40 TAC §19.2322
The Texas Department of Human Services (DHS) adopts an amendment
to §19.2322, with changes to the proposed text published in the November
14, 1997, issue of the
Texas Register
(22
TexReg 11063).
Justification for the amendment is to permit residents who entered facilities
under private pay and then become eligible for Medicaid to stay if no Medicaid
bed is available.
The amendment will function by complying with Senate Bill 190 passed by
the 75th Legislature that gives DHS the authority to develop procedures on
contracting for Medicaid-certified beds. This allows additional Medicaid-certified
beds to serve persons who were not eligible for Medicaid at the time they
were admitted to the facility, have resided in the facility for a minimum
of six months, and have become Medicaid eligible.
This rule was developed through a negotiated rulemaking process that was
announced by DHS under the title "Notice of Negotiated Rulemaking" in the
October 24, 1997, issue of the
Texas Register
(22 TexReg 10555). In that notice, DHS invited participation in a negotiated
rulemaking process for the purpose of reviewing issues relating to DHS's current
Medicaid nursing facility bed moratorium and to implement the recent legislative
mandate to decertify and reallocate unused nursing facility beds.
DHS and the negotiated rulemaking committee chose first to address the
issue of the needs of patients who have exhausted their financial resources.
Accordingly, the committee drafted the adopted rule set forth below at its
meeting on October 31, 1997.
A copy of the report of the negotiated rulemaking committee may be obtained
by contacting Deputy General Counsel Paul Leche, Texas Department of Human
Services W-615, P.O. Box 149030, Austin, Texas 78714-9030 or by phone at (512)
438-3106.
During the public comment period, the department received one positive
comment regarding the proposal from the Texas Association of Residential Care
Communities.
The department received the following comments from Living Centers of America.
Comment regarding §19.2322(d)(9)(C): "The certification of the bed
remains in effect until the resident's death or the resident is permanently
discharged from the facility." This could allow the certified facility to
add certified beds outside the existing rules, using spend down residents
to the facility's advantage. The rule should read, "until the resident's death
or permanent discharge from the facility or a Medicaid bed in the facility
becomes available."
Response: The department concurs and will change the current language.
Comment: "Will the spend-down waiver be granted if the Medicaid certified
beds are filled with non-Medicaid eligible residents, i.e.- Title XVIII residents
in dually certified beds, insurance or private pay residents, that can be
relocated to make room under the current rules?"
Response: Effective April 30, 1996, facilities contract for a certain number
of Medicaid beds, but specific Medicaid beds are not designated. At the time
of the annual survey the Medicaid census must be at or below its contracted
certified capacity. Therefore, Medicare, insurance, or private pay residents
do not have to be moved for the facility to accept another Medicaid resident.
Comment: What are the enforcement procedures and penalties for obtaining
these beds under false pretenses?
Response: The normal survey procedures will apply.
The amendment 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 and under Texas Government
Code, §531.021, which provides the Health and Human Services Commission
with the authority to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§22.001-
22.030 and §§32.001-32.042.
§19.2322.Additional Participation Requirements.
(a)-(c)
(No change.)
(d)
If the provider meets all criteria, DHS may exempt the
following facilities from the policy stated in subsection (b) of this section.
(1)-(8)
(No change.)
(9)
Facilities with Medicaid eligible residents for whom
no Medicaid bed is available. Facilities with Medicaid eligible residents
for whom no Medicaid bed is available may obtain certified beds to serve those
residents by meeting the following conditions:
(A)
The resident must:
(i)
have been a resident of the facility for at least six
consecutive months before becoming eligible for Medicaid; and
(ii)
not have been eligible for Medicaid at the time of admission
to the facility.
(B)
The facility must:
(i)
request certification of currently noncertified Medicaid
beds;
(ii)
meet requirements for Medicaid participation, and obtain
a Medicaid contract; and
(iii)
have demonstrated to DHS a satisfactory compliance history.
(C)
The certification of the bed is in effect until the resident's
death or permanent discharge from the facility or a Medicaid bed in the current
certified facility becomes available.
(D)
The number of Medicaid certified beds under this paragraph
may not exceed 10% of the total number of licensed beds in the facility at
any one time.
(e)
(No change.)
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 January
9, 1998.
TRD-9800361
Glenn Scott
General Counsel
Texas Department of Human Services
Effective date: February 1, 1998
Proposal publication date: November 14, 1997
For further information, please call: (512) 438-3765