25 TAC §§419.1 - 419.8
The Executive Commissioner of the Health and Human
Services Commission on behalf of the Department of State Health Services
(department) proposes new §§419.1 - 419.8, concerning the
youth empowerment services (YES) Medicaid waiver program.
BACKGROUND AND PURPOSE
The new rules are necessary to implement the pilot program, approved
by the federal government under the waiver provisions of the federal
Social Security Act, §1915(c), which is designed to prevent or
reduce institutionalization of children and adolescents with severe
emotional disturbance (SED), enable more flexibility in providing
intensive community-based services for children and adolescents with
SED, and provide support for their families by improving access to
services. The YES Medicaid waiver program will provide services to
children and adolescents that reside in Bexar and Travis Counties.
SECTION-BY-SECTION SUMMARY
New §419.1 sets forth the purpose and application of the subchapter; §419.2
defines a number of terms used throughout the subchapter; §419.3
describes the eligibility criteria that children or adolescents must
meet to participate in the waiver program; §419.4 states that
receipt of waiver program service may be dependent upon the child's
or adolescent's and/or legally authorized representative's ability
to make a co-payment; §419.5 requires that each waiver participant
have an individual plan of care (IPC) and describes the elements that
must be addressed in the IPC; §419.6 requires a transition plan
for adolescents who will become 19 years of age while receiving waiver
program services; §419.7 describes the requirements and application
process to be a provider of waiver program services; and §419.8
requires that the waiver program participant and legally authorized
representative be notified of the right to a fair hearing when services
are denied, reduced, suspended, or terminated.
FISCAL NOTE
Mike Maples, Assistant Commissioner, Mental Health and Substance
Abuse, has determined that for each year of the first five-year period
that the sections will be in effect, there will be no fiscal implications
to state or local governments as a result of enforcing and administering
the sections as proposed.
SMALL AND MICRO-BUSINESS ECONOMIC IMPACT STATEMENT
Mr. Maples, as required by Government Code, Chapter 2006, Agency
Actions Affecting Small Businesses, §2006.002, Adoption of Rules
with Adverse Economic Effect, has also determined that the proposed
rules will not have an adverse economic effect on small businesses
or micro-businesses. The program does not impose a regulatory burden
on businesses of any size. The rules permit implementation of a pilot
program to provide certain services to children and adolescents in
two Texas counties. There will be an "open enrollment" process for
providers who wish to participate in the program. Any qualified provider
may participate. Information about the program, including reimbursement
rates, will be made available to the public prior to the enrollment
process. However, because the services are reimbursed through Medicaid,
the sections may result in economic increase to waiver providers.
ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT
There are no anticipated economic costs to persons who are required
to comply with the sections as proposed. There is no anticipated negative
impact on local employment.
PUBLIC BENEFIT
In addition, Mr. Maples has determined that for each year of the
first five years the sections are in effect, the public will benefit
from adoption of the sections. The public benefit anticipated as a
result of enforcing or administering the sections is to prevent or
reduce institutionalization of children and adolescents with severe
emotional disturbance by providing more intensive community-based
services.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major
environmental rule" as defined by Government Code, §2001.0225.
"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
The department has determined that the proposed rules do 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, do not constitute
a taking under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposed rules may be submitted to Janet Fletcher,
Mental Health and Substance Abuse Division, Department of State Health
Services, P.O. Box 149347, Austin, Texas 78714-9347, (512) 419-2673,
or by email to janet.fletcher@dshs.state.tx.us. Comments will be accepted
for 30 days following publication of the proposal in the
Texas Register.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez,
certifies that the proposed rules have been reviewed by legal counsel
and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The proposed new sections are authorized by Government Code, §531.0055,
and Health and Safety Code, §1001.075, which authorize the Executive
Commissioner of the Health and Human Services Commission to adopt
rules and policies necessary for the operation and provision of health
and human services by the department and for the administration of
Health and Safety Code, Chapter 1001.
The proposed new sections affect the Government Code, Chapter 531;
and the Health and Safety Code, Chapter 1001.
§419.1.Purpose and Application.
(a) Purpose. The purpose of this subchapter is to implement
a pilot program, under the waiver provisions of the federal Social
Security Act, §1915(c), that prevents or reduces institutionalization
of children and adolescents with severe emotional disturbance (SED),
enables more flexibility in providing intensive community-based services
for children and adolescents with SED, and provides support for their
families by improving access to services.
(b) Application. The subchapter applies to:
(1) persons and entities that have a Medicaid provider
agreement to provide the waiver program services, as described in
this subchapter;
(2) local mental health authorities (LMHAs), which
have administrative responsibilities under the waiver program; and
(3) children and adolescents who are applicants for
or recipients of services under the waiver program.
§419.2.Definitions.
The following words and terms, when used in this subchapter,
shall have the following meanings, unless the context clearly indicates
otherwise.
(1) Adolescent--An individual who is at least 13 years
of age, but younger than 19 years of age.
(2) Assessment--A set of standardized assessment measures
used by the department to determine level of need as set forth in
the approved waiver.
(3) Child--An individual who is at least three years
of age, but younger than 13 years of age.
(4) Department--Department of State Health Services.
(5) LAR or legally authorized representative--A person
authorized by law to act on behalf of a child or adolescent with regard
to a matter described in this subchapter, including, but not limited
to, a parent, guardian, or managing conservator.
(6) LMHA or local mental health authority--An entity
designated as the local mental authority by the department in accordance
with the Health and Safety Code, §533.035(a).
(7) LPHA or licensed practitioner of the healing arts--A
person who is:
(A) a physician;
(B) a licensed professional counselor;
(C) a licensed clinical social worker;
(D) a licensed psychologist;
(E) an advanced practice nurse; or
(F) a licensed marriage and family therapist.
(8) Provider--Any person or legal entity that has an
agreement with the department and the single state Medicaid agency
to provide the waiver program services, as described in the approved waiver.
(9) SED or severe emotional disturbance--A child or
adolescent with a serious functional impairment or acute severe psychiatric
symptomatology as identified by the assessment.
(10) Waiver program--A Medicaid program that provides
waiver program services to a limited number of eligible children or
adolescents, in accordance with the provisions of the waiver approved
under the federal Social Security Act, §1915(c).
(11) Waiver program services--Medicaid community-based
services provided under the approved waiver program.
§419.3.Eligibility Criteria.
(a) To participate in the waiver program, the child
or adolescent must meet the following eligibility criteria:
(1) be eligible for Medicaid, under a Medicaid Eligibility
Group included in the approved waiver;
(2) live in a county included in the waiver program;
(3) be reasonably expected to qualify for inpatient
care under the Texas Medicaid inpatient psychiatric admission guidelines,
as defined in the approved waiver, in the absence of waiver services;
(4) reside:
(A) in a non-institutional setting with the child's
or adolescent's LAR; or
(B) in the child's or adolescent's own home or apartment,
if legally emancipated; and
(5) choose, or have the LAR choose, the waiver program
services as an alternative to care in an inpatient psychiatric facility,
in accordance with the provisions of the approved waiver.
(b) The participating child or adolescent must be determined
to meet the eligibility criteria in subsection (a) of this section
on an annual basis to continue in the waiver program.
(c) The department reserves the right to limit, in
each county, the number of eligible children or adolescents that may
participate in the waiver program, in accordance with the provisions
of the approved waiver.
§419.4.Co-payments.
The receipt of certain waiver program services may be dependent
upon the child's or adolescent's and/or LAR's ability to make a co-payment.
§419.5.Individual Plan of Care (IPC).
(a) Each child and adolescent determined eligible to
participate in the waiver program is assigned a mental health case
manager, subject to the rules in Chapter 412, Subchapter I, of this
title (relating to Mental Health Case Management Services). The mental
health case manager must coordinate with the child or adolescent,
LAR, waiver service providers and LMHA to develop an IPC that is based
upon the assessment.
(b) The initial IPC must be reviewed by an LPHA at
the LMHA that serves the geographic area of the participant's residence
before forwarding to the department for approval. The IPC must be
approved by the department before a provider can begin delivering
waiver program services. To be approved, the IPC must:
(1) promote the child's or adolescent's inclusion into
the community;
(2) protect the child's or adolescent's health and
welfare in the community;
(3) supplement, rather than replace, the child's or
adolescent's natural and other non-waiver program support systems
and resources;
(4) be designed to prevent or reduce the likelihood
of the child's or adolescent's admission to an inpatient psychiatric
facility; and
(5) be the most appropriate type and amount of services
to meet the child's or adolescent's needs.
(c) The IPC must be reviewed by an LPHA at the LMHA
and submitted to the department for approval as part of the annual
eligibility determination required under §419.3 of this title
(relating to Eligibility Criteria). Any recommended changes to the
IPC outside the annual review process must be approved by the department.
(d) To demonstrate that the waiver program services
specified in the IPC meet the requirements described in subsection
(b) of this section, the LMHA must submit the following to the department:
(1) an assessment of the child or adolescent that identifies
and supports the waiver program services included in the IPC; and
(2) documentation that natural and other non-waiver
program support systems and resources are unavailable or are insufficient
to meet the goals specified in the IPC.
(e) The department may conduct utilization review of
an IPC and supporting documentation at any time to determine if the
services specified in the IPC meet the requirements described in subsection
(b) of this section. If the department determines that one or more
of the services specified in the IPC do not meet the requirements
described in subsection (b) of this section, the department may deny,
reduce, or terminate the service, modify the IPC, and send written
notification to the child or adolescent, LAR, and the provider.
(f) In addition to the utilization review conducted
in accordance with subsection (e) of this section, the department
may conduct utilization review of the provider and the provision of
waiver program services at any time.
(g) The cost of implementing the IPC must be within
the cost ceiling identified by the department and the single state
Medicaid agency. For children and adolescents with service needs that
exceed the cost ceiling, the department has a process to ensure that
their needs are met, which includes examining third-party resources
or possible transition to other waiver programs or inpatient services.
§419.6.Transition Planning.
(a) The LMHA is required to develop a transition plan
for an adolescent who will become 19 years of age while receiving
services under the waiver program. The transition plan must be developed
at least six months prior to the month the adolescent becomes 19 years
of age to ensure that the adolescent is appropriately transitioned
to adult services.
(b) The transition plan, required under subsection
(a) of this section, must be developed in consultation with the adolescent
and, if appropriate, the LAR, as well as future providers, allowing
adequate time for a smooth transition of the adolescent into adult
services. The transition plan must include:
(1) a summary of the mental health community services
and treatment received while in the waiver program;
(2) the adolescent's current assessment, e.g., diagnosis,
medications, level of functioning, and unmet needs;
(3) information from the adolescent and the LAR, if
appropriate, regarding the adolescent's strengths, preferences for
mental health community services, and responsiveness to past interventions; and
(4) an IPC that:
(A) indicates the mental health and other community
services the adolescent will receive at the point of becoming 19 years
of age; and
(B) ensures the adolescent will be provided a smooth
transition to adult services.
§419.7.Provider Qualifications and Contracting.
In order to provide waiver program services, a provider must
be enrolled as an approved Medicaid provider in Texas and must enter
into a contract with the department and the single state Medicaid
agency. A prospective provider may request and submit an application
to provide waiver program services at any time. The application sets
forth the qualifications to be a provider.
§419.8.Right to Fair Hearing.
The LMHA or the department must notify the child or adolescent,
and LAR, of the right to a fair hearing, conducted in accordance with
the rules in 1 Texas Administrative Code, Chapter 357, Subchapter
A (relating to Uniform Fair Hearing Rules), under the following circumstances:
(1) a child or adolescent is denied participation in
the waiver program, unless the reason for the denial is the program
participation limit referred to in §419.3(c) of this title (relating
to Eligibility Criteria);
(2) a child or adolescent is denied continued participation
in the waiver program; or
(3) waiver program services for a child or adolescent
are denied, reduced, suspended, or terminated.
This agency hereby certifies that the proposal
has been reviewed by legal counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office of the Secretary of State on July 3, 2009.
TRD-200902764
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: August 16, 2009
For further information, please call: (512) 458-7111 x6972