Based Services Waivers).
(c) The rates for personal assistance services (PAS) without delegation of the service by an RN will be based upon the Community-Based Alternatives (CBA) approved rates for PAS in accordance with §355.503 of this title (relating to Reimbursement Methodology for the Community-Based Alternatives Waiver Program) and §355.112(l) of this title (relating to Attendant Compensation Rate Enhancement). The rates for PAS with delegation of the service by an RN will be based upon the Community-Based Alternatives (CBA) approved rates for PAS in accordance with §355.503 of this title (relating to Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs) and the add-on payment for the highest level of attendant compensation rate enhancement in accordance with §355.112(n) of this title (relating to Attendant Compensation Rate Enhancement).
(d) The rate ceiling for camp services will be equivalent to the Community Living Assistance and Support Services direct service agency (CLASS DSA) out-of-home respite rate. Actual payments for this service will be the lesser of the rate ceiling or the actual cost of the camp.
(e) Facility-based respite care rates are determined on a 24-hour basis. The rates for facility-based respite care are calculated at 77 percent of the daily nursing facility base rates by level of care. The base rates used in this calculation do not include nursing facility rate add-ons.
(f) The following sections of this title will apply to cost reports or surveys required to obtain the necessary information to determine new payment rates: §355.102 of this title (relating to General Principles of Allowable and Unallowable Costs), §355.103 of this title (relating to Specifications for Allowable and Unallowable Costs), §355.104 of this title (relating to Revenues), §355.105 of this title (relating to General Reporting and Documentation Requirements, Methods, and Procedures), §355.106 of this title (relating to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports), §355.107 of this title (relating to Notification of Exclusions and Adjustments), §355.108 of this title (relating to Determination of Inflation Indices), §355.109 of this title (relating to Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors Affect Costs), §355.110 of this title (relating to Informal Reviews and Formal Appeals), and §355.111 of this title (relating to Administrative Contract Violations).
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 August 10, 2009.
TRD-200903432
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.722, Reporting Costs by Home and Community-based Services (HCS) Providers, under Title 1, Part 15, Chapter 355, Subchapter F, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4407) and will not be republished.
Background and Justification
Section 355.722 establishes the fiscal accountability process for the Home and Community-based Services (HCS) waiver program. HHSC, under its authority and responsibility to administer and implement rates, is updating this rule to formalize certain limitations on hours allowed to be reported by HCS providers for owners and related parties performing direct service activities. Rates for this program are based on modeled rates, which incorporate cost information from HCS provider cost reports. A modeled rate is considered fully funded when the model is updated with current cost report information that has been adjusted for inflation to the rate period.
Limitations on allowable hours for owners and related parties are necessary to ensure that cost reports reflect only hours and associated costs that are reasonable and necessary in the normal conduct of operations. The test of reasonableness includes the expectation that the provider seeks to minimize costs and that the amount expended does not exceed what a prudent and cost-conscious provider would pay for a given item or service. In determining the reasonableness of a given cost, the restraints or requirements imposed by length-length bargaining and the actions that a prudent person would take in similar circumstances are considered. Since related-party transactions are not constrained by the requirements imposed by length-length bargaining, additional tools are necessary to ensure that reported related-party hours are reasonable.
Currently, this rule specifies that allowable hours for owners and related parties are limited to the lesser of the actual hours worked or the hours for a comparable direct-care staff person assumed in the fully-funded model. The rule amendment codifies current practice, which differs from the current rule, by adding language that results in a less stringent limitation on the determination of allowable hours for owners and related parties performing direct-service activities.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC received no comments regarding the proposed amendments to §355.722.
The amendment is adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties; 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 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.
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 August 10, 2009.
TRD-200903433
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts new §355.725, Reimbursement Methodology for Professional Services and Requisition Fees for Home and Community-based Services (HCS) and amendments to §355.791, Reporting Costs and Reimbursement Methodology for the Texas Home Living (TxHmL) Program, under Title 1, Part 15, Chapter 355, Subchapter F, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4410) and will not be republished.
Background and Justification
New §355.725 establishes the reimbursement methodology for professional services and requisition fees for the Home and Community-based Services (HCS) program and gives HHSC the authority to combine allowable costs per unit of service for HCS professional services with allowable costs per unit of service for identical professional services from other DADS §1915(c) waiver programs into a single database for use in determining reimbursement rates for these services in accordance with new §355.502, Reimbursement Methodology for Professional Services in Home and Community-Based Services Waivers which is being published as adopted elsewhere in this issue of the Texas Register. Amendments to §355.791 give HHSC similar authority for the TxHmL waiver program. These changes move HHSC closer to achieving its goal of standardizing professional service rates in community based programs.
New §355.725 also provides a reimbursement methodology for payment rates for requisition fees in HCS to provide payments for the cost of acquiring adaptive aids and minor home modifications for consumers. Requisition fees are currently not reimbursed in the HCS program but are currently reimbursed in other §1915(c) waiver programs.
The amendment to §355.791 will adjust payment rates for TxHmL to comply with the 2010-11 General Appropriations Act (Article II, Health and Human Services, 81st Legislature, Regular Session, 2009) which appropriated general revenue funds for provider rate increases for this program to set TxHmL rates equal to HCS rates for similar services. As well, this amendment revises §355.791 to replace outdated references to the legacy Department of Mental Health and Mental Retardation (MHMR) with references to DADS and to indicate that failure to maintain accurate records will result in HHSC notifying DADS to place the TxHmL program provider on vendor hold. The current rule language requires both the TxHmL program provider and all waiver contracts to be placed on vendor hold.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC received no comments regarding proposed new §355.725 or the proposed amendments to §355.791.
The amendment and new rule are adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties; 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 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.
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 August 10, 2009.
TRD-200903434
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.7103, concerning Rate-Setting Methodology for 24-Hour Residential Child-Care Reimbursements, in its Reimbursement Rates Chapter, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4415) and will not be republished.
Background and Justification
The amendment outlines how the 24-Hour Residential Child-Care rates, effective September 1, 2009, through August 31, 2011, will be determined. It adjusts payment rates for the 24-Hour Residential Child-Care program to comply with the 2010-11 General Appropriations Act (Article II, Health and Human Services, 81st Legislature, Regular Session, 2009), which appropriated general revenue funds for provider rate increases for this program as follows:
For foster families, the payments effective September 1, 2009, through August 31, 2011, for each level of service will be equal to the minimum rate paid to foster families for that level of service in effect August 31, 2009, plus 3.33 percent.
For child placing agencies (CPAs), the rates effective September 1, 2009, through August 31, 2011, for each level of service will be equal to the rate paid to CPAs for that level of service in effect August 31, 2009, plus 2.41 percent, which is equivalent to a 1.33 percent increase for CPA retainage and a 3.33 percent increase in pass-through funds for foster families. The following facility types are included as CPAs: independent foster family/group homes; independent therapeutic foster family/group homes; independent habilitative foster family/group homes; and independent primary medical needs foster family/group homes.
For residential care facilities (RCFs), the rates effective September 1, 2009, through August 31, 2011, for each level of service will be equal to the rate paid to RCFs for that level of service in effect August 31, 2009, plus 9.30 percent.
For emergency shelters, the rate effective September 1, 2009, through August 31, 2011, will be equal to the rate in effect August 31, 2009, plus 8.68 percent.
For psychiatric step-down services, the rate effective September 1, 2009, through August 31, 2011, will be equal to the rate in effect on August 31, 2009.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC received no comments regarding the proposed amendments to §355.7103.
The amendment is adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the Commission's duties; Texas Government Code §531.055, which authorizes the Executive Commissioner to adopt rules for the operation and provision of health and human services by the health and human services agencies and to adopt or approve rates of payment required by law to be adopted or approved by a health and human services agency; and Human Resources Code §40.4004(c) and (d), which authorize the Executive Commissioner to consider fully all written and oral submissions to the DFPS Council about a proposed rule.
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 August 10, 2009.
TRD-200903435
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
DIVISION 4. MEDICAID HOSPITAL SERVICES
The Texas Health and Human Services Commission (HHSC) adopts the amendment to 1 TAC §355.8052, concerning Inpatient Hospital Reimbursement, without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4416) and will not be republished. The amendments update the Medicaid inpatient hospital reimbursement methodology for state fiscal year (FY) 2010 and remove references to FY 2009 rebasing.
Background and Justification
The amendment will change the Medicaid inpatient hospital reimbursement methodology within §355.8052 to remove references to FY 2009 rebasing, and to give HHSC the authority to rebase and proportionately adjust inpatient hospital payment division standard dollar amounts within current appropriations for payments during FY 2010 in accordance with the 2010-11 General Appropriations Act (Article II, Health and Human Services Commission, Rider 68, S.B. 1, 81st Legislature, Regular Session, 2009).
Rebasing inpatient hospital rates for FY 2009, provided for in the current version of §355.8052, was contingent on the federal Centers for Medicare and Medicaid Services (CMS) approving and HHSC implementing the Medicaid reform waiver. Because CMS has not approved HHSC's pending Medicaid reform waiver, HHSC will not rebase Medicaid inpatient hospital rates for FY 2009.
The payment division standard dollar amount (PDSDA) is a component of the Medicaid inpatient reimbursement formula for hospitals. The PDSDA is the weighted average dollar amount per claim calculated for all hospitals in a payment division, which is a grouping of hospital-specific standard dollar amounts (HSDA). The HSDA is based on each hospital's average cost per claim for a designated base year, adjusted by the case mix index and cost-of-living index.
HHSC amended §355.8052 to rebase and adjust PDSDAs during FY 2010 to be applied prospectively. For FY 2010, HHSC will rebase the PDSDAs for inpatient hospitals using a base year of federal fiscal year (FFY) 2008. The FFY 2008 base year will include the 6-month grace period through March 31, 2009. HHSC has elected to use the 12-month period of FFY 2008 to reflect the change to Medicare Severity Diagnosis Related Groups (DRG) that occurred in October 2007. HHSC will adjust PDSDAs proportionately for each hospital so that the resulting expenditures incurred using the recomputed PDSDAs are not higher than the funds appropriated to HHSC for this purpose. In addition, a few identified hospitals' current PDSDAs will be adjusted to correspond to current payment divisions, and these adjusted PDSDAs will be used in the proportional rebasing. This adjustment is intended to ensure that all hospitals are consistently reimbursed based on legislative guidance and HHSC policy and regulation.
Diagnosis Related Group (DRG) statistics (relative weight, mean length of stay, and day outlier threshold) are another component of the Medicaid inpatient hospital reimbursement formula. The proposed amendment gives HHSC the authority to update all DRG statistics for FY 2010 based on FFY 2008 base-year claims information. HHSC will implement the DRG update prospectively when it implements the rebased PDSDAs. HHSC is updating DRG statistics as part of the rebasing and to better reflect differences in the complexity of care.
The amendment also clarifies the sections of the rule related to the rates for new hospitals and hospital mergers. The amendment defines the duration of the new-hospital PDSDA as five years from the effective date of the new hospital PDSDA rate. The proposed amendment clarifies that for merged hospitals, the combined PDSDA, which results in one reimbursement rate for the merged hospitals, applies as of the date the Medicare program recognizes the merger. The amendment proposes additional methodologies for calculating merged hospital PDSDAs.
Comments
During the 30-day comment period, which ended August 2, 2009, written comments were received from the Texas Hospital Association (THA), Teaching Hospital of Texas (THOT), Hospital Corporation of America (HCA), and an individual. The rule was not changed in response to the comments received. A summary of the comments and responses follows.
Comment: One comment received was in favor of HHSC's decision to forgo the use of the FY 2006 DRG rate rebasing database and instead use a more recent base period that includes Medicare Severity Diagnosis Related Grouping (MS-DRG) assignments. However, the commenter expressed concern regarding the use of FFY 2008 versus using FY 2009 data. The preference expressed was to target the implementation of the revised inpatient hospital rates for FY 2011 using FY 2009 base year data.
Response: HHSC appreciates the comment received in support of using a more recent data period. However, HHSC is limited by time constraints related to the hospital cost report filing deadlines and the auditing of this data to determine the ratio of cost to charges (RCC), which would not allow the use of FY 2009 as the base year claims data. The use of FFY 2008 data avoids this limitation since hospitals have varying fiscal year ends and this time period will also allow more hospitals to have cost reports filed with data to include primary care case management (PCCM) information. The rule language was not changed in response to the comment.
Comment: The second comment received was in favor of HHSC's use of FFY 2008 as the basis for hospital standard dollar amounts (SDA) to bring individual hospitals' SDAs back in line with their audited cost. The commenter was not in favor of HHSC applying a reduction factor to the SDAs to keep overall expenditures at the current funding level.
Response: HHSC was limited by appropriations from the 81st Legislative Session to update the PDSDA to a more current cost basis and to remain within the current level of state expenditure. HHSC will determine the overall state fiscal impact of fully rebasing the hospitals' PDSDAs and then apply a pro rata reduction to all hospital's PDSDAs to maintain the current state expenditure level. The rule language was not changed in response to the comment.
Comment: The third comment received expressed concerns regarding the inclusion of the PCCM program claims and requested that HHSC provide hospitals with wide latitude in appealing these claims. Additionally, the commenter expressed a concern regarding the HHSC Office of Inspector General (HHSC-OIG) review of hospital claims and the resulting adjustment of the MS-DRG assignment. Texas hospitals disagree strongly with a high percentage of the adjustments made by the HHSC-OIG, due to the strict compliance with ICD-9-CM coding guidelines required under the Health Insurance Portability and Accountability Act (HIPAA). The commenter stated these post-review adjustments often occur after the six-month grace period has lapsed, and therefore are never reflected in the SDA rates and MS-DRG weights established by HHSC.
Response: HHSC is aware of the hospital industry apprehension with regards to the method and processes for the inclusion of the PCCM claims. HHSC believes that the inclusion of the PCCM claims will provide a better representation of each hospital's overall Medicaid cost of services. HHSC will work with the hospital industry on the overall approach to the use of the PCCM claims data and the impact to the hospitals' PDSDAs. The rule will not be changed regarding the hospital's request for review of claims for rebasing. The request for review of claims is related to mathematical errors and is not the process for appealing the adjudication of the claims payment. The appeal of the DRG assignment or reimbursement should be addressed by the individual hospital through the claims adjudication appeal process. The rule language was not changed in response to the comment.
Comment: The fourth comment received expressed concerns regarding the base year 6-month grace period for claim adjudication and the use of admission dates of service as the criteria for inclusion in the base year claims data. The commenter suggested changing from the admission date to the discharge date as the selection criteria. This change would result in a definitive end for all patients, and would therefore be equal and comparable for all facilities.
Response: HHSC will take the request under advisement for future rule changes, as the use of admission dates for inclusion in base year claims data was not proposed as a change in the published proposed rule. HHSC is proposing a change in the base year period from FY 2008 to FFY 2008 to allow for a full year of claims data based on the MS-DRG that was implemented October 1, 2007. The current claims system determines the DRG or MS-DRG assignment based on admission date. If the discharge date were used as the criteria for inclusion in the base year period, this could result in a number of the claims being included based on the DRG assignment versus the MS-DRG assignment. The DRG assignment would require the claims to be remapped to the MS-DRG assignment or excluded from the rebasing calculation. The use of discharge date as the selection criterion would not be feasible to implement due to time constraints that prevent changing claims system assignment of MS-DRG based on admission date. The rule language was not changed in response to the comment.
The amendment is adopted 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.
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 August 10, 2009.
TRD-200903436
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
1 TAC §§355.8061, 355.8063, 355.8068
The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8061, Payment for Hospital Services, and §355.8063, Reimbursement Methodology for Inpatient Hospital Services, and adds new §355.8068, Supplemental Payments to Certain Urban Hospitals, to consolidate and update the inpatient and outpatient supplemental payment rule language for eligible publicly-owned or -affiliated urban hospitals. The proposed amendments and new rule are adopted without changes to the proposed text as published in the June 19, 2009, issue of the Texas Register (34 TexReg 4067) and will not be republished.
Background and Justification
HHSC is combining the Medicaid inpatient and outpatient hospital supplemental payment methodologies from existing rules into one new comprehensive rule that will fully describe supplemental payments made to eligible publicly-owned or -affiliated urban hospitals. HHSC is updating the language in the new rule to better explain the complex processes used in urban hospital supplemental payments.
The proposed new rule also expands the number of publicly-owned or -affiliated urban hospitals that are eligible to receive Medicaid supplemental payments by updating the participation criteria. Currently, 11 hospitals receive Medicaid supplemental payments. New §355.8068 makes six additional public hospitals in counties with populations greater than 100,000 eligible for these payments.
HHSC will not make supplemental payments to any new hospital eligible under this rule on or after September 1, 2009, until the Medicaid State Plan Amendment has been approved by the Centers for Medicare and Medicaid Services (CMS).
HHSC is adopting these rules as published in the June 19, 2009 Texas Register. HHSC then plans to immediately publish changes to §355.8068 to adjust the timing basis for recognizing hospital charges and payments to align with the Disproportionate Share Hospital (DSH) program for the upcoming program year.
Comments
The 30-day comment period ended July 19, 2009. During this period, HHSC received two comments regarding proposed new §355.8068.
Tomball Regional Medical Center submitted a letter to HHSC indicating its support of the proposed changes and thanking the state for recognizing its role as an urban hospital in providing quality healthcare to the poor in Northwest Harris County. (Tomball Regional Medical Center is one of the six new urban hospitals that is eligible for the program based on the updated participation criteria in new §355.8068.) The Chief Executive Officer at Tomball, expressed his gratitude for the state allowing the new urban hospitals to participate in the Large Urban Upper Payment Limit (UPL) Program and stated this would enhance Tomball Regional Medical Center's ability to serve the Medicaid population in its service region. No actions were requested except to proceed promptly with adoption of the rule.
The Texas Hospital Association (THA) also submitted a letter to HHSC on the proposed rule changes. The Vice President of Healthcare Policy Analysis, indicated he had "no specific comments on detailed language contained in the rules" for this particular rule, but appreciates the opportunity to comment on proposed changes to hospital payment rules as "supplemental payments are vitally important to our Texas hospitals, and our association supports efforts by the agency (HHSC) to facilitate Medicaid supplemental payments to every Texas hospital." No actions were requested by THA.
The amendments and new rule are adopted 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; and the Texas Government Code §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.
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 August 10, 2009.
TRD-200903437
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: June 19, 2009
For further information, please call: (512) 424-6900
DIVISION 4. MEDICAID HOSPITAL SERVICES
The Texas Health and Human Services Commission (HHSC) adopts the repeal of 1 Texas Administrative Code (TAC) §355.8065, Additional Reimbursement to Disproportionate Share Hospitals and §355.8067, Disproportionate Share Hospital Reimbursement Methodology for State-Owned Teaching Hospitals and replaces them with new §355.8065, Disproportionate Share Hospital (DSH) Reimbursement Methodology. The rules are adopted without changes to the proposed text as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4425) and will not be republished.
Background and Justification
Hospitals participating in the Texas Medicaid program that meet the Disproportionate Share Hospital (DSH) program conditions of participation and that serve a disproportionate share of low-income patients are eligible for additional reimbursement through the DSH program. HHSC, as the Medicaid single state agency, establishes each hospital's eligibility for DSH reimbursement and the amount of reimbursement, as set out in new §355.8065.
The adopted new rule contains the following changes.
First, HHSC is combining pertinent language from existing §355.8065 and §355.8067 into new §355.8065. Current §355.8065 contains the DSH methodology for all hospitals other than state-owned teaching hospitals. Section 355.8067 contains the DSH reimbursement methodology for state-owned teaching hospitals. Language from both current rules will be included in new §355.8065 so that the qualification and payment methodologies for all DSH hospitals will be contained in one rule.
Second, the adopted new rule modifies the rule language from current §355.8065 to account for changes required with the adoption of the Centers for Medicare and Medicaid Services' (CMS) DSH audit rule published on December 19, 2008, in the Federal Register, Vol. 73, No. 245, made effective on January 19, 2009. The federal DSH audit rule incorporates new reporting requirements and audit requirements that states must adhere to in order to be eligible to receive federal DSH funds. Under the new federal DSH audit rule, an independent certified audit must be performed for each completed Medicaid State Plan rate year beginning with the 2005 DSH program year. The audits will determine whether HHSC computed hospital-specific DSH limits in accordance with the stricter DSH audit rule definitions and whether the payments made to any hospital exceeded the audited hospital-specific limits. Beginning with the 2011 DSH program year, HHSC will recoup DSH overpayments made to individual hospitals identified during the audit process and redistribute the recouped funds to other qualified DSH hospitals, if sufficient amounts of uncompensated care expenses are available for additional DSH payments.
Third, new §355.8065 does not include the language in current §355.8065(f)(2), §355.8065(i), and §355.8067(j), which relate to Medicaid reform initiatives set out in Chapter 531, Texas Government Code, Subchapter N, Texas Health Opportunity Pool Trust Fund. HHSC is removing this language because the Medicaid reform initiatives were contingent on CMS's approval of Texas' Medicaid reform waiver, which is still pending.
Finally, HHSC adds language to clarify current practices and expands the definition section in new §355.8065 to better explain the complex processes used in the DSH reimbursement program.
Comments
During the 30-day comment period, which ended August 2, 2009, written comments were received from the Texas Hospital Association (THA), Teaching Hospitals of Texas (THOT), and Hospital Corporation of America (HCA). Comments were also received from two healthcare consultancies, BayCo Services, Inc., and Adelanto. The published rule was not changed in response to the comments received. A summary of the comments and responses follows.
Comment: HHSC received comments supporting its plan to change the data period used in the program from claims with an admission date in a state fiscal year to claims adjudicated in the state fiscal year for the 2010 program year and in the relevant DSH data year beginning in 2011 and thereafter.
Response: HHSC appreciates the support of this rule change and believes that the new rule language will facilitate quicker end-of-year claims reporting and validation of the data. The rule language was not changed in response to this comment.
Comment: HHSC received comments supporting its plan to redistribute the recoupment of DSH funds resulting from an overpayment.
Response: HHSC appreciates the support of this rule change and believes that the new rule language will benefit HHSC as well as the provider community. The rule language was not changed in response to this comment.
Comment: HHSC received comments expressing concern regarding validation of hospital data from the Medicaid managed care contractors. The proposed change places the burden on the hospitals to rectify data errors promulgated by the contractors in the data they report to HHSC. The comment suggests that this change will place an onus on hospitals to "correct" inaccurate data supplied by the Medicaid contractors and absolve the contractors from negative consequences for failing to do so. The commenter recommended imposing significant liquidated damages for contractors for failure to perform their responsibility adequately.
Response: Previously the onus was on HHSC to correct inaccurate data, when the responsibility for the accuracy of the data and the resolution of data problems lies between the hospital and the managed care contractor. HHSC will take these comments under advisement when it develops provisions for liquidated damages for contractors. The rule language was not changed in response to this comment.
Comment: HHSC received comments criticizing added language that HHSC may recover the costs of federally required audits from non-state hospitals. The commenter believes the state and federal government should bear the costs of these audits.
Response: HHSC is concerned that the cost of an "independent audit," as required by the new federal DSH audit rule, will be a burden on the state and federal government. If there is not enough money appropriated for this expense, HHSC needs to have this in the rule to cover the expense to comply with the federal regulation. The rule language was not changed in response to this comment.
Comment: HHSC received comment regarding the hospital audit participation fee. The commenter suggested that the language in subsection (o)(1)(F) be either eliminated or changed to read: "Subject to legislative direction, HHSC may recover from audited non-state hospitals the costs of audits that are required by federal law."
Response: HHSC believes that it should have the ability to implement a fee if it is determined that the cost of the federal DSH audit creates too much burden on the state. If future legislative direction is received, HHSC will comply with the legislation; however, none has been received thus far. The rule language was not changed in response to this comment.
Comment: HHSC received comments concerning the requirement that merged hospitals submit the CMS tie-in notice prior to the start of the DSH program year. Hospitals often have to wait for CMS to send the notice, which can take a long time. One commenter suggested a one-year exception period for hospitals that submitted provider enrollment form CMS -855As to CMS prior to July 3, 2009, or that HHSC delay implementation of this section of the rule until October 1, 2010.
Response: HHSC appreciates these comments but believes that recognizing mergers during the DSH program year creates variability in payments to other DSH providers throughout the year and that this requirement will help to maintain a consistent payment schedule. Hospitals in the process of a merger can still apply for DSH and participate in DSH if they are found to be eligible, but their aggregate data from the two merged hospitals will not be considered during that particular DSH program year. The rule language was not changed in response to this comment.
Comment: HHSC received comments regarding allotment of available DSH funds. The commenters are concerned about the allocation of federal DSH funds over the next ten years, and that the state's policy of reimbursing state hospitals up to their limits first will diminish the remaining funds available to non-state hospitals and institutions for mental disease (IMDs). One commenter recommended that HHSC consider increasing the weighting factors that are applied to the data for certain non-state hospitals to maintain the program's stability.
Response: Since future DSH allotments are not known at this time, changes in DSH allotments in the future can be addressed at that time. For DSH program years 2010 and 2011, HHSC is in receipt of additional stimulus funds for DSH, which are providing non-state hospitals more funds than in prior years. The rule language was not changed in response to this comment.
Comment: HHSC received comments that Medicaid patient days and charges should be included for Medicaid eligible clients, regardless of when the hospital billed for the client, or when the client became eligible. In some cases it takes over a year for a client to become eligible, and hospitals are unable to bill Medicaid due to the 365-day claim filing deadline.
Response: Claims that have a valid reason for delay such as determination of eligibility will be included in the following DSH data year. The rule language was not changed in response to this comment.
Comment: HHSC received a comment regarding the reporting of patient census days. Hospitals generally report patient days by hospital fiscal year. The commenter suggested that HHSC update reporting documents, including the annual survey and DSH application, to reflect applicable reporting periods and also recommended that HHSC collect the data from hospitals based on the federal fiscal year and not apportion hospital patient days based on hospital cost report data.
Response: HHSC will take this comment under advisement. The rule language was not changed in response to this comment.
Comment: HHSC received a comment requesting clarification on which categories of dual eligible clients should be included in subsection (b)(40)(A)(v), which deals with total Medicaid inpatient days for dual eligible patients.
Response: HHSC believes that the definition of "dually eligible patient" in subsection (b)(11) provides sufficient guidance. The rule language was not changed in response to this comment.
Comment: HHSC received comments that in subsection (b)(42), the definition of total state and local revenue should clarify that hospitals are able to include the state share of Children's Health Insurance Program payments as state and local revenue. One commenter stated that this is too narrow a definition according to their interpretation of the CMS Medicaid DSH rules governing the determination of a hospital's low income utilization rate.
Response: HHSC clarified this definition in modifications made in state fiscal year 2008 rule revisions. The rule language was not changed in response to this comment.
Comment: HHSC received comments related to subsections (b)(44) and (f)(2)(A) that hospitals will have a difficult time identifying which data to report for the uninsured, and which uninsured claims are adjudicated. The commenter suggested that HHSC provide additional information on reporting adjudicated claims through either the DSH survey or the DSHS Annual Survey.
Response: The published rule defines uninsured costs to be for patients "admitted" during the DSH data year. HHSC will define "uninsured costs" on its DSH application and annual survey and seek additional clarification from CMS on its interpretation of uninsured costs. The rule language was not changed in response to this comment.
Comment: HHSC received a comment related to hospitals' withdrawing from the DSH program and having to wait a full year before they can apply for DSH. The commenter suggests this section be removed.
Response: HHSC reduced the wait period from three years to one year and believes that this language is still needed to keep hospitals from trying to maximize their payments in UPL or DSH depending on the outcome of their hospital's data against other hospitals. The rule language was not changed in response to this comment.
Comment: HHSC received a comment regarding subsection (o), which details the independent audit process that has to be followed by HHSC each year. The hospital audit process will prove especially onerous on hospital systems as they often have their data audited on a system-wide basis as opposed to having individual hospitals within the system audited. As a result, audited financial information for an individual hospital may not be available. The commenter suggested subsection (o)(1) should read "Hospital financial statements and other auditable hospital accounting records that are readily available."
Response: HHSC will work with CMS and the independent auditors to ensure federal audit requirements are met and believes that greater understanding of hospital systems and best practices will emerge from this process. The rule language was not changed in response to this comment.
Comment: HHSC received a comment regarding the change in the treatment of federal natural disaster hospitals. The change is felt to be contrary to the original intent of the designation.
Response: HHSC continues to allow a hospital's data for the most recent year prior to the natural disaster. HHSC will calculate the one percent Medicaid minimum utilization rate, the interim hospital-specific limit, and the payment amount using the data from the DSH data year that is two years prior to the DSH program year. This language reflects the original intent of the designation as previously applied and as approved by CMS. The rule language was not changed in response to this comment.
Comment: HHSC received comment suggesting that HHSC clarify that DSH data year for DSH program year 2010 is state fiscal year 2008 and not the hospital's own fiscal year ending in 2008.
Response: HHSC believes the current rule language accurately describes the data sources used for the DSH 2010 program year. The rule language was not changed in response to this comment.
The repeals are adopted 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.
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 August 10, 2009.
TRD-200903438
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The new rule is adopted 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.
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 August 10, 2009.
TRD-200903439
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8081, Payments for Laboratory and X-ray Services, Radiation Therapy, Physical Therapists' Services, Physician Services, Podiatry Services, Chiropractic Services, Optometric Services, Ambulance Services, Dentists' Services, Psychologists' Services, and Licensed Psychological Associates' Services, under Title 1, Part 15, Chapter 355, Subchapter J, Division 5 of the Texas Administrative Code. The proposed rule is adopted without changes to the proposed text as published in the June 26, 2009, issue of the Texas Register (34 TexReg 4239) and will not be republished.
Background and Justification
The Texas State Board of Examiners of Psychologists requires a licensed psychological associate (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 a licensed 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 direct supervision of the clinical psychologist. The Code of Federal Regulations (42 CFR §410.71) states that the 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 adopted rule aligns Medicaid policy with Medicare by allowing a licensed psychologist to be reimbursed for services performed by an LPA when the LPA is under the direct supervision of the licensed psychologist, the psychologist is immediately available during the time the service is provided by the LPA, and the LPA is employed by the psychologist or the psychologist's employer. The supervising psychologist will be reimbursed 70 percent of the Medicaid fee that would be paid to a psychologist for the same service. The adopted 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.
No comments were received during the 30-day comment period.
The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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.
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 August 10, 2009.
TRD-200903440
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 31, 2009
Proposal publication date: June 26, 2009
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC) adopts the repeal of Medicaid reimbursement rule, §355.8181, Reimbursement (for birthing center services) under Title 1, Part 15, Chapter 355, Subchapter J, Division 10 of the Texas Administrative Code (TAC), without changes to the proposal as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4434) and will not be republished.
Background and Justification
The repeal of §355.8181, Reimbursement (for birthing center services), is a result of a federal mandate from the Centers for Medicare and Medicaid Services (CMS), which instructed Texas to discontinue Medicaid payments to birthing centers for services rendered in the facility. The repeal of the reimbursement rule for birthing center services and the related Medicaid health services rules, 1 TAC §354.1261 and §354.1262, which also appear in this issue of the Texas Register, will bring HHSC into compliance with the federal mandate from CMS.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC did not receive any comments regarding the proposed repeal of the rule.
The repeal is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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.
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 August 10, 2009.
TRD-200903441
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900
DIVISION 2. MEDICAID WAIVER PROGRAM FOR PEOPLE WITH DEAF-BLINDNESS AND MULTIPLE DISABILITIES
The Texas Health and Human Services Commission (HHSC) adopts the repeal of §355.9022, Reimbursement Methodology for Community-Based Services Provided to People Who Are Deaf-Blind with Multiple Disabilities, under Title 1 of the Texas Administrative Code (TAC), Part 15, Chapter 355, Subchapter M, Division 2, without changes to the proposal as published in the July 3, 2009, issue of the Texas Register (34 TexReg 4435) and will not be republished.
Background and Justification
Section 355.9022 establishes the rate methodology for the Deaf-Blind with Multiple Disabilities (DBMD) Waiver program operated by the Texas Department of Aging and Disability Services (DADS). HHSC, under its authority and responsibility to administer and implement rates, is repealing these rules and adopting rules for the DBMD rate methodology under 1 TAC, Part 15, Chapter 355, Subchapter E, Community Care for Aged and Disabled, with changes.
This repeal and the adoption of these rules in a different chapter will result in the DBMD reimbursement methodology rules being moved from Subchapter M, Miscellaneous Medicaid Programs, to Subchapter E, Community Care for Aged and Disabled, a subchapter which contains similar rules. This movement of the rules will make them more accessible to the public.
Comments
The 30-day comment period ended August 2, 2009. During this period, HHSC did not receive any comments regarding the proposed repeal of §355.9022.
The repeal is adopted 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.
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 August 10, 2009.
TRD-200903442
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: September 1, 2009
Proposal publication date: July 3, 2009
For further information, please call: (512) 424-6900