Adopted Sections An agency may take final action on a section 30 days after a proposal has been published in the Texas Register. The section becomes effective 20 days after the agency files the correct document with the Texas Register, unless a later date is specified or unless a federal statute or regulation requires implementation of the action on shorter notice. If an agency adopts the section without any changes to the proposed text, only the preamble of the notice and statement of legal authority will be published. If an agency adopts the section with changes to the proposed text, the proposal will be republished with the changes. TITLE 1. ADMINISTRATION Part V. General Services Commission Chapter 121. Telecommunication Services 1 TAC sec.121.10 The General Services Commission adopts an amendment to sec.121.10 concerning the usage of TEX-AN, without changes to the proposed text as published in the December 6, 1991, issue of the Texas Register (16 TexReg 6981). The amendment is necessary to implement usage of the state's long distance telephone service by students of institutions of higher education. The amendment defines institutions of higher education, authorizes such institutions to offer TEX-AN to their students, and sets forth terms and conditions applicable to such use, including accounting and payment responsibilities. No comments were received regarding adoption of the amendment. The amendment is adopted under Texas Civil Statutes, Article 601b, Article 10, which provides the General Services Commission with the authority to promulgate rules to accomplish the purpose of Article 10. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 3, 1992. TRD-9203072 Judith Monaco Porras General Counsel General Services Commission Effective date: March 24, 1992 Proposal publication date: December 6, 1991 For further information, please call: (512) 463-3446 TITLE 25. HEALTH SERVICES Part I. Texas Department of Health Chapter 145. Long-Term Care Subchapter G. Standards for Nursing Homes That Cover Licensure and Medicaid Certification 25 TAC sec.145.111 (The Texas Register inadvertently omitted this document from the March 3, 1992 issue.) The Texas Department of Health (department) adopts an amendment to sec.145.111, concerning long-term care, with changes to the proposed text as published in the November 5, 1991, issue of the Texas Register (16 TexReg 6259). The department has also made some changes to the standards which are adopted by reference in sec.145.111. Section 145.111 covers standards for nursing homes jointly developed by the department and the Texas Department of Human Services (TDHS) that apply to licensure and to Medicaid certification. The standards are in TDHS rules in 40 TAC sec.sec.19.1-19.2107 which were recently published as adopted rules in the December 17, 1991, issue of the Texas Register (16 TexReg 7361). Accordingly, department rule sec.145.111 incorporates the TDHS standards adopted in 40 TAC sec.19.2107, including the amendments published in the December 17, 1991, issue of the Texas Register . The amendments provide the following: substantive clarification and consolidation of previously adopted sections; conformance to new federal regulations under the Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, and the Americans with Disabilities Act of 1990, Public Law 101-336; and conformance with Texas health care professionals ' practice/licensing acts. During the public comment period, the department received 30 comments to the proposed standards that included comments of a substantive nature as well as comments of an editorial and clarification nature. The department has responded individually to the substantive comments according to the section numbers of the TDHS standards. Changes made by the department to the proposed standards for the purpose of editorial or clarification change have not been addressed individually. Comment: Concerning sec.19.101(E), the definition of "verbal abuse" does not require intervention by the state authorities, but instead requires management intervention by the facility. The commenter opposed the definition, suggested that the definition be deleted, and further suggested that "verbal abuse" be redefined as "mental/psychological/verbal abuse," using the definition used for mental/psychological abuse. The commenter believes that this change should trigger an investigation when mental anguish is suspected from verbal abuse. ResFonse: The department disagrees and has made no change, for the following reasons. First, verbal abuse can be mental/psychological abuse, but not all mental/psychological abuse is verbal. The distinction is necessary when recommending and defending punitive actions. Second, allowing facility staff to determine when mental anguish is suspected from verbal abuse does not adequately protect the resident. There have been cases of alleged verbal abuse by administrators and directors of nurses. It is expecting too much to believe that such individuals would report themselves for causing mental anguish. Third, the definitions should remain unchanged because they were developed by a department committee on which the commenter was represented, and the definitions were approved by the department's Advisory Committee on Nursing Facility Affairs on which nursing facility resident advocates and the nursing home industry were represented. Finally, the definitions should remain unchanged so that they will conform with department's rules concerning the nurse;aide registry and competency program in 25 TAC sec.151.5. Comment: Concerning sec.19.204(m), as regards quarterly statements, the proposed amendment to the subsection is inconsistent with the United States Health Care Facility Administration's (HCFA) final rules published in Title 42, Code of Federal Regulations, sec.483.10(c)(4)(ii) because they require quarterly statements on request. Accordingly, .204(m) should not be changed until HCFA changes become effective on April 1, 1992. Response: The department concurs and has deleted the proposed change. Comment: Concerning sec.19.217(3), as regards facility responsibility (resident self-determination), there are many facility responsibilities in these requirements. This section should more clearly indicate that it primarily regards resident self-determination. Response: The department agrees and has added clarifying language. Comment: Concerning sec.19.217(3)(E), as regards facility responsibility (resident self-determination), the second sentence is too prescriptive. Many other ways exist to provide education on issues concerning advanced directives (i.e., brochures, family nights, speeches, newspaper, open houses, video tapes). Since HCFA has not published regulations implementing the Patient Self- Determination Act, the department should not prescribe how the Act can be implemented; instead, the department should allow facilities to use and innovative methods. Response: In the State Medicaid Manual, Transmittal 73, HCFA provides a number of interpretations to the new Patient Self-Determination Act which are included in the proposed rule. The phrase the department proposed, "this can be accomplished by," is not considered to be prescriptive because of the use of the word "can" instead of "must." However, to make this language appear even less prescriptive, the department has made a clarifying change. Comment: Concerning sec.19.217(3)(G), as regards facility responsibility (resident self-determination), the following requirement exceeds federal law: should an individual incapable of communication become capable, the information regarding advanced directives must be given to the individual. Accordingly, this requirement should be deleted. Response: HCFA's State Medicaid Manual, Transmittal 73, states that information regarding advanced directive must be given to such individuals. The department concurs with HCFA and has made no change. Comment: Concerning sec.19.217(3)(H), as regards facility responsibility (resident self-determination), this provision exceeds federal law and should be deleted. Response: HCFA's State Medicaid Manual, Transmittal 73, prescribes that if no one comes forward with a previously executed advanced directive, and the resident is incapable or otherwise unable to receive information or articulate whether he has executed an advanced directive, the facility must note that the individual was not able to receive information and was unable to communicate whether an advanced directive existed. The department has made no change. Comment: Concerning sec.19.217(3)(H), as regards facility responsibility (resident self-determination), the phrase "power of attorney" should be "durable power of attorney" because the former power is usually limited to financial matters. The commenter made the same comment concerning sec.19.219(d)(3). Response: The department concurs and has clarified sec.19.217(3)(H). Regarding sec.19.219(d)(3), it is important for facility staff to be aware that a power of attorney may or may not have a durable section for health care decisions. The word durable means the power of attorney for health care is in effect beyond the point that the principal loses competence or the ability to communicate. Comment: Concerning sec.19.401(a)(1), as regards resident behavior and facility practice, the wording "to prevent deterioration in any aspect of the resident's condition" is too general. Response: The department agrees and has deleted the words "any aspect of." Comment: Concerning sec.19.502(b)(4), as regards activities, the last sentence should be deleted because the message is already provided in subsection (b)(l). Response: The federal language, has completed an activity director training course approved by any state," may be misleading. Accordingly, leaving the language specifying that "TDHS and TDH do not approve courses" is necessary for clarity. The department has made no change. Comment: Concerning proposed sec.19.804(9)(A), as regards the director of nursing services, several commenters addressed issues related to what documentation is necessary to support a physician's order to "do not resuscitate." One commenter said that a durable power of attorney for health care is in effect only for a qualified resident." A qualified resident is one who has been certified by two physicians as having a terminal condition. A commenter noted that in many cases, an individual may indeed not be in a terminal condition, but a physician's order to "do not resuscitate" is not only appropriate but may be desired by the resident. A commenter suggested that a case in point was a s6-year old individual with no specified terminal condition who is incapable of communicating his desire to not be resuscitated or for whom the physician believes that a do not resuscitate" order is appropriate. Response: Because of the complexity of the law regarding this issue, the department has deleted paragraph (9) and will generally refer to the following existing rules in responding to comments (It was the department's original intent and the Requirements Coordination Subcommittee of the department's Advisory Committee on Nursing Facility Affairs to encapsulate several other rules currently in the requirements into one area for better understanding): All residents must receive the necessary care and services to attain or maintain the highest practicable physical well being as defined by and in accordance with the comprehensive assessment and plan of care (sec.19.701); residents have the right to refuse treatment (sec.19.203(g); all residents have the right to choose treatment, that is, the right to self determination, and the facility must protect and promote such rights (sec.19.201); to ensure that the protection of the rights of a resident adjudicated incompetent determined to be incapable of exercising his rights and responsibilities for medical reasons, the administrator, the physician, and the resident care staff have specific responsibilities for documenting (sec.19.219); supporting documentation must be present when the physician assigns away the individual's right to choose or refuse to be resuscitated just as there must be supporting documentation for the physician to assign away the individual's right to be free of physical and chemical restraints; the facility must have written policies relating to the care of residents in emergencies (sec.19.1922); and the facility must include the resident and/or representative in comprehensive care planning (sec.19.602). The remaining paragraphs have been renumbered. Comment: Concerning proposed sec.19.804(6)-(9), as regards the director of nursing services, these are the responsibilities of the charge nurse; therefore, they should be moved to sec.19.805. Response: These paragraphs may also apply to staff nurses, and the director of nurses is ultimately responsible for the functions, activities, and training of the entire nursing services staff. Accordingly, the department has not moved the responsibilities to sec.19.805; however, the department has deleted paragraph (9). The remaining paragraphs have been renumbered. Comment: Concerning proposed sec.19.804(10), as regards the director ofnursing services, and a registered nurse determining and pronouncing a person dead, can an registered nurse give telephone authorization if an licensed vocational nurse is taking vital signs? Response: Under adopted sec.19.804(9), the registered nurse may not "authorize" a licensed vocational nurse to pronounce death. If facility policy has been developed according to the law, a registered nurse may "pronounce death" over the phone if the policy so specifies such permission. There is nothing in the law or these requirements that prohibits such a pronouncement, if local authority does not prohibit it. Comment: Concerning sec.19.902(5)(B), as regards staffing (dietary), does this requirement eliminate any current food service supervisors? Response: No, this change is for clarification purposes only. Comment: Concerning sec.19.904(c)(2), as regards dietary consultant requirements, the dietary consultant should only be required to meet this requirement if it is indicated by the resident's needs. The phrase "if indicated by the resident's needs" should be added before the proposed wording. Response: The department agrees in part. The department believes that the Resident Assessment Instrument must be reviewed to determine what needs are present; however, the department concurs with inserting the requested language preceding the phrase "conduct of an in-depth nutritional assessment and resident counseling." Comment: Concerning sec.19.1002(5), as regards physician visits, the language is confusing regarding the exception for the physician not having to do a discharge summary when the resident is out of the facility temporarily for 30 days or less. Also, it is unclear about when the 20 days begin, and who notifies whom. Response: The department concurs and has clarified the section. Comment: Concerning sec.19.1004(2), as regards availability of physician for emergency care, would this paragraph make cardiopulmonary resuscitation (CPR) certification mandatory for licensed nursing staff since administering CPR is within the purview of a licensed nurse and would fall under the broad category of emergency procedures? Also, the wording "or as prescribed by a physician" leaves the door open for responsibilities far beyond the capability of the nursing facility. Response: The requirement specifies only that emergency procedures be carried out as needed by the resident. Licensed nurses receive CPR instructions when in training. It is the responsibility of individual nurses to be proficient in whatever techniques are required by their job descriptions. The need for recertification may be determined by the individual nurse and/or the facility policy. CPR recertification is not required, but may be provided as in-service education. Also, the word "prescribed" has been changed to "ordered" to more closely track other language regarding ongoing physician orders in a facility. The facility must not provide services for which facility staff are not prepared or capable of providing on a regular or emergency basis. However, if after reporting an emergency situation to a physician and he or she issues orders such as, "nothing by mouth," "elevate lower extremities," "compression dressing to wound," or any other action the physician deems safe to perform and that should be within the capabilities of nursing facility staff, then the facility staff must 'follow orders." Because a situation is an emergency does not change the protocol of following physician orders. Comment: Concerning sec.19.1101, as regards the provision of specialized rehabilitation services, the introductory sentence states that rehabilitation services must be provided or obtained for every resident admitted. This should be changed so that rehabilitative services are provided when the resident assessment/care plan indicates a need for therapy. Response: The same issue was raised in 1990 prior to the implementation of the new requirements. The department believes that the introductory sentence should track federal language as closely as possible, which it does. The section further provides that rehabilitative services are provided for the residents with an identified need for therapy. Accordingly, the department has made no change. Comment: Concerning sec.19.1304(b), as regards drug security, since there are additional items that could be stored in the medication storage room besides medications, the word only in the second sentence should be deleted. Response: The department concurs and has made the change. Comment: Concerning sec.19.1401(2)(E), as regards infection control, the use of the general term "screening" leaves the door open for all types of interpretations such as HIV screening, HBV, and HAV screening, etc. The language needs to be clarified. Response: The department agrees and has made the appropriate clarification. Comment: Concerning sec.19.1401(2)(E)(i), as regards infection control, only one physician should be required to make the decision for an employee to return to work. Response: The department agrees and has clarified the language. Comment: Concerning sec.19.1910(b), as regards clinical records, this section should specify other vital policies such as confidentiality, access to records, release of information and related charges for copies, record storage, record retention, the master signature legend, and file order of the chart (active, inactive, and discharged). Response: The department concurs that clarification of the meaning of "all areas of operation in the clinical record service" is needed and has made the appropriate clarification. Comment: Concerning sec.19.1910(e), as regards clinical records, the rule should specify who may authorize release of information in the case of a deceased resident. Response: The department adopts this subsection without change because the release of records, whether they are of a living or deceased resident, is covered by subsection (e)(2). Texas probate law specifies who may act and how they may act on behalf of a deceased resident. Comment: Concerning sec.l9.1911(1)(D)-(E), as regards the contents of the clinical record, this is confusing. Is the TDHS resident number the same as the medicaid claim number? Response: The "TDHS resident number should be the "medicaid claim number," and the "medicaid claim number should read medicare claim number." The department has made the correction. Comment: Concerning sec.19.1911(8), as regards the contents of the clinical record, the phrase "restorative potential should be changed to "discharge and rehabilitation potential, in order to be consistent with sec.19.1001(3)(D). Response: The department concurs and has made the change. Comment: Concerning sec.19.1912(e)(1), as regards additional clinical record service requirements, the clinical record can remain open for 30 days, but many times the facility staff will not know on the 20th day that a patient will not return, and a physician discharge summary is due. Response: The physician's discharge summary is due within 20 days of the physician's notification by the facility that the discharge has occurred. See the department's response to comment on sec.19.1002(5). The only change to the amendment to 25 TAC, sec.145.111 as proposed, is the effective date of the amendment. The Texas Health Care Association and several individuals commented. They generally supported the rules, but had questions, concerns, and recommendations for change. The amendment is adopted under the Health and Safety Code (Code), sec.242.037, which provides for the Texas Board of Health to adopt rules concerning the licensing of long term care facilities; sec.12.001, which provides the Texas Board of Health with the authority to adopt rules for the performance of every duty imposed by law on the Texas Board of Health, the Texas Department of Health, and the commissioner of health; and sec.222.0255, which provides the Texas Department of Health and the Texas Department of Human Services with the authority to jointly develop one set of standards for nursing homes that applies to licensure and the certification for participation in the medical assistant program under the Human Resources Code, Chapter 32, and to adopt by rules the standards and any amendments to them. sec.145.111. Standards for Nursing Home Jointly Developed by the Texas Department of Health and Texas Department of Human Services that apply to Licensure and to Medicaid Certification. (a) The Texas Department of Health adopts by reference the Texas Department of Human Services rules in 40 TAC sec. sec.19.1-19.2107, concerning long-term care nursing facility requirements for licensure and Medicaid certification as amended March 1992. (b) (No change.) This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on February 25, 1992. TRD-9202785 Robert A. MacLean, M.D. Deputy Commissioner Texas Department of Health Effective date: March 17, 1992 Proposal publication date: November 5, 1991 For further information, please call: (512) 458-7709 TITLE 40. SOCIAL SERVICES AND ASSISTANCE Part I. Texas Department of Human Services Chapter 3. Income Assistance Services Subchapter G. Resources The Texas Department of Human Services (DHS) adopts amendments to sec.sec.3. 704, 3.902, and 3.1003, concerning income and resources that are excluded and income deductions that are applicable in determining eligibility for the Food Stamp Program. The justification for the amendment to sec.3.704 is to comply with changes in the Mickey Leland Memorial Domestic Hunger Act. The amendment excludes resources of household members who receive Supplemental Security Income (SSI) or Aid to Families with Dependent Children (AFDC) Program benefits. The justification for the amendment to sec.3.902 is to comply with changes in the Food Stamp Act of 1977 and the Mickey Leland Memorial Domestic Hunger Act. The amendment resulting from changes in the Food Stamp Act excludes as income amounts of income necessary to maintain a Plan for Achieving Self- Support (PASS) account. The amendment resulting from the Hunger Act excludes any income which is designated by the school for educational expenses. Room and board are not considered educational expenses. The justification for the amendment to sec.3.1003 is to comply with the Mickey Leland Memorial Domestic Hunger Act. The amendment allows a standard shelter deduction for homeless households that incur a shelter expense. The shelter allowance is $128 per month. The amendments will function by extending to food stamp applicants and recipients new income and resource exclusions and deductions which will benefit households with SSI and AFDC recipients, PASS accounts, educational expenses, and homeless persons with shelter expenses. 40 TAC sec.3.704 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment is adopted in compliance with federal requirements effective February 1, 1992. sec.3.704. Types. (a)-(c) (No change.) (d) Food stamps. Exclusions from resources for food stamps are those stipulated in United States Code, sec.2014(g) and (j). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1992. TRD-9203119 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 For further information, please call: (512) 450-3765 Subchapter I. Income 40 TAC sec.3.902 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment is adopted in compliance with federal requirements effective February 1, 1992. sec.3.902. Types. (a)-(c) (No change.) (d) Food stamps. DHS excludes as income the types of income stipulated in 7 Code of Federal Regulations, sec.273.9(c) except for child support payments, educational assistance, and certain types of income of SSI recipients. DHS excludes educational assistance and income of SSI recipients as stipulated in United States Code sec.2014, Part 5(d) and (e). DHS does not exclude any portion of child support payments. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1992. TRD-9203121 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date:February 1, 1992 For further information, please call: (512) 450-3765 Subchapter J. Budgeting 40 TAC sec.3.1003 The amendment is adopted under the Human Resources Code, Title 2, Chapters 22 and 33, which provides the department with the authority to administer public and nutritional assistance programs. The amendment is adopted in compliance with federal requirements effective February 1, 1992. sec.3.1003. Deductions. (a) (No change.) (b) Food stamps. DHS allows deductions from income as stipulated in 7 Code of Federal Regulations, sec.273.9(d) with the following exception. Beginning October 1, 1990, DHS allows deductions for reimbursed self-arranged JOBS and transitional child care costs. Regarding a standard utility deduction, DHS allows a single deduction as specified in 7 Code of Federal Regulations, sec.273. 9(d)(6)(i)(B). Regarding a standard shelter deduction for homeless households, DHS allows the standard computed annually by the Food and Nutrition Service as specified in 7 Code of Federal Regulations, sec.273.9(d)(5)(i). This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1992. TRD-9203122 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: February 1, 1992 For further information, please call: (512) 450-3765 Chapter 29. Purchased Health Services Subchapter L. General Administration The Texas Department of Human Services (DHS) adopts an amendment to sec.29. 1102, adopts the repeal of sec.29.1104, and adopts new sec.29.1104. New sec.29.1104 is adopted with changes to the proposed text as published in the December 20, 1991, issue of the Texas Register (16 TexReg 7463). The amendment to sec.29.1102 and repeal of sec.29.1104 are adopted without changes to the proposed text, and will not be republished. The justification for the amendment, repeal, and new section is to implement a reimbursement methodology which is based upon historical payments adjusted to account for the adequacy of access to health care services, or the resources required by the economically efficient provider to provide such services. The repeal, amendment, and new section will function by implementing the new reimbursement methodology. During the public comment period, DHS received comments from the Texas Society of Anesthesiologists, Texas Medical Association, Anesthesiology Associates, Texas Society of Pathologists, Southeast Texas Emergency Physicians, Texas Chapter of American College of Emergency Physicians, University of Texas Health Science Center at Houston, Houston Society of Emergency Medicine, Bexar County Medical Society, a pathologist, a pediatric ophthalmologist, and several emergency physicians. A summary of the comments and DHS's responses follow. Comment: One commenter recommended that the Physician Payment Advisory Committee (PPAC) be established as a standing committee to the Medical Care Advisory Committee (MCAC). Response: DHS has made this recommendation to the MCAC. Comment: One commenter recommended the rapid implementation of primary care service fees and a four-year transition for other services. Response: DHS does not agree that the services in which fees are being reduced should be phased in over a four-year period. Given the fiscal constraints that DHS must operate within, the increases proposed for "primary care services" could not occur without some offsetting reductions in other types of services. Comment: One commenter recommended adoption of the Medicare conversion factor of $31.001 versus the proposed Texas Medicaid Reimbursement Methodology (TMRM) conversion factor to $26.873. Response: Given the fiscal constraints, the higher conversion factor is not an option available to DHS. Not only does the $31.001 Medicare conversion factor represent a national average which is subject to substantial adjustment for Texas, but the Medicare program entails a five-year phase-in period for all fee changes. Comment: One commenter recommended that the term "produce" be changed to "perform" in sec.29.1104(a)(1). Response: DHS has agreed to use the term "provide" instead of "produce," and has substituted the terminology in sec.29.1104(a)(1) and (2). Comment: One commenter recommended that the period for review in sec.29.1104(a) (1)(B) be changed from "at least every two years" to a quarterly review. Response: The current wording does not prohibit quarterly review; therefore, DHS is adopting the section as proposed. DHS will monitor the impact of these rule changes very closely and will provide to the PPAC periodic reports and recommend any necessary adjustments. Comment: One commenter recommended changing the definition of "access- based reimbursement fee" (ABRF) to the following: "Fees for individual services based upon historical payments or charges adjusted, as the department deems necessary, to meet the requirements of adequacy to health care services as defined in subparagraph (B)." Response: DHS believes this change is unnecessary since the proposed methodology provides DHS with considerable flexibility in setting individual fees. Comment: One commenter stated that access-based reimbursement fees (ABRF) are too broad and subject to great differences of opinions. The commenter recommended including additional specificity such as thresholds that would trigger access-based adjustments. Response: This section was worded specifically to provide DHS with the flexibility to respond to the unique needs of the Texas Medicaid population. DHS is in the process of developing specific measures of "adequacy of access" such as physician participation. However, DHS is reluctant to add the type of specificity suggested since it would ultimately limit DHS's ability to respond. Comment: One commenter recommended that DHS omit from sec.29.1104(a)(2)(D) any specific mention of the conversion factor of $26.873 since the rule would have to be amended when the conversion factor changes. Response: DHS is adopting the section with an added clarification that references the time period the initial conversion factor ($26.873) will be in effect. The rule provides for the method and timing of subsequent adjustments which will eliminate the need to amend the rule when the figure changes. Comment: One commenter recommended that adjustments to the conversion factor be made annually, if needed, and if funds are available. Section 29.1104(a)(2)(E) describes the biennium adjustment of the conversion factor. Response: This change is unnecessary. The existing wording allows for more frequent adjustments than on a biennial basis. Comment: One commenter expressed concern about the proposed reduction in the conversion factor from $17.94 to $13.94. The commenter recommended that a conversion factor of $15.32 be applied to all services, and the commenter provided DHS with an initial list of priority procedures. Another commenter recommended that DHS develop specialty differentials to enable a higher rate of reimbursement for those areas where the Medicaid population accounts for at least 60% of its total reimbursement. The commenter further recommended a conversion factor of $20.10 for anesthesiologists, development and application of pediatric modifiers, and retention of current fee profiles for Driscoll Children's Hospital pediatric surgeons. Response: DHS is currently analyzing these recommendations and intends to recommend to the PPAC that the anesthesiology conversion factor for certain obstetrical and surgical sterilization procedures be maintained at the existing conversion factor of $17.94. Once all of the various procedures have been analyzed, additional recommendations, if appropriate, will be presented to the PPAC. Comment: Several comments were received regarding the reimbursement rates for evaluation and management (E & M) services provided in an emergency room. Comments concerned the recommendation by the PPAC to deviate from the relative value unit determination offered by HCFA. Many commenters recommended that DHS adopt all of the relative value units developed by HCFA. Many commenters also recommended that sec.29.1104(a)(2)(A) be deleted because it does not clearly define "access-based reimbursement fees" nor does it clearly identify when TMRM may deviate from Medicare. These commenters recommended that DHS rely instead solely on the federal determination. Response: As with a number of pediatric, obstetric, and surgical procedures, DHS staff and the PPAC have not agreed with the reimbursement methodology recommended by HCFA and have opted to deviate from the federal determinations. In essence, HCFA has developed reimbursement fees which include a significant overhead component for emergency room physician services. HCFA has indicated to DHS staff that this portion of the federal reform is flawed and is likely to change. DHS's initial analysis confirms that the HCFA analysis has overstated overhead costs, at least as it pertains to the Texas health care system. When DHS has analyzed all of the various procedures, DHS will present to the PPAC additional recommendations, if appropriate. Comment: Two commenters cited a number of their frequently billed procedures which will receive substantial reductions under the TMRM as proposed. These commenters indicated that the reductions will result in these services not being offered to the Medicaid population. Response: When DHS has analyzed all of the various procedures, DHS will present to the PPAC additional recommendations, if appropriate. Comment: One commenter recommended maintaining specialty differentials. Response: Specialty differentials have always been an integral part of the Resource Based Relative Value System (that is, coronary surgery is generally not performed by a family practitioner and, therefore, the relative value units for this particular procedure have included a specialty valuation). The primary difference in the proposed system is that Medicaid (and Medicare) will no longer pay specialists differently for providing the "same" service (that is, reimbursement to an internist for a limited office visit for an established patient will be identical to that of a general or family practitioner). DHS received a number of comments which concerned matters that were outside the scope of the proposal, and these are not addressed in this preamble. 40 TAC sec.29.1102, sec.29.1104 The amendment and new section are adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. sec.29.1104. Texas Medicaid Reimbursement Methodology (TMRM). (a) Reimbursement for physicians and certain other practitioners. (1) Introduction. Except as otherwise specified, the TMRM for covered services provided by physicians and certain other practitioners employs a prospective payment system which is based upon the Texas Department of Human Services' (DHS's) determination of adequacy of access to health care services as described in this section, or the actual resources required by an economically efficient provider to provide each individual service. (A) There shall be no geographical or specialty reimbursement differential for individual services. (B) The fees for individual services will be reviewed at least every two years and will be based upon either: (i)i historical payments, with adjustments, to ensure adequate access to appropriate health care services; or (ii) actual resources required by an economically efficient provider to provide each individual service. (2) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise. (A) Access-based reimbursement fees (ABRF)-Fees for individual services based upon historical payments adjusted, where the department deems necessary, to account for deficiencies relating to the adequacy of access to health care services as defined in subparagraph (B) of this paragraph. (B) Adequacy of access-Measures of adequacy of access to health care services include, but are not limited to, the following determinations: (i) adequate participation in the Medicaid program by physicians and other practitioners; and/or (ii) the ability of the eligible Medicaid population to receive adequate health care services in an appropriate setting. (C) Resource-based reimbursement fees (RBRF)-Fees for individual services based upon DHS's determination of the resources required by an economically efficient provider to provide individual services. An RBRF is defined mathematically by the following formula: RBRF1 = (RVUw-1 + RVUo-1 + RVUm-1) * CF where, RBRF1 = Resource-Based Reimbursement Fee for Service 1 RVUw-1 = Relative Value Unit for Work for Service 1 RVUo-1 = Relative Value Unit for Overhead for Service 1 RVUm- 1 = Relative Value Unit for Malpractice for Service 1 CF = Conversion Factor (D) Conversion factor - The dollar amount by which the sum of the three cost component RVUs is multiplied in order to obtain a reimbursement fee for each individual service. The initial value of the conversion factor is $26.873 for fiscal years 1992 and 1993. The conversion factor will be updated based on the adjustments described in subparagraph (E) of this paragraph at the beginning of each state fiscal year biennium. DHS may, at its discretion, develop and apply multiple conversion factors for various classes of service such as obstetrics, pediatrics, general surgeries, and/or primary care services. (E) Conversion factor adjustments-The biennium adjustment of the conversion factor is composed of the following two components. (i) Inflation Adjustment-To account for general inflation, the conversion factor is adjusted by one-half of the forecasted rate of change of the implicit price deflator-personal consumption expenditures (IPD-PCE). To inflate the conversion factor for the prospective period, DHS uses the lowest feasible IPD-PCE forecast consistent with the forecasts of nationally recognized sources available to DHS at the time of preparation of the conversion factor(s). (ii) Access-based adjustment-Adjustments to the conversion factor may also be made to ensure adequacy of access as defined in subparagraph (B) of this paragraph. (F) Relative value units (RVUs)-The relative value assigned to each of the three individual components which comprise the cost of providing individual Medicaid services. The three cost components of each reimbursement fee are intended to reflect the work, overhead, and professional liability expense required to provide each individual service. The RVUs that are employed in the TMRM must, except as otherwise specified, be based upon the RVUs of the individual services as specified in the Medicare Fee Schedule. DHS will review any changes to or revisions of the various Medicare RVUs and, if applicable, DHS adopts the changes as part of the TMRM. (3) Calculating the payment amounts. The fee schedule that results from the TMRM must be composed of two separate components: (A) the access-based fees; and (B) the resource-based fees which must be composed of RVUs for the work, overhead, and malpractice components. The sum of these components must then be multiplied by the conversion factor to produce a reimbursement fee for each individual service. (b) Reimbursement for ambulance services. Ambulance services are reimbursed in accordance with a reasonable charge methodology. DHS or its designee defines and determines reasonable charges and payments based on reasonable charges as follows: (1) A reasonable charge is a charge for a specific service which is the lowest of: (A) the provider's customary charge for that service; (B) the prevailing charges made for similar services in the geographic locality; or (C) the actual charge of the eligible provider. (2) DHS or its designee uses a statistical base for making reasonable charge determinations. The statistical base is comprised of individual charges gathered from available sources, including Medicare (Title XVIII) and Medicaid (Title XIX). (3) Determination of reasonable charges, as set forth in this section and established by the Texas Board of Human Services, is made in accordance with applicable federal requirements. Payments for services provided must not exceed the Medicare allowable charges. (c) Reimbursement for clinical diagnostic laboratory services. Clinical diagnostic laboratory tests performed in a physician's office, by an independent laboratory, or by a hospital laboratory for its outpatients are reimbursed on the basis of the Medicare-established fee schedule. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1992. TRD-9203123 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1992 Proposal publication date: December 20, 1992 For further information, please call: (512) 450-3765 40 TAC sec.29.1104 The repeal is adopted under the Human Resources Code, Title 2, Chapters 22 and 32, which provides the department with the authority to administer public and medical assistance programs. This agency hereby certifies that the rule as adopted has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority. Issued in Austin, Texas, on March 4, 1992. TRD-9203124 Nancy Murphy Agency liaison, Policy and Document Support Texas Department of Human Services Effective date: April 1, 1992 Proposal publication date: December 20, 1991 For further information, please call: (512) 450-3765