PART 2. TEXAS ETHICS COMMISSION
CHAPTER 6. ORGANIZATION AND ADMINISTRATION
The Texas Ethics Commission proposes an amendment to §6.5, relating to the Texas Ethics Commission's authority to adopt rules.
Currently under §6.5, the commission may not adopt a rule that in the opinion of the commission, directly addresses the subject of pending litigation known to the commission. The proposed amendment clarifies that the Texas Ethics Commission may adopt a rule that concerns the subject matter of a sworn complaint if the sworn complaint has not reached the formal hearing stage.
David A. Reisman, Executive Director, has determined that for each year of the first five years that the rule is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the rule as proposed. Mr. Reisman has also determined that the rule will have no local employment impact.
Mr. Reisman has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be clarity in what is required by the law.
Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because the rule does not apply to single businesses.
Mr. Reisman has further determined that there are no economic costs to persons required to comply with the rule.
The Texas Ethics Commission invites comments on the proposed rule from any member of the public. A written statement should be mailed or delivered to Natalia Luna Ashley, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed rule. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.
The amendment to §6.5 is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The amendment to §6.5 affects §571.062 of the Government Code.
§6.5.Authority to Adopt Rules.
(a) This title is adopted under the authority granted by the Act, the Administrative Procedure Act, and by any other law administered and enforced by the commission that establishes the commission's authority to adopt rules.
(b) The commission will not adopt a rule that in the opinion of the commission, directly addresses the subject matter of pending litigation known to the commission.
(c) For purposes of this section, the term litigation includes a sworn complaint proceeding before the commission only if the Government Code Subchapters C - H, Chapter 2001, apply to the proceeding.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 27, 2009.
TRD-200901566
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 463-5800
The Texas Ethics Commission proposes an amendment to §8.3, relating to the subject matter of an advisory opinion issued by the Texas Ethics Commission.
Currently under §8.3, the commission may not issue an advisory opinion that concerns the subject matter of pending litigation known to the commission. The proposed amendment clarifies that the Texas Ethics Commission may issue an advisory opinion that concerns the subject matter of a sworn complaint if the sworn complaint has not reached the formal hearing stage.
David A. Reisman, Executive Director, has determined that for each year of the first five years that the rule is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the rule as proposed. Mr. Reisman has also determined that the rule will have no local employment impact.
Mr. Reisman has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be clarity in what is required by the law.
Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because the rule does not apply to single businesses.
Mr. Reisman has further determined that there are no economic costs to persons required to comply with the rule.
The Texas Ethics Commission invites comments on the proposed rule from any member of the public. A written statement should be mailed or delivered to Natalia Luna Ashley, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed rule. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.
The amendment to §8.3 is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The amendment to §8.3 affects §571.091 of the Government Code.
§8.3.Subject of an Advisory Opinion.
(a) - (b) (No change.)
(c) For purposes of this section, the term litigation includes a sworn complaint proceeding before the commission only if the Government Code Subchapters C - H, Chapter 2001, apply to the proceeding.
(d) [(c)] An advisory opinion
cannot resolve a disputed question of fact.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 27, 2009.
TRD-200901567
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 463-5800
SUBCHAPTER A. GENERAL PROVISIONS
The Texas Ethics Commission (the commission) proposes new §§34.22 - 34.25, relating to the valuation of a ticket to an entertainment event, including a sporting event.
Chapter 305 of the Government Code contains a number of restrictions on expenditures by registered lobbyists. (Chapter 305 of the Government Code also contains a number of restrictions on the acceptance of lobby expenditures by state officers, state employees, immediate family and guests of state officers and employees, candidates for state offices, and officers-elect.) One of the restrictions is for entertainment. A registered lobbyist is subject to an aggregate $500 maximum annual expenditure limit for entertainment for an individual state officer or employee, or immediate family or guests invited by a state officer or employee.
A question that often arises is what standard should be used under the lobby law to determine the value of entertainment in the form of a ticket to an entertainment event, including a sporting event. At its April 2009 meeting, the commission voted to propose the following four rules consisting of two options to clarify the question: Option 1 consists of §34.22 and §34.23, and Option 2 consists of §34.24 and §34.25.
David A. Reisman, Executive Director, has determined that for each year of the first five years that the new rules are in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the new rules as proposed. Mr. Reisman has also determined that the new rules will have no local employment impact.
Mr. Reisman has also determined that for each year of the first five years the new rules are in effect, the anticipated public benefit will be clarity in what is required by the law.
Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because the new rules do not apply to single businesses.
Mr. Reisman has further determined that there are no economic costs to persons required to comply with the new rules.
The Texas Ethics Commission invites comments on the proposed new rules from any member of the public. A written statement should be mailed or delivered to Natalia Luna Ashley, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rules may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed rules. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.
The new §§34.22 - 34.25 are proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.
The new §§34.22 - 34.25 affect Chapter 305 of the Government Code.
§34.22.Valuation of Ticket (Option 1).
(a) For purposes of Chapter 305 of the Government Code and this chapter, and except as provided by §34.23 of this chapter (relating to Valuation of Ticket to a Suite (Option 1)):
(1) the value of a ticket to an entertainment event, including a sporting event, is the higher of:
(A) the face value of the ticket; or
(B) the amount paid for the ticket by the donor or a person on the donor's behalf and with the donor's consent or ratification.
(2) if the ticket has no face value, the value of the ticket is:
(A) the amount paid for the ticket by the donor or a person on the donor's behalf and with the donor's consent or ratification; or
(B) if no payment was made for the ticket by the donor or by a person on the donor's behalf and with the donor's consent or ratification, the fair market value at the time the ticket is accepted.
(b) Any reasonable method for determining the fair market value must factor in the value of a comparable ticket in an arm's length transaction.
§34.23.Valuation of Ticket to a Suite (Option 1).
For purposes of Chapter 305 of the Government Code and this chapter, the value of a ticket to an entertainment event, including a sporting event, obtained pursuant to a lease or other agreement for the right to use a suite and for the right to obtain tickets to the suite is as follows:
(1) if the ticket has a face value, the value of the ticket is calculated according to the following formula:
Figure: 1 TAC §34.23(1) (.pdf)
(2) if the ticket has no face value, the value of the ticket is calculated according to the formula in paragraph (1) of this section with the value of the highest priced ticket to the same suite with a face value used as the face value of the ticket.
(3) if none of the tickets to a suite have a face value, the value of a ticket is calculated according to the formula in paragraph (1) of this section with "$0" used as the face value of the ticket.
(4) if the number of events to which a person has the right to use the suite is not known, the number of events to which a person had the right to use the suite in the previous year may be used.
§34.24.Valuation of Ticket (Option 2).
For purposes of Chapter 305 of the Government Code and this chapter:
(1) the value of a ticket to an entertainment event, including a sporting event, is the higher of:
(A) the face value of the ticket; or
(B) the amount paid for the ticket by the donor or a person on the donor's behalf and with the donor's consent or ratification.
(2) if the ticket has no face value, the ticket has the same value as a ticket with a face value to the same event in the immediate proximity of the location of the ticket with no face value.
§34.25.Valuation of a Suite at an Entertainment Event (Option 2).
For purposes of Chapter 305 of the Government Code and this chapter, the value of a suite (including other similar hospitality venues) at an entertainment event obtained pursuant to a lease or other agreement for the right to use the suite is as follows:
(1) for purposes of this formula the value of a ticket shall be determined as provided in §34.24 of this chapter (relating to Valuation of Ticket (Option 2)).
Figure: 1 TAC §34.25(1) (.pdf)
(2) this allocated cost would then be added to any other food and beverage costs for the event and reported as part of the food and beverage cost for the particular event under consideration.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 24, 2009.
TRD-200901542
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 463-5800
CHAPTER 73. STATUTORY DOCUMENTS
SUBCHAPTER F. DISCLOSURE STATEMENT OF CONDITIONAL GIFTS
The Office of the Secretary of State proposes an amendment to 1 TAC §73.91, concerning disclosure of conditional gifts. Non-substantive changes are proposed to correct an outdated citation to the United States Code and capitalize a letter.
Two specific changes are proposed: (1) capitalization of the "f" in "federal" in two places where the word modifies "Department of Education;" and (2) correct an outdated citation to 20 United States Code 1145d to 20 United States Code 1011f.
FISCAL NOTE
Leigh A. Joseph, Attorney in the Business and Public Filings Division of the Office of the Secretary of State, has determined that for each year of the first five years that the section is in effect there will be no fiscal implications to state or local governments as a result of enforcing or administering the amendment as proposed.
PUBLIC BENEFIT AND SMALL BUSINESS COST NOTE
Ms. Joseph has determined that for each year of the first five years the section is in effect the public benefit anticipated as a result of enforcing or administering the section as proposed will be to view the rule as corrected. There will be no effect on small or micro businesses. There is no anticipated economic cost to persons who are required to comply with the proposed rule.
COMMENTS
Comments on the proposed amendment may be submitted in writing to: Leigh A. Joseph, Office of the Secretary of State, Corporations Section, P.O. Box 13697, Austin, Texas 78711-3697. Comments must be received not later than 12 noon, May 29, 2009.
STATUTORY AUTHORITY
This amendment is proposed under the authority of §51.573, Texas Education Code, which provides that the secretary of state shall prescribe the form and contents of a disclosure statement of conditional gifts in accordance with federal law.
Chapter 51, Texas Education Code, is affected by these rules.
§73.91.Disclosure Statement of Conditional Gifts from Foreign Persons.
(a) The governing board of an institution required
to file a statement disclosing a conditional gift from a foreign person
with the Office of the Secretary of State under Texas Education Code
Annotated, §51.572, shall file such statement in the same form
as that required to be filed with the Federal [federal]
Department of Education pursuant to 20 United States Code 1011f
[1145d].
(b) An institution shall make the filing required under
subsection (a) of this section with the Office of the Secretary of
State on the dates specified for the filing to be made with the
Federal [federal] Department of Education pursuant to 20
United States Code 1011f [1145d].
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 21, 2009.
TRD-200901503
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 463-5562
CHAPTER 155. RULES OF PROCEDURE
SUBCHAPTER D. JUDGES
The State Office of Administrative Hearings (SOAH) proposes an amendment to Subchapter D, Judges, §155.157, concerning Sanctioning Authority. The amendment is being proposed to clarify subsection (a) paragraph (1). Specifically, SOAH proposes to delete subparagraphs (D) and (E) of paragraph (1) and insert the wording deleted from those subparagraphs into two new paragraphs, (2) and (3), in subsection (a). SOAH proposes to make this amendment because as they currently read, subparagraphs (D) and (E) do not describe an improper motion as intended by paragraph (1), but instead describe a separate basis for sanctions.
Kerry D. Sullivan, General Counsel, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering it.
Mr. Sullivan also has determined that for the first five-year period the amended rule is in effect the public benefit anticipated as a result of the rule will be in clarifying the separate bases for SOAH judges to use sanctioning authority. There will be no effect on small businesses as a result of enforcing the rule. The proposed amendment would have no fiscal impact on small businesses, and there is no anticipated economic cost to individuals who are required to comply with the amended rule.
Written comments must be submitted within 30 days after publication of the proposed amendment in the Texas Register to Debra Anderson, Paralegal, State Office of Administrative Hearings, P.O. Box 13025, Austin, Texas 78711-3025, or by email at debra.anderson@soah.state.tx.us, or by facsimile to (512) 463-1576.
The amendment is proposed under Government Code, Chapter 2003, which authorizes the State Office of Administrative Hearings to conduct contested case hearings, Government Code, Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures, and §2003.050, which requires SOAH to adopt rules governing the procedures, including discovery procedures, that relate to a hearing conducted by SOAH.
The amendment affects Government Codes, Chapters 2001 and 2003.
§155.157.Sanctioning Authority.
(a) Authority to impose sanctions. For contested cases referred by an agency other than the PUC or the TCEQ, the judge has the authority to impose appropriate sanctions against a party or its representative for:
(1) filing a motion or pleading that is deemed by the judge to be groundless and brought:
(A) in bad faith;
(B) for the purpose of harassment; or
(C) for any other improper purpose, such as to cause unnecessary delay or needless increase in the cost of the proceeding;
(2) [(D)] abuse of the discovery
process in seeking, making, or resisting discovery; or
(3) [(E)] failure to obey an
order of the judge or a SOAH or referring agency rule.
(b) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 27, 2009.
TRD-200901568
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 475-4931
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS AND MENTAL RETARDATION
The Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.723, relating to Reimbursement Methodology for Home and Community-based Services (HCS) under Title 1, Part 15, Chapter 355, Subchapter F.
Background and Justification
This rule establishes the reimbursement methodology 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 describe how administrative and operations expenses are allocated to the various HCS service types, to delete language indicating that payment rates are determined annually and that state-operated HCS providers are reimbursed at cost, and to clarify the current reimbursement methodology.
The Department of Aging and Disability Services (DADS) provides individualized services and supports to persons with mental retardation who are living with their families, in their own homes, or in other community settings, such as small group homes, through the HCS Medicaid waiver program. In order to receive matching federal funds, this waiver requires approval from the federal Centers for Medicare and Medicaid Services (CMS).
Under the current HCS reimbursement methodology, a monthly "Administration and Operations" fee is used to reimburse providers for certain administration and operations expenses related to various HCS services. The fee is currently a flat $938.62 per consumer per month or approximately $11,263 per annum. In 2008, a waiver renewal application was submitted to CMS for the HCS waiver program which was set to expire August 31, 2008. During the renewal process, CMS informed HHSC that the manner in which the state reimbursed providers for administration and operations costs was not allowable under the Medicaid program. As a condition of the waiver approval, CMS instructed HHSC to develop and implement a new payment methodology that would not reimburse for administration and operations expenses as a separate monthly payment but would incorporate those costs into the rate for covered services. CMS instructed HHSC to have this new payment methodology in place by September 1, 2009.
In response to provider concerns regarding CMS's directive, HHSC submitted a letter to CMS in October 2008 requesting that CMS reconsider their decision to redistribute the monthly fee. CMS responded in January 2009 reaffirming their direction and requiring HHSC to submit a corrective action plan on how it intended to redistribute the monthly fee in order to maintain federal funding for the HCS waiver program.
To come into compliance with the CMS directive, HHSC formed a workgroup and gathered feedback on possible options to redistribute the monthly administration and operations fee to the individual services in the HCS waiver. HHSC considered the feedback from the workgroup and other interested parties. This proposed rule reflects the results of that feedback by proposing weighting factors for distributing these costs. While this proposed weighting methodology represents a reduction in the total administration and operations reimbursement for foster/companion care providers, it equalizes the percent of the total rate paid to foster/companion care and residential care providers for their administration and operations costs.
Language indicating how often payment rates are determined is being deleted because the frequency of rate determination is addressed in §355.101 of this title (relating to Introduction). Language indicating that state-operated HCS providers are reimbursed at cost is being deleted because there are currently no state-operated HCS providers and, if there were, they would be reimbursed in the same manner as all other HCS providers. Language concerning the reimbursement methodology is being modified to clarify the rate determination process.
Section-by-Section Summary
The proposed amendment to §355.723:
Revises subsection (a) to add a title and to delete language pertaining to the frequency of rate determination.
Deletes subsection (b) as an obsolete reference to state-operated HCS providers and renumbers subsequent subsections within this section.
Revises re-lettered subsection (b) to add a title and to indicate that only rates for residential support, supervised living, HCS foster/companion care and day habilitation vary by level of need.
Revises re-lettered subsection (c) to add a title and to list the cost components included in the HCS rates.
Adds subsection (d) which describes how the administration and operation cost component included in the recommended rate is calculated.
Deletes subsection (e) because the cost factors listed in this subsection are now listed as cost components in renumbered subsection (c) and renumbers subsequent subsections within this section. The list of cost components in renumbered subsection (c) is identical to the list of cost factors in deleted subsection (e) except that "non-personnel operation costs" have been replaced with "operation costs".
Revises re-lettered subsection (e) to add a title and replaces the term "factors" with the term "components".
Fiscal Note
Gordon E. Taylor, Chief Financial Officer for the Department of Aging and Disability Services, has determined that, during the first five-year period the amended rule is in effect, there will be no fiscal impact to state government because the amendment merely reallocates existing funds across services. While some providers will receive reduced Medicaid revenues under the amended rule and others will receive increased Medicaid revenues, overall, the amendment is budget neutral. The amended rule will not result in any fiscal implications for local health and human services agencies. There are no fiscal implications for local governments as a result of enforcing or administering the section.
Small Business and Micro-business Impact Analysis
HB 3430 requires the Office of the Attorney General (OAG) to prepare guidelines for state agencies to use when they prepare economic impact statements and flexibility analyses for proposed administrative rules.
Under Section 2006.002(c-1), Government Code, an agency must "consider, if consistent with the health, safety, and environmental and economic welfare of the state, using regulatory methods that will accomplish the objectives of applicable rules while minimizing adverse impacts on small business." The OAG guidelines declare the following:
An agency is not required to consider alternatives that, while possibly minimizing adverse impacts on small businesses would not be protective of the health, safety and environmental and economic welfare of the state. One common example would appear to fit within this exception. Agencies may be required to adopt as rules specific fees or specific standards and procedures under a legislative or federal mandate. In such a situation, the mandated language may be considered per se consistent with the health, safety, or environmental and economic welfare of the state and the agency need not consider other regulatory methods (source: Office of the Attorney General, "HB 3430 Small business Impact Final Guidelines," p. 7 (April 2008).
In a letter dated January 5, 2009, to Mr. Chris Traylor, Associate Commissioner for Medicaid/CHIP, CMS directed the Texas Health and Human Services Commission to develop a new rate methodology that would eliminate the separate Administration and Operations rate and move administrative costs into the base of each waiver service. Thus, this proposed amendment is a federal mandate and, in accordance with the OAG guidelines, the commission need not consider any other regulatory methods to achieve the intended administrative outcome.
Public Benefit
Carolyn Pratt, Director of Rate Analysis, has determined that, for each of the first five years the amendment is in effect, the expected public benefit is that the rate determination methodology for the HCS waiver program will be in compliance with CMS requirements thereby maintaining federal funding for this program. As well, obsolete and duplicative rule language will be eliminated and the reimbursement methodology will be clarified.
Takings Impact Assessment
HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
Regulatory Analysis
HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.
Public Hearing
HHSC will conduct a public hearing on May 27, 2009, at 9:30 a.m. to receive public comment on this proposed amendment. The public hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, located at 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring American with Disabilities Act (ADA) accommodation or auxiliary aids or services should contact Josie Wheatfall by calling (512) 491-1174, at least 72 hours prior to the hearing so appropriate arrangements can be made.
Public Comment
Questions about the content of this proposal may be directed to Pam McDonald in the HHSC Rate Analysis Department by telephone at (512) 491-1373. Written comments on the proposal may be submitted to Ms. McDonald by facsimile at (512) 491-1998, by e-mail to pam.mcdonald@hhsc.state.tx.us, or by mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200, within 30 days of publication of this proposal in the Texas Register.
Statutory Authority
The amendment is proposed 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 provides 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.
The amendment affects Texas Government Code Chapter 531 and Texas Human Resources Code Chapter 32. No other statutes, articles, or codes are affected by this proposal.
§355.723.Reimbursement Methodology for Home and Community-Based Services (HCS).
(a) Prospective payment rates. HHSC sets
payment rates to be paid prospectively to HCS providers
[annually. Rates are prospective in nature].
[(b) Reimbursement rates
apply to all non-state operated HCS providers uniformly by type of
service component provided and the individual's level-of-need. Reimbursements
for state-operated HCS providers are adjusted based on allowed costs
reported at the end of the state fiscal year, in accordance with this
subchapter. The state-operated cost adjustment will not exceed allowable
federal maximums.]
(b) [(c)] Levels of need. Rates
vary by level of need for residential support, supervised living,
HCS foster/companion care, and day habilitation. Rates do not
vary by level of need for any other HCS service.
(c) [(d)] Recommended rates. The
recommended modeled rates for each HCS service type and level
of need include the following cost components: direct service staffing
costs (wages for direct care, direct care supervisors, benefits, modeled
staffing ratios); facility costs (for respite care only); room and
board costs for overnight, out-of-home respite care; administration
and operation costs; and professional consultation and program support
costs. [are based on cost components deemed appropriate
for a provider.] The determination of these components is based
on cost reports submitted by HCS providers in accordance with §355.722
of this subchapter (relating to Reporting Costs by Home and Community-based
Services (HCS) Providers).
(d) Administration and operation cost component. The administration and operation cost component included in the recommended rate described in subsection (c) of this section for each HCS service type is determined as follows.
(1) Step 1. Determine total projected administration and operation costs and projected units of service by service type using cost reports submitted by HCS providers in accordance with §355.722 of this subchapter.
(2) Step 2. Determine projected weighted units of service for each HCS service type as follows:
(A) Supervised Living and Residential Support Services. Projected weighted units of service for Supervised Living and Residential Support Services equal projected Supervised Living and Residential Support units of service times a weight of 1.00;
(B) Day Habilitation. Projected weighted units of service for Day Habilitation equal projected Day Habilitation units of service times a weight of 0.25;
(C) Foster/Companion Care. Projected weighted units of service for Foster/Companion Care equal projected Foster/Companion Care units of service times a weight of 0.50;
(D) Supported Home Living. Projected weighted units of service for Supported Home Living equal projected Supported Home Living units of service times a weight of 0.30;
(E) Respite. Projected weighted units of service for Respite equal projected Respite units of service times a weight of 0.20;
(F) Supported Employment. Projected weighted units of service for Supported Employment equal projected Supported Employment units of service times a weight of 0.25;
(G) Behavioral Support. Projected weighted units of service for Behavioral Support equal projected Behavioral Support units of service times a weight of 0.18;
(H) Physical Therapy, Occupational Therapy, Speech Therapy and Audiology. Projected weighted units of service for Physical Therapy, Occupational Therapy, Speech Therapy and Audiology equal projected Physical Therapy, Occupational Therapy, Speech Therapy and Audiology units of service times a weight of 0.18;
(I) Social Work. Projected weighted units of service for Social Work equal projected Social Work units of service times a weight of 0.18;
(J) Nursing. Projected weighted units of service for Nursing equal projected Nursing units of service times a weight of 0.18.
(3) Step 3. Calculate total projected weighted units of service by summing the projected weighted units of service from paragraph (2)(A) - (J) of this subsection.
(4) Step 4. Calculate the percent of total administration and operation costs to be allocated to the service type by dividing the projected weighted units for the service type from paragraph (2) of this subsection by the total projected weighted units of service from paragraph (3) of this subsection.
(5) Step 5. Calculate the total administration and operation cost to be allocated to that service type by multiplying the percent of total administration and operation costs allocated to the service type from paragraph (4) of this subsection by the total administration and operation costs from paragraph (1) of this subsection.
(6) Step 6. Calculate the administration and operation cost component per unit of service for each HCS service type by dividing the total administration and operation cost to be allocated to that service type from paragraph (5) of this subsection by the projected units of service for that service type from paragraph (1) of this subsection.
[(e) The rates are derived
for each type of service and, when appropriate, each level-of-need
and include the following cost factors: direct service staffing costs
(wages for direct care, direct care supervisors, benefits, modeled
staffing ratios); non-personnel operating costs; facility costs (for
respite care only); room and board costs for overnight, out-of-home
respite care; administrative costs; and professional consultation
and program support costs.]
(e) [(f)] Refinement and
adjustment. Refinement/adjustment of the cost
components [factors
] and model assumptions will be considered, as appropriate, by HHSC.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 27, 2009.
TRD-200901560
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: June 7, 2009
For further information, please call: (512) 424-6900