PART 12. COMMISSION ON STATE EMERGENCY COMMUNICATIONS
CHAPTER 252. ADMINISTRATION
1 TAC §252.3
The Commission on State Emergency Communications
(CSEC) adopts new §252.3, concerning the administration of the
agency's sick leave pool, without changes to the proposed text as
published in the May 1, 2009, issue of the Texas
Register (34 TexReg 2645).
The new rule is intended to satisfy the requirements of Government
Code §661.002(c) that agencies "adopt rules and prescribe procedures
relating to the operation of the agency sick leave pool."
No comments were received regarding adoption of the proposed new rule.
The new rule is adopted pursuant to Health and Safety
Code §771.051 and Government Code §661.002.
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 July 14, 2009.
TRD-200902882
Patrick Tyler
General Counsel
Commission on State Emergency Communications
Effective date: August 3, 2009
Proposal publication date: May 1, 2009
For further information, please call: (512) 305-6930
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 5. PHYSICIAN AND PHYSICIAN ASSISTANT SERVICES
1 TAC §354.1060, §354.1062
The Texas Health and Human Services Commission (HHSC)
adopts new §354.1060, concerning Definitions, and amended §354.1062,
concerning Authorized Physician Services, in Title 1, Part 15, Chapter
354, Subchapter A, Division 5, Physician and Physician Assistant Services.
New §354.1060 is adopted without changes to the proposed text
as published in the January 23, 2009, issue of the Texas Register
(34 TexReg 401) and will
not be republished. The amendments to §354.1062 are adopted with
clarifying changes to the proposed text as published in the January
23, 2009, issue of the Texas Register (34
TexReg 401) and the text of the rule will be republished.
Background and Justification
Proposed new §354.1060 defines "direct supervision," "personal
supervision," and "substitute physician" as those terms relate to
physician supervision of other physicians in the context of an accredited
graduate medical education (GME) program and arrangements under which
one physician substitutes for another physician (e.g., in a locum
tenens arrangement).
The proposed amendments to §354.1062 clarify when a supervising
physician may bill Medicaid for services provided by resident physicians
in the context of a GME program and services provided by other professionals.
On adoption, the following non-substantive, technical clarifications
were made to §354.1062.
In the published proposed text, amended §354.1062(b) described
physician services and §354.1062(d) described physician delegated
services. On adoption, language from subsection (d) is moved under
subsection (b), subsection (d) is deleted, and subsequent adopted
subsections are relettered. This change is made to clarify that physician
delegated services are not limited or restricted to services only
delegated to physician assistants (PAs) and advanced practice nurses
(APNs). Authorized physician delegated services include services that
are delegated by the physician to any appropriately trained and qualified
personnel as described in the rules and laws of the Texas Medical
Board, as allowed by federal law.
Amended §354.1062(d) in the adopted text (which was §354.1062(e)
in the published proposed text) relates to billing for services provided
by a PA or APN. On adoption, this subsection is modified to clarify
that services provided by a PA or APN must be consistent with state
rules and laws and to include a reference to another rule that describes
special billing requirements for an APN who is also a certified registered
nurse anesthetist (CRNA).
Comments
The 30-day comment period ended February 23, 2009. During this
period, HHSC held a public hearing on February 17, 2009, and received
comments regarding amended §354.1062. A summary of the comments
and HHSC's responses follows.
Comment: The Texas Academy of Anesthesiologist Assistants (TAAA),
Texas Medical Association (TMA), Texas Pediatric Society (TPS), Texas
Academy of Family Physicians (TAFP), Coalition for Nurses in Advanced
Practice (CNAP), and Texas Society of Anesthesiologists (TSA) commented
that proposed §354.1062(d) was interpreted as too limiting and
restricting on the qualifications of persons to whom a physician may
delegate services. They commented that the Texas Medical Board rules
permit a physician to delegate services to any qualified non-physician
and not just to PAs and APNs; and that the delegation can occur in
any setting. Several of the commenters suggested a solution that combined
proposed subsection (d) into subsection (b) and deleted proposed subsection (d).
HHSC Response: HHSC agrees with the comment and agrees to combine
proposed subsection (d) into adopted subsection (b) and delete proposed
subsection (d). HHSC determined that this change to the proposed rule
was a clarification and not a substantive change.
Comment: TAAA and CNAP commented that they had participated in
the development of a previous version of §354.1062 and that the
previous version was approved by the Texas Medicaid - Medical Care
Advisory Committee (MCAC) on May 8, 2008; however, the version of
the rule that was published in the Texas Register
was significantly different from the rule approved
by the MCAC. Further, the Texas Association of Nurse Anesthetists
(TANA) commented that proposed §354.1062(d) and (e) should be
withdrawn and the version of these subsections as approved by the
MCAC on May 8, 2008, should be published for adoption by HHSC.
HHSC Response: HHSC acknowledges the comment but no changes were
made to the rule as a result of the comment. The version of the rule
that was published in the Texas Register was
presented at the HHSC Council meeting on November 6, 2008, subsequent
to the MCAC meeting on May 8, 2008.
Comment: CNAP commented that proposed §354.1062(d) indicates
a physician may only bill for services provided under the physician's
supervision and that this represents an additional burden and liability
for physicians that is not imposed by current law. Many services provided
by APNs are performed under the APN's own license and there is no
legal requirement for physician supervision. HHSC should either allow
physicians to bill for services of APNs with whom they work, or physicians
should not be allowed to bill.
HHSC Response: HHSC has agreed to clarify the rule in response
to a previous comment above. That clarification deletes proposed subsection
(d) and the adopted subsection (d) addresses services provided by
a PA or APN without a direct reference to supervision. The rule as
adopted defines physician services within adopted subsections (b)
- (e). Adopted subsection (b) describes services performed by the
physician and those medical acts delegated by the physician; and adopted
subsection (e) describes services provided by a PA or APN.
Comment: CNAP and TANA commented that proposed §354.1062(d)
conflicts with the Occupations Code §301.152(d) related to documentation
requirements for services provided by an APN, including a CRNA.
HHSC Response: HHSC has agreed to clarify the rule in response
to a previous comment above. That clarification deletes proposed §354.1062(d)
and the adopted §354.1062(d) addresses services provided by a
PA or APN (including a CRNA) without a direct reference to documentation
requirements.
Comment: TANA objects to proposed §354.1062(e) that requires
CRNA services be provided pursuant to protocols. TANA stated that
protocols are not required because CRNA services are within the scope
of their advanced practice license. TANA referenced several letters
addressing this issue from the Texas Board of Nursing. The Board of
Nursing also references a Texas Office of Attorney General Opinion
(JC-0117) related to this issue.
HHSC Response: HHSC agrees and has clarified adopted §354.1062(d),
which was §354.1062(e) in the proposed version of the rule. The
clarification removes the reference to protocols and inserts language
requiring that services be consistent with applicable rules and laws
Comment: TANA stated that proposed rule §354.1062(d) should
cross-reference rule §354.1301, which already addresses physician
billing for the services of a CRNA. TANA stated that because of the
unique billing for anesthesia services, CRNAs are the only type of
APN that must bill services as the performing provider. TANA believes
that this cross reference is "crucial" to make it clear that CRNA
services have special billing requirements.
HHSC Response: HHSC agrees that adding the reference to the related §354.1301
further clarifies the adopted §354.1062(e).
Comment: TAAA stated that the rule shows a preference for services
by CRNAs over services performed by anesthesiologist assistants.
HHSC Response: HHSC acknowledges the comment but no changes were
made to the rule as a result of the comment. The anesthesiologist
assistant profession is not a recognized profession in the Texas Occupations
Code and anesthesiologist assistants are not referenced in the rule.
The amendment and new rule are adopted under Texas Government
Code §531.033, which provides the Executive Commissioner of HHSC
with broad rulemaking authority; and 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.
§354.1062.Authorized Physician Services.
(a) This rule specifies the conditions under which
a physician may bill Texas Medicaid for covered services. Such conditions
include compliance with this rule as well as compliance with all applicable
federal and state laws, rules, regulations and policies relating to
covered services.
(b) Physician services. A physician may bill for reasonable
and medically necessary services that are within the scope of practice
of medicine or osteopathy as defined by state law. Eligible physician
services include those performed by the physician and those medical
acts delegated by the physician to qualified and properly trained
persons acting under the physician's supervision. Delegation and supervision
of medical services must be consistent with this chapter and the rules
and laws of the Texas Medical Board, and supervision of the delegated
medical act must be appropriately documented in the patient's chart.
A physician shall not bill the Texas Medicaid program for services
if that billing would result in duplicate payment for the same services.
(c) Physician supervising other physicians. A physician
supervising other physicians may bill when the supervision and services
are performed in the context of an accredited graduate medical education
program. Facilities and professional practices do not qualify for
reimbursement for services provided by resident physicians in an outpatient
setting unless the facility or professional practice is owned by,
or affiliated with, an accredited graduate medical education program.
(1) For all services billed to the Medicaid program,
the supervision must be medically appropriate, as described in this
rule, and provided to a resident physician performing a Medicaid-covered
service. The supervision must be either personal or direct. To qualify
for reimbursement, the medical record must clearly establish:
(A) The nature of the supervisory role of the billing
physician in the delivery of the services provided by the resident
physician; and
(B) That the supervision complies with the definition
of supervision applicable to the covered service, as defined in §354.1060
of this title (relating to Definitions).
(2) Personal supervision is required during the key
portions of all major surgeries and the key portions of all other
physician services billed to the Medicaid program if the immediate
supervision, participation, or intervention of the supervising physician
is medically prudent in order to assure the health and safety of the
patient. Physician services that require personal supervision may
include invasive procedures and evaluation and management services
that require complex medical decision making. Situations that require
personal supervision include those in which:
(A) The clinical condition of the patient is unstable
or will likely become unstable during, or as a result of, the planned
medical intervention; or
(B) The planned medical intervention, even under optimal
conditions, will result in medically reasonable risk for significant
morbidity or death following the service or procedure; or
(C) Deviation from expected technique at the time the
procedure or service is performed presents a medically reasonable,
causally-related, foreseeable risk to the patient's life or health.
(3) For surgical services, the supervising surgeon
is responsible for pre-operative, operative, and post-operative care
provided to the patient and billed to the Medicaid program. The supervising
surgeon, however, may delegate the pre- and post-operative care to
a resident if appropriate direct supervision, as defined in §354.1060
of this title, is provided.
(4) For all services that do not require personal supervision
and are billed to the Medicaid program, the supervising physician
must provide direct supervision. The supervising physician may not
provide direct supervision for an activity at the same time as providing
personal supervision for another activity, with the following exceptions.
(A) The supervising physician in the outpatient setting
may provide personal and direct supervision concurrently for residents
providing evaluation and management services; and
(B) A supervising surgeon or supervising anesthesiologist
may be involved in two concurrent anesthesia cases with residents.
The supervising surgeon or supervising anesthesiologist must be present
during all key portions of the procedure if the immediate supervision,
participation, or intervention of the supervising physician is medically
prudent in order to assure the health and safety of the patient.
(5) Supervision in the outpatient setting. A face-to-face
encounter between the physician providing direct supervision and the
patient is not required in the outpatient setting in the context of
a graduate medical education program. All other requirements for personal
or direct supervision in this division must be met for the services
to qualify for reimbursement. The supervising physician must document
that he/she:
(A) Reviewed the patient's history and physical examination;
(B) Confirmed or revised the patient's diagnosis;
(C) Determined the course of treatment to be followed;
(D) Assured that any needed supervision of interns
or residents was provided; and
(E) Confirmed that the documentation in the medical
record comports with the level of service billed.
(6) Supervision in the inpatient setting. A physician
who supervises other physicians in an inpatient setting must comply
with documentation requirements of paragraph (5)(A) - (E) of this
subsection and must document that he or she has completed a:
(A) Personal examination of the patient not later than
36 hours after the patient's admission and before the patient's discharge
and, as necessary, based on the patient's condition; and
(B) Face-to-face encounter with the patient on the
same day as any billed services provided by the resident physician.
(d) Services provided by a physician assistant or advanced
practice nurse. If the services are provided by a physician assistant
or advanced practice nurse, practicing within the scope of their license
and consistent with this chapter and with the rules and laws of the
Texas Medical Board and Texas Nursing Board, as applicable, the physician
services are covered. Services provided by a certified registered
nurse anesthetist must be billed as described in §354.1301 of
this title (relating to Certified Registered Nurse Anesthetists' Services).
(e) Substitute physician. A physician may bill for
the services of a substitute physician who sees patients in the billing
physician's practice under either a reciprocal or locum tenens arrangement.
To qualify for reimbursement, the billing physician and substitute
physician must comply with the following requirements:
(1) The substitute physician's name and address must
be documented on the claim.
(2) The substitute physician must be licensed to practice
in the state of Texas.
(3) Consistent with the requirements of §371.1615
and §371.1677 of this title (relating to Provider Responsibility
and the Obligation of All Health Care Providers Regarding Exclusion,
respectively), the substitute physician must not be on the Medicaid
or Title XX provider exclusion list.
(4) The time period for which a physician may bill
for the services of a substitute physician is limited to the following situations:
(A) When the billing physician is absent or unavailable
for reasons other than active duty as a member of a reserve component
of the U.S. Armed Forces, services provided by a substitute physician
after the 60th day must be provided by and billed under the substitute
physician's own Medicaid provider number.
(B) When the billing physician is absent or unavailable
due to active duty as a member of a reserve component of the U.S.
Armed Forces, the billing physician may bill for the services of a
substitute physician for a period of 60 days or a longer continuous
period during all of which the billing physician has been called or
ordered to active duty as a member of a reserve component of the Armed
Forces. Medicaid may reimburse the billing physician for services
provided by the substitute physician until the billing physician is
no longer on active duty as a member of a reserve component of the
Armed Forces.
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 July 16, 2009.
TRD-200902906
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 5, 2009
Proposal publication date: January 23, 2009
For further information, please call: (512) 424-6900
SUBCHAPTER A. COST DETERMINATION PROCESS
PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 355. REIMBURSEMENT RATES