Part I.
Texas Department of Health
Chapter 29.
Purchased Health Services
Subchapter L. General Administration
25 TAC §29.1125
On behalf of the State Medicaid Director, the Texas Department
of Health (department) adopts an amendment to §29.1125, concerning organ
transplant facility approval and designation, without changes to the proposed
text as published in the August 14, 1998, issue of the
Texas Register
(23 TexReg 8339), and therefore the section will not
be republished.
This amendment clarifies the department's authority to approve and designate
all types of organ transplant facilities. To be eligible for reimbursement
for organ transplant services, a hospital must meet the requirements included
in the Social Security Act, §1138 and be approved and designated by the
department as an organ transplant facility.
The department received no comments regarding the proposal of this rule
during the comment period.
The amendment is adopted under the Human Resources Code §32.021
and Texas Government Code §531, which provide the Health and Human Services
Commission with the authority to adopt rules to administer the state's medical
assistance program and is submitted by the department, under its agreement
with the Health and Human Services Commission to operate the purchased health
services program and as authorized under Chapter 15, §1.07, Acts of the
72nd Legislature, First Called Session (1991).
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 December
8, 1998.
TRD-9818201
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: January 1, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 458-7236
25 TAC §29.2901
On behalf of the State Medicaid Director, the Texas Department
of Health (department) adopts an amendment to §29.2901 concerning tuberculosis
clinic services, without changes to the proposed text as published in the
August 21, 1998, issue of the
Texas Register
(23 TexReg 8629), and therefore the section will not be republished.
The section describes benefits and limitations of tuberculosis clinic services
available to Medicaid recipients and provider requirements for the delivery
of these services. The department has amended the section to ensure consistency
with federal regulations. The section specifies that clinic services must
be delivered in an outpatient setting; clarifies physician supervision requirements
for the delivery of clinic services; and emphasizes that services must not
be provided within skilled nursing facilities (SNF), intermediate care facilities
(ICF), or intermediate care facilities for the mentally retarded (ICF-MR).
The following comment was received concerning the proposed amendment. Following
the comment is the department's response.
Comment: Concerning §29.2901(b)(1), a commenter stated that many tuberculosis
clinics are located in outpatient departments of hospitals and that although
many of these clinics are probably operated by hospital districts or medical
schools, they are clearly operated for outpatients. The commenter expressed
concern that a narrow interpretation of the proposed rule would cause disruption
for Medicaid clients who are currently receiving care in these facilities.
The commenter suggested adding a clarification to the proposal that states
"however, the clinic may be co-located or affiliated with a hospital, as long
as the clinic's organization and operation is separate from the hospital and
its sole purpose is to provide care to outpatients."
Response: The department acknowledges the concerns of the commenter; however,
the proposed rule is based on federal requirements of the Health Care Financing
Administration (HCFA) and governs whether federal financial participation
(FFP) reimbursement is available to the department for these services. The
department requested clarification of this provision from HCFA and received
the following response. If the clinic is merely co-located (for example, renting
space from a hospital), but remains organizationally, administratively, and
financially separate (that is separate boards and staff) from the hospital,
the facility would continue to be considered a clinic. No change was made
as a result of this comment.
The comment was received from the Coalition for Nurses in Advanced Practice
which expressed concerns and suggested changes to the proposed rule.
The amendment is adopted under the Human Resources Code, §32.021
and Government Code §531.021, which provide the Health and Human Services
Commission with the authority to adopt rules to administer the state's medical
assistance program and is submitted by the Texas Department of Health under
its agreement with the Health and Human Services Commission to operate the
purchased health services program and as authorized under Chapter 15, §1.07,
Acts of the 72nd Legislature, First Called Session (1991).
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 December
8, 1998.
TRD-9818200
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: December 28, 1998
Proposal publication date: August 21, 1998
For further information, please call: (512) 458-7236
On behalf of the State Medicaid Director, the Texas Department of
Health (department) adopts an amendment to §33.140 and new §§33.601-33.609,
concerning providers of durable medical equipment (DME), outpatient rehabilitation
facilities, and private duty nursing services covered by the Early and Periodic
Screening, Diagnosis and Treatment Comprehensive Care Program (EPSDT-CCP).
Sections 33.140, 33.603, 33.604, 33.606, and 33.608 are adopted with changes
to the proposed text as published in the June 19, 1998,
Texas Register
(23 TexReg 6381). Sections 33.601, 33.602, 33.605, 33.607,
and 33.609 are adopted without changes and will not be republished.
The amendment to §33.140(5) will help ensure that providers of durable
medical equipment supply appropriate equipment and give clients instructions
for use of the equipment. This amendment implements Senate Bill 30, 75th Texas
Legislature.
The amendment to §33.140(15) ensures consistency with terminology
used by the Federal Health Care Financing Administration.
The new sections establish and standardize the department's policies for
reimbursement of private duty nursing services. Section 33.601 defines the
purpose of this subchapter; §33.602 establishes a definitions section;
§33.603 establishes provider participation requirements; §33.604
establishes client eligibility criteria; §33.605 establishes medical
necessity criteria for private duty nursing; §33.606 establishes private
duty nursing benefits and limitations; §33.607 defines the plan of care;
§33.608 describes the circumstances under which authorization for private
duty nursing services will be terminated; and §33.609 describes settings
where private duty nursing services may be provided.
The department is making the following minor changes to the proposed text
due to staff comments received during the comment period to clarify the intent
and improve the accuracy of the sections. The details of the changes are described
in the following summary.
Change: Concerning §33.140(5)(A)(iii), for which no change was originally
proposed, the department has substituted the correct reference to subparagraph
(B)(iii) for the erroneous reference to subparagraph (B)(i) in the current
rules.
Change: Concerning §33.603(b)(4), the department has corrected the
erroneous reference to the Texas Nursing Practice Act.
Change: Concerning §33.604(a)(5), the department added the word "current"
for clarity.
Change: Concerning §33.606(a)(2)(B), the department has substituted
"should" for "may" to clarify the intended meaning of the section.
Change: Concerning §33.606(a)(2)(B)(iii), the section was intended
to refer to a single "client" and has been amended accordingly.
Change: Concerning §33.608, the department amended the section title
and the first sentence to clarify its intended meaning.
The following comments were received concerning the proposed rules. Following
each comment is the department's response and any resulting change(s).
Comment: Concerning the rules in general, one commenter stated that the
rules do not differentiate the functions which are clearly within the authority
and scope of practice of the registered professional nurse.
Response: The department acknowledges the exclusive authority and responsibility
of the Board of Nurse Examiners for the State of Texas to prescribe and regulate
the practice of professional nursing. However, the department will continue
to allow families to choose home health agencies or independently enrolled
registered nurses or licensed vocational nurses as providers of EPSDT-CCP
private duty nursing services until it is informed by the appropriate licensing
authority that performance of particular services exceeds the scope of the
provider's license. No change was made as a result of this comment.
Comment: Concerning the rules in general, one commenter stated that reimbursement
of licensed vocational nurses by the department for providing care without
supervision as independent providers under the Texas Medicaid Program may
not be in the best interest of the clients receiving this service. The commenter
added that with no supervision, limited resources exist for consultation in
the home setting.
Response: The department agrees that safe and effective provision of private
duty nursing services requires that the client's physician and the nurse providing
the nursing services must have access to immediate, open communication. No
change was made as a result of this comment.
Comment: Concerning the rules in general, a commenter stated on behalf
of a licensed home health agency that the agency's pool of licensed vocational
nurses is very skilled, with more than ten years of experience in neonatal
intensive care units and/or pediatric intensive care units. The commenter
added that licensed vocational nurses are "just as qualified as an RN in caring
for medically fragile children provided they have the background needed for
skills and assessment."
Response: The department agrees that many nursing situations involving
medically complex children can be handled by licensed vocational nurses with
appropriate education, supervision, oversight, and additional staff offered
by agency staff pools. No change was made as a result of this comment.
Comment: Concerning the rules in general, two commenters supported continued
enrollment of independently practicing LVNs.
Response: The department agrees. No change was made as a result of these
comments.
Comment: Concerning §33.140(5)(C), one commenter expressed support
for the proposed changes.
Response: The department acknowledges the comment. No change was made as
a result of the comment.
Comment: Concerning §§33.604-33.609, several commenters expressed
support for the additional requirements and clarification.
Response: The department acknowledges the comments. No change was made
as a result of these comments.
Comment: Concerning §33.603(c), two commenters stated that the proposed
rules encourage independently practicing LVNs to practice outside their licensing
boundaries particularly performing initial and ongoing assessments.
Response: The department acknowledges the authority and responsibility
of the Texas Board of Vocational Nurse Examiners to regulate licensed vocational
nurses. However, the department will continue to allow families to choose
independently enrolled licensed vocational nurses as providers of EPSDT-CCP
private duty nursing services until it is informed by the appropriate licensing
authority that performance of particular services exceeds the scope of the
vocational nurse's license. No change was made as a result of this comment.
Comment: Concerning §33.604(a)(5), one commenter objected to the required
identification of an alternate care giver for each client because creation
of such a formal backup system would impose an undue hardship on families.
Response: The department disagrees. The safety of any client receiving
care in the home requires not only identification of a primary care giver,
but also an alternate care giver or a plan for obtaining care in an alternate
setting if unforseen circumstances occur. No change was made as a result of
this comment.
Comment: Concerning §33.604(a)(5), one commenter stated that the state
should not "mandate that alternate care givers be available in order for the
child to receive private duty nursing."
Response: The department disagrees. The safety of any client receiving
care in the home requires not only identification of a primary care giver,
but also an alternate care giver or a plan for obtaining care in an alternate
setting if unforseen circumstances occur. No change was made as a result of
this comment.
Comment: Concerning §33.605, one commenter stated that the proposed
rules do not meet the established standard of care for individuals with skilled
care needs and that a licensed vocational nurse practicing as an independently
enrolled provider would be exceeding the nurse's established scope of practice.
The commenter referred the department to the "General Statement on the Scope
of Vocational Nurse Practice" from the Texas Board of Vocational Nurse Examiners.
Response: The department acknowledges the authority and responsibility
of the Texas Board of Vocational Nurse Examiners to regulate licensed vocational
nurses. However, the department will continue to allow families to choose
independently enrolled licensed vocational nurses as providers of EPSDT-CCP
private duty nursing services until it is informed by the appropriate licensing
authority that performance of particular services exceeds the scope of the
vocational nurse's license. No change was made as a result of this comment.
Comment: Concerning §33.606(a)(2)(B)(iv), one commenter stated that
the section should require that alternate resources must be available in a
timely manner and that quality of alternative services must be comparable.
Response: The department believes that the proposed rule already requires
that when comparable alternate resources are actually available to the client,
the amount of private duty nursing services may be decreased. No change was
made as a result of this comment.
Comment: Concerning §33.606(a)(2)(B)(v), one commenter recommended
deleting this requirement and addressing the appropriate number of hours in
the individual planning process for each recipient.
Response: The department disagrees. The department authorizes the number
of private duty nursing hours based on the individual planning process. However,
the department must consider appropriate reductions in private duty nursing
hours if the primary care giver subsequently becomes able to meet more of
the client's needs. Additional private duty nursing hours may be authorized
for training of the primary care giver, and as the training goals are met,
hours may be reduced. No change was made as a result of this comment.
Comment: Concerning §33.606(b)(2), one commenter suggested that the
second sentence of the section should be amended to state that "Primary care
givers remain responsible for a portion of a client's daily care, and private
duty nursing is intended to support the primary care giver (family) to care
for the client living at home."
Response: The department disagrees. The department authorizes private duty
nursing services based on the physician's prescription and a determination
of medical necessity of the service for the client. No change was made as
a result of this comment.
Comment: Concerning §33.606(b)(3)(C), one commenter recommended that
payment for private duty nursing services should be authorized for periods
of 12 months.
Response: The department disagrees. The department believes that medically
complex clients requiring private duty nursing services should be seen and
evaluated by their physicians more than once a year. No changes were made
as the result of this comment.
Comment: Concerning §33.606(b)(3)(D), one commenter recommended that
information concerning the client's right to appeal and a list or resources/organizations
available to help with the appeal process should be added.
Response: The department disagrees. The Health and Human Services Commission
has proposed uniform fair hearing rules for all Medicaid-funded services.
No change was made as a result of this comment.
Comment: Concerning §33.607, one commenter recommended that clients'
plans of care should be "person-centered and family-focused; should offer
choice, control, and any of the services individuals with disabilities and
their families need; and should represent the best practices in service delivery."
Response: The commenter's recommendations constitute guidelines for the
delivery of private duty nursing services, some of which are already included
in §33.606 of this title (relating to Private Duty Nursing Benefits
and Limitations). However, the plan of care is based on the client's condition
and the medical necessity of the services as determined by the client's physician.
The medical needs of the individual client remain the program's primary focus.
No change was made as a result of this comment.
Comment: Concerning §33.608(3) and §33.608(4), one commenter
suggested that the section should include language to "require a process for
negotiating with the client and care giver to remedy the concerns with the
place of care and to address the compliance issue prior to authorizing termination."
In addition, the commenter suggested the need for "an opportunity for a second
opinion, independent evaluation, or negotiation (short appeal) when there
is a disagreement with the plan, with formal appeal as an option if needed."
Response: The department disagrees. The department expects that issues
such as whether the place of service can continue to accommodate the health
and safety of the client, or noncompliance by the client or the care giver
with the primary physician's plan of care will be resolved by providers, families,
and physicians. The department must consider termination of authorization
for services when such issues are not resolved. No change was made as a result
of this comment.
The comments on the proposed rules received by the department during the
comment period were submitted by the Board of Nurse Examiners for the State
of Texas, Texas Nurses Association, Advocacy, Inc., Texas Respite Resource
Network, Cook Children's Home Health, AllianceCare of Texas, Pediatric Special
Care, department staff, and by individuals. The commenters were neither for
nor against the rules in their entirety; however, they raised questions, offered
comments for clarification purposes, and suggested clarifying language concerning
specific provisions in the rules.
Section 33.140 will be effective 20 days after filing with the Texas Register
Division, Office of the Secretary of State. Sections 33.601-33.609 will be
effective March 31, 1999.
Subchapter E. Medical Phase
25 TAC §33.140
The amendment is adopted under the Human Resources Code, §32.021
and Government Code, §531.021, which provide the Health and Human Services
Commission with the authority to adopt rules to administer the state's medical
assistance program, as proposed by the Texas Department of Health under its
agreement with the Health and Human Services Commission to operate the purchased
health services program as authorized under Chapter 15, §1.07, Acts of
the 72nd Legislature, First Called Session (1991).
§33.140.Early and Periodic Screening, Diagnosis and Treatment--Comprehensive Care Program Providers (EPSDT-CCP).
Program Providers (EPSDT-CCP) The following are approved EPSDT-CCP
provider types and the approved Texas Medical Assistance (Medicaid) Program
reimbursement methodology for each provider type.
(1)-(4)
(No change.)
(5)
Reimbursement for durable medical equipment.
(A)
Direct vendor payments. The department or its designee
makes direct vendor payments to providers of durable medical equipment participating
in the Medicaid program. Participating providers are reimbursed within the
limits of the maximum allowable fee schedule established by the department.
The maximum allowable fee schedule for durable medical equipment is based
on the lesser of the following:
(i)
the billed amount;
(ii)
the Medicare fee schedule, as defined in subparagraph
(B)(ii) of this paragraph;
(iii)
the durable medical equipment acquisition fee, as defined
in subparagraph (B)(iii) of this paragraph; or
(iv)
(No change.)
(B)
(No change.)
(C)
Providers of durable medical equipment to EPSDT-CCP recipients
must sign the Texas Department of Health (department) Certification and Receipt
prior to submitting any claim for payment for durable medical equipment. The
durable medical equipment provider must maintain the durable medical equipment
Certification and Receipt in the provider's office and must produce it upon
request by the department or its designee. The signature of the durable medical
equipment provider certifies that:
(i)
the recipient has received the equipment as prescribed
by the physician;
(ii)
the equipment has been properly fitted to the recipient
and/or meets the recipient's needs; and
(iii)
the recipient, or the parent or guardian of the recipient,
has received training and instruction regarding the equipment's proper use
and maintenance.
(D)
Ventilator service agreements. If the Medicaid client currently
owns a ventilator, the department may provide reimbursement for a service
agreement, in accordance with the department's policy, and at the lesser of
the billed amount or a fee schedule developed by the department.
(6)-(14)
(No change.)
(15)
Comprehensive outpatient rehabilitation facility.
A comprehensive outpatient rehabilitation facility must be enrolled and participating
in Medicare. The department or its designee will reimburse comprehensive outpatient
rehabilitation facilities according to Medicare reimbursement methodology.
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 December
14, 1998.
TRD-9818292
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: January 3, 1999
Proposal publication date: June 19, 1998
For further information, please call: (512) 458-7236
25 TAC §§33.601-33.609
The new sections are adopted under the Human Resources Code,
§32.021 and Government Code, §531.021, which provide the Health
and Human Services Commission with the authority to adopt rules to administer
the state's medical assistance program, as proposed by the Texas Department
of Health under its agreement with the Health and Human Services Commission
to operate the purchased health services program as authorized under Chapter
15, §1.07, Acts of the 72nd Legislature, First Called Session (1991).
§33.603.Provider Participation Requirements.
(a)
Home health agencies. To participate in THSteps-CCP, a
home health agency must:
(1)
comply with provider participation requirements in §29.302(a)
of this title (relating to Provider Participation Requirements);
(2)
comply with Family Code, Chapter 261, and Human Resources
Code, Chapter 48, concerning mandatory reporting of suspected abuse and neglect
of children and adults with disabilities; and
(3)
maintain written policies and procedures for obtaining
consent for medical treatment for clients in the absence of the primary care
giver that meet the standards of Family Code, §32.001.
(b)
Independently practicing registered nurses. To participate
in THSteps-CCP, an independently practicing registered nurse must:
(1)
hold a valid license from the Board of Nurse Examiners
for the State of Texas to practice as a registered nurse;
(2)
be enrolled and approved for participation in the
Texas Medicaid Program;
(3)
comply with the terms of the Texas Medicaid Provider
Agreement;
(4)
agree to provide services in compliance with all applicable
federal, state, and local laws and regulations, including the Texas Nursing
Practice Act;
(5)
comply with all state and federal regulations and
rules relating to the Texas Medicaid Program;
(6)
comply with the requirements of the Texas Medicaid
Provider Procedures Manual; including all updates and revisions published
bimonthly in the Texas Medicaid Bulletin; and all handbooks, standards, and
guidelines published by the department;
(7)
comply with accepted professional standards and principles
of nursing practice;
(8)
provide at least 30 days written notice to clients
of his or her intent to voluntarily terminate services, except in situations
of a potential threat to the nurse's personal safety; and
(9)
comply with subsections (a)(2) and (a)(3) of this
section.
(c)
Independently practicing licensed vocational nurses. To
participate in THSteps-CCP, an independently practicing licensed vocational
nurse must:
(1)
hold a valid license from the Board of Vocational Nurse
Examiners for the State of Texas to practice as a licensed vocational nurse;
(2)
be enrolled as a provider in the Texas Medicaid Program;
(3)
comply with the terms of the Texas Medicaid Provider
Agreement;
(4)
agree to provide services in compliance with all applicable
federal, state, and local laws and regulations, including the Texas Vocational
Nurse Act;
(5)
comply with all state and federal regulations and
rules relating to the Texas Medicaid Program;
(6)
comply with the requirements of the Texas Medicaid
Provider Procedures Manual, including all updates and revisions published
bimonthly in the Texas Medicaid Bulletin; and all handbooks, standards, and
guidelines published by the department;
(7)
comply with accepted standards and principles of nursing
practice; and
(8)
provide at least 30 days written notice to clients
of his or her intent to voluntarily terminate services, except in situations
of a potential threat to the nurse's personal safety; and
(9)
comply with subsections (a)(2) and (a)(3) of this
section.
§33.604.Client Eligibility Criteria.
(a)
To be eligible for private duty nursing services, a client
must:
(1)
be under 21 years of age and eligible for THSteps-CCP;
(2)
meet medical necessity criteria for private duty nursing;
(3)
have a primary physician who:
(A)
provides a prescription for private duty nursing services;
(B)
establishes a plan of care;
(C)
provides a statement that private duty nursing services
as defined in this section are medically necessary for the client;
(D)
provides a statement that the client's medical condition
is sufficiently stable to permit safe delivery of private duty nursing as
described in the plan of care;
(E)
provides continuing care and medical supervision including
but not limited to examination or treatment within 30 days prior to the start
of private duty nursing services. For extensions of private duty nursing services,
medical care must comply with the American Academy of Pediatrics recommended
schedule of visits which are applicable to the client's age, or within six
months, which ever is sooner; and
(F)
provides specific written, dated orders for clients receiving
private duty nursing services.
(4)
require care beyond the level of services delivered
under §§29.301-29.307 of this title (relating to Medicaid Home Health
Services); and
(5)
have an identified primary care giver residing in
the client's residence and an identified alternate care giver who is or can
be trained to provide part of the client's care, or if no alternate care giver
is identified, a current plan to enable the client to receive care in an alternate
setting or situation if the primary care giver is unable to fulfill his or
her role.
(b)
The department may waive any client eligibility criteria
in subsection (a)(3)(E) of this section upon review of a client's specific
circumstances.
§33.606.Private Duty Nursing Benefits and Limitations.
(a)
Private duty nursing benefits include the following.
(1)
Services. Direct skilled nursing care and care giver training
and education intended to:
(A)
optimize client health status and outcomes; and
(B)
promote family-centered, community-based care as a component
of an array of service options by;
(i)
preventing prolonged and/or frequent hospitalizations or
institutionalization;
(ii)
providing cost-effective, quality care in the most appropriate
environment; and
(iii)
providing training and education of care givers.
(2)
Amount and duration.
(A)
The amount and duration of private duty nursing services
requested will be evaluated based upon review of the following documentation:
(i)
frequency of skilled nursing interventions;
(ii)
complexity and intensity of the client's care;
(iii)
stability and predictability of the client's condition;
and
(iv)
identified problems and goals.
(B)
The amount of private duty nursing should decrease when:
(i)
one or more of the client's problems documented in the
plan of care are resolved;
(ii)
one or more of the goals documented in the plan of care
are met;
(iii)
there is a reduction in the frequency of skilled nursing
interventions, or the complexity and intensity of the client's care;
(iv)
alternate resources for comparable care become available;
or
(v)
the primary care giver becomes able to meet more of the
client's needs.
(C)
24-hour private duty nursing will be authorized only:
(i)
for limited periods of time with defined end dates when
medically necessary and appropriate based on the needs of the client;
(ii)
for limited periods of time with defined end dates related
to the medical needs of the primary care giver, only when the alternate care
giver is not available; and
(iii)
in the absence of both the primary care giver and the
alternate care giver, if another alternate person is designated who can legally
make decisions on behalf of the client and who will reside in the client's
home during the time 24-hour private duty nursing will be provided.
(b)
Private duty nursing service limitations include the following:
(1)
THSteps-CCP will not reimburse for private duty nursing
services used for or intended to provide:
(A)
respite care;
(B)
child care;
(C)
activities of daily living for the client;
(D)
housekeeping service; or
(E)
individualized, comprehensive case management beyond the
service coordination required by the Texas Nursing Practice Act, Texas Civil
Statutes, Article 4513 et seq.
(2)
Private duty nursing shall neither replace parents
or guardians as the primary care giver nor provide all the care that a client
requires to live at home. Primary care givers remain responsible for a portion
of a client's daily care, and private duty nursing is intended to support
the care of the client living at home.
(3)
Authorization of services.
(A)
Authorization is required for payment of services.
(B)
Only those services that are determined by the department
or its designee to be medically necessary and appropriate will be reimbursed.
(C)
No authorization for payment of private duty nursing services
may be issued for a single service period exceeding six months. Specific authorizations
may be limited to a time period less than the established maximum based on
the stability and predictability of the client.
(D)
The family will be notified in writing by the department
or its designee of a reduction or denial of private duty nursing services.
(E)
The provider will be notified in writing by the department
or its designee of the authorization, or denial of private duty nursing services.
(F)
The provider will notify the primary physician and family
upon receipt of the authorization or denial of private duty nursing services.
(G)
Authorization requests for private duty nursing services
must include the following:
(i)
current department authorization form, completed by the
primary physician and provider;
(ii)
plan of care, recommended, signed and dated by the client's
primary physician. The primary physician reviews and revises the plan of care
with each authorization, or more frequently as the physician deems necessary;
and
(iii)
current department form, THSteps-CCP Private Duty Nursing
Addendum to Plan of Care.
(H)
If inadequate or incomplete information is provided, the
provider will be requested to furnish additional documentation to enable the
department to make a decision on the request.
(I)
For authorization of extensions beyond the initial authorization
period or revisions to an existing authorization, the provider must submit
requests in writing. Required documentation for extending or revising authorization
includes:
(i)
current department authorization form;
(ii)
plan of care, recommended, signed and dated by the client's
primary physician; and
(iii)
current department form, THSteps-CCP Private Duty Nursing
Addendum to Plan of Care, signed and dated by the client's primary physician.
(J)
During the authorization process, providers are required
to deliver the requested services from the start of care date. Providers are
responsible for a safe transition of services when the authorization decision
is a denial or reduction in the private duty nursing services being delivered.
§33.608.Termination of Authorization for Private Duty Nursing Services.
Authorization for private duty nursing will be terminated by the department
or its designee when:
(1)
the client is no longer eligible for THSteps-CCP;
(2)
the client no longer meets the medical necessity criteria
for private duty nursing;
(3)
the place of service(s) can no longer accommodate
the health and safety of the client; or
(4)
the client or care giver refuses to comply with the
primary physician's plan of care.
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 December
14, 1998.
TRD-9818291
Susan K. Steeg
General Counsel
Texas Department of Health
Effective date: March 31, 1999
Proposal publication date: June 19, 1998
For further information, please call: (512) 458-7236
Chapter 406.
ICF/MR Programs
Subchapter E. Eligibility and Review
25 TAC §§406.201-406.214, 406.216, 406.217
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) proposes the repeal of §§406.201-406.214, 406.216, and
406.217 of Chapter 406, Subchapter E, governing eligibility and review, without
changes to the proposed text as published in the August 14, 1998, issue of
the
Texas Register
(23 TexReg 8340). The adoption
of new §§406.201-406.217 of Chapter 406, Subchapter E, concerning
the same, which replace the repealed sections, are contemporaneously adopted
in this issue of the
Texas Register
.
The repeal accommodates the adoption of new sections governing eligibility
and review.
A public hearing was held on September 8, 1998, at which no testimony was
offered. Written public comment was received from San Angelo State School,
San Angelo; San Antonio State Hospital, San Antonio; and Corpus Christi State
School, Corpus Christi. All commenters stated they had no comment.
The new sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas MHMR Board with broad rulemaking
authority; Human Resource Code, §32.021(a), and Government Code, §531.021,
which provide the Texas Health and Human Services Commission (THHSC) with
the authority to administer federal medical assistance funds and administer
the state's medical assistance program; Senate Bill 509 of the 74th Texas
Legislature, which clarifies THHSC's authority to delegate the operation of
all or part of a Medicaid program to a health and human service agency; and
Human Resources Code, §32.012(c), which provides an agency operating
part of the Medicaid program with the authority to adopt necessary rules for
the proper and efficient operation of the program. THHSC has delegated to
TDMHMR the authority to operate the ICF/MR program.
§406.201.Purpose.
§406.202.Definitions for Level-of-care and Level-of-need Criteria.
§406.203.Eligibility for Level-of-care Determination.
§406.204.Level-of-care Determination and Level-of-need Assignment.
§406.205.ICF/MR I Level-of-care Criteria.
§406.206.ICF/MR V Level-of-care Criteria.
§406.207.ICF/MR VI Level-of-care Criteria.
§406.208.ICF/MR/RC VIII Level-of-care Criteria.
§406.209.Retroactive Level-of-care Determination.
§406.210.Reconsideration of Level-of-Care Determination and Effective Dates.
§406.211.Payment for Absences from the Facility.
§406.212.Discharge and Transfer.
§406.213.Utilization Control.
§406.214.Utilization Review.
§406.216.Preadmission and Admission Process.
§406.217.Continued-stay Review.
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 December
14, 1998.
TRD-9818310
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 206-4516
25 TAC §§406.201-406.217
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §406.201-406.217 of Chapter 406, Subchapter E, governing
eligibility and review. Sections 406.201-406.204, 406.207, 406.209-406.212,
and 406.214-406.216, are adopted with changes to the proposed text as published
in the August 14, 1998, issue of the
Texas Register
(23 TexReg 8341). Sections 406.205, 406.206, 406.208, 406.213, and
406.217 are adopted without changes. The repeals of existing §§406.201-406.217
of Chapter 406, Subchapter E, concerning the same, which the new sections
replace, are contemporaneously adopted in this issue of the
Texas Register
.
The new sections describe the requirements and rights for participation
in the Intermediate Care Facility for Mentally Retarded (ICF/MR) program,
including eligibility requirements; requirements for determining level of
care (LOC) and assigning level of need (LON); requirements for payment for
absences from a facility; requirements for discharge; and utilization control
and utilization review procedures.
Throughout the subchapter minor grammatical changes and clarifying language
are added. The title and content of §406.201 are expanded to include
the subchapter's applicability. The subchapter's purpose is modified to describe
the purpose of the subchapter in more detail. The title of §406.202 is
modified to reflect the section's expanded scope. The definitions of "cerebral
palsy" and "epilepsy" are deleted as unnecessary. Language is added to the
definition of "Inventory for Client and Agency Planning (ICAP) service level"
describing where information to obtain a copy of the ICAP assessment instrument
is available. Language is added to the definition of "level of need (LON)"
clarifying that the rate being referenced is the non-state operated rate.
Language is added to the definition of "MR/RC Assessment" clarifying that
it includes the LOC determination. The definition of "related condition" in
§406.202(12)(A)(ii) is modified to reflect people-first language. The
"MR/RC Assessment, Instructions, Related Conditions Eligibility Screening
Instrument" (Figure 1: 25 TAC §406.203(1)(B)), which was incomplete as
proposed, is complete.
New subsection (c) is added to §406.204 describing the LOC and LON
effective dates. Language regarding a provider's responsibility for maintaining
documentation supporting the requested LOC and LON are added to §406.204(d)
and (e). Language is added to §406.204(f) stating that if the MR/RC Assessment
is not submitted within the required time frame, then the LOC effective date
will be the date that the MR/RC Assessment is submitted. Section 406.207(1)
is modified to reflect people-first language. The title of §406.211 is
modified for clarification. The term "annually" in §406.211(a)(2) is
replaced with the phrase "per calendar year." In §406.211(d), language
stating that a provider may charge an individual's legal representative a
bed-hold charge is deleted. The title and text of §406.216 are modified
for clarification.
A public hearing was held on September 8, 1998, at which no testimony was
offered. Written public comment was received from Advocacy, Inc., Austin;
Concept Six, Austin; the Parent Association for the Retarded of Texas (PART),
Austin; the parent of a state school resident, Garland; Central Gulf State-Operated
Community Services, Richmond; Abilene State School, Abilene; San Angelo State
School, San Angelo; San Antonio State Hospital, San Antonio; and Corpus Christi
State School, Corpus Christi.
Regarding the definition of "interdisciplinary team (IDT)" in §406.202(6),
one commenter asked what is the individual's (or the individual's legal representative
on the individual's behalf) role on the IDT. The commenter stated that the
individual (or legal representative) should be considered a member of the
IDT in order to convey preferences and agreement. The department responds
that the definition of IDT does not
exclude
the individual (or legal representative) as a member of the IDT. In fact,
federal regulations (42 CFR §483.440(c)(2)) state, "Participation by
the client, his or her parent (if the client is a minor), or the client's
legal guardian is required unless that participation is unobtainable or inappropriate."
Regarding the definition of "related condition" in §406.202(12)(A)(ii),
the same commenter suggested changing the phrase "mentally retarded persons"
to "persons with mental retardation." The department concurs and has made
the suggested change.
Regarding the second sentence in §406.207(1), the commenter suggested
changing the term "handicap" to "disability." The department concurs and has
made the suggested change.
Regarding §406.204(a), a commenter stated that TDMHMR indicated in
its training that the Texas Department of Human Services (TDHS) was responsible
for notifying TDMHMR by March 31, 1999, of all LOC determinations and LON
assignments it made prior to December 31, 1998. The commenter requested that
TDMHMR closely monitor the timely and effective completion of level-of-care
forms by TDHS. Although the commenter welcomes the transfer of responsibility
from TDHS to TDMHMR, the commenter stated that TDMHMR should be prepared to
assist providers with specific situations in which clients have lost Medicaid
eligibility and payment has been denied due to the transition of a vital function
from TDHS to TDMHMR. The department responds that the deadline for TDHS to
notify TDMHMR of its LOC determinations and LON assignments is December 31,
1998, not March 31, 1999; therefore, the department does not anticipate delays
related to the transition of responsibility.
Regarding the definition of "interdisciplinary team (IDT)" in §406.202(6),
two commenters requested that the definition contained in the Texas Health
and Safety Code, §591.003(8), be used instead. The department declines
to replace the definition because the definition contained in the subchapter
is consistent with the federal regulations governing the ICF/MR program.
Regarding the payment criteria for therapeutic and extended therapeutic
leave in §406.211(c)(1)(B)(ii), two commenters questioned if the authorization
process was being used at state schools. The commenters asked if approval
is required before leave can be taken, and whether a physician has to approve
every leave. The department responds that the documentation required in this
clause is being done in state schools. The department notes that subsection(c)(1)
relates to
the provider receiving payment for ICF/MR
services
and subparagraph (B) relates to the documentation that is
required in order for the provider to receive payment. The requirement in
subparagraph(B)(ii) is not authorization for the individual to take leave;
it is documentation necessary for the provider to receive payment. The documentation
requirement in (B)(ii) can be fulfilled after the individual has returned
from leave. The language in (B)(ii) has been modified for clarification.
Regarding the payment criteria for special leave in §406.211(c)(3)(D)
and the example of camping as "special leave" in §406.211(a)(5), two
commenters asked if
all of the active treatment
specified in the individual program plan (IPP) is provided while on the camping
trip. The department responds that the provider is responsible for informing
the camp staff of the active treatment objectives in the IPP in order for
active treatment to be provided while the individual is camping.
Regarding the payment criteria for unauthorized leave in §406.211(c)(4)(A),
two commenters asked why receiving inpatient hospitalization was considered
unauthorized leave while camping and attending the Special Olympics are considered
special leave. The commenters, stating that being hospitalized is a valid
reason for leave, recommended that it be considered special leave. The department
responds that the subsection relates to
the ICF/MR
provider receiving payment for ICF/MR services
. Although being hospitalized
is a valid reason for the individual not to be present in the facility, it
is not a reason to request reimbursement for ICF/MR services that were not
provided. If an individual were receiving inpatient hospitalization, then
Medicaid would pay the hospital for the inpatient treatment provided during
the individual's stay in the hospital. Medicaid will not pay the ICF/MR provider
for the same period of time. For clarification, the department has changed
the term "unauthorized leave" to "non-reimbursable leave."
Regarding bed-hold charging procedures in §406.211(d), two commenters
stated that discharging an individual from the ICF/MR while the individual
is receiving inpatient hospitalization is wrong. Additionally, the commenters
asked if the legal representative could be charged a bed-hold charge if the
legal representative is the "guardian of the person" and not the "guardian
of the estate." The department responds that Medicaid will reimburse only
one 24-hour program at a time. Discharge from the ICF/MR must happen in order
for Medicaid to pay the hospital for the individual's inpatient hospitalization,
just as discharge from inpatient hospitalization must happen in order for
Medicaid to resume paying the ICF/MR provider for the individual's ICF/MR
services. Regarding charging the individual's legal representative a bed-hold
charge, the department responds by deleting the reference to charging the
individual's legal representative. The department notes that ICF/MR providers
are not required to charge a bed-hold charge; however, they have the option.
Regarding the written agreement for a bed-hold charge in §406.211(d)(2),
two commenters asked if the written agreement being referenced is the approval
for each extended or therapeutic leave at state schools. The department responds
that §406.211(d) addresses the procedures for charging an individual
(or legal representative) for holding a bed while the individual is absent
from the ICF/MR on non-reimbursable leave. The subsection is not the approval
process for therapeutic or extended therapeutic leave in state schools.
Regarding fair hearings in §406.215, two commenters requested that
language be included which addresses the legal representative's right to a
fair hearing on behalf of the individual. The department responds that an
individual's legal representative does not have the right to a fair hearing
on behalf of the individual. However, the individual has the right to have
his or her legal representative request a fair hearing on his or her behalf,
and to be represented by the legal representative at the fair hearing.
Two commenters stated that since LON, ICAP, and LOC are continually referenced
throughout the subchapter, they should be attached. The department responds
that the determination and assignment criteria for LON and LOC are described
in §406.203(1)(B) (a figure attached to the distributed subchapter),
§406.204(d) and (e), §406.205, §406.206, §406.207, and
§406.208. The Inventory for Client and Agency Planning (ICAP), which
has a copyright, can be obtained by contacting Test Division Permissions,
Riverside Publishing Company, 8420 Bryn Mawr, Chicago, IL 60631.
Regarding the "MR/RC Assessment, Instructions, Related Conditions Eligibility
Screening Instrument" in §406.203(1)(B), one commenter stated that the
figure did not appear complete and asked if a section was missing. The department
responds that every other page was inadvertently omitted from the proposal.
The complete document is adopted.
Regarding the definition of "MR/RC Assessment" in §406.202(9), one
commenter suggested that the definition include language stating the form
is also used for the LOC determination. The department concurs and has added
language to reflect the commenter's concern.
Regarding the second sentence of the definition of "extended therapeutic
leave" in §406.211(a)(2), the commenter requested that the phrase "per
calendar year" replace the term "annually" for clarity. The department concurs
and has modified the language as requested.
Regarding the admission process in §406.215, the commenter questioned
if the section meant that the provider could not admit to receiving funds
while on vendor hold or if it meant that a new resident could not physically
enter the provider's facility while the provider was on vendor hold. The commenter
asked if the provider could bring in a new resident and then actually "admit"
in order to receive reimbursement when the vendor hold is released. The department
responds that Medicaid will not reimburse a provider for services that were
delivered to a new resident during the time the provider was on vendor hold.
The provider may bring in a new resident while on vendor hold but may not
request Medicaid reimbursement for any services delivered to the new resident
during the time the provider was on vendor hold. Language clarifying this
position has been added.
Three commenters stated that they had no comment.
The new sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas MHMR Board with broad rulemaking
authority; Human Resource Code, §32.021(a), and Government Code, §531.021,
which provide the Texas Health and Human Services Commission (THHSC) with
the authority to administer federal medical assistance funds and administer
the state's medical assistance program; Senate Bill 509 of the 74th Texas
Legislature, which clarifies THHSC's authority to delegate the operation of
all or part of a Medicaid program to a health and human service agency; and
Human Resources Code, §32.012(c), which provides an agency operating
part of the Medicaid program with the authority to adopt necessary rules for
the proper and efficient operation of the program. THHSC has delegated to
TDMHMR the authority to operate the ICF/MR program.
§406.201.Purpose and Applicability.
(a)
Purpose. The purpose of this subchapter is to describe
the requirements and rights for participation in the Intermediate Care Facility
for Mentally Retarded (ICF/MR) program, including:
(1)
eligibility requirements;
(2)
requirements for determining level of care (LOC) and
assigning level of need (LON);
(3)
requirements for payment for absences from a facility;
(4)
requirements for discharge from a facility; and
(5)
utilization control and utilization review procedures.
(b)
Applicability. This subchapter applies to providers and
individuals participating in the ICF/MR program.
§406.202.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Active treatment - Continuous aggressive, consistent implementation
of a program of habilitation, specialized and generic training, treatment,
health services, and related services. The program must be directed toward:
(A)
the acquisition or maintenance of the behaviors necessary
for the individual to function with as much self-determination and independence
as possible, and
(B)
the prevention or deceleration of regression or loss of
current optimal functional status. Active treatment does not include services
to maintain generally independent individuals who are able to function with
little supervision or in the absence of a continuous active treatment program.
(2)
Adaptive behavior level (ABL) - The effectiveness
or degree to which the individual meets the standards of personal independence
and social responsibility expected of the person's age and cultural group
as assessed by a standardized assessment instrument.
(3)
Inventory for Client and Agency Planning (ICAP) service
level - A designation which identifies the level of services needed by an
individual as determined by the ICAP assessment instrument. (For information
on how to obtain a copy of the ICAP assessment instrument contact TDMHMR,
Office of Medicaid Administration, P.O. Box 12668, Austin, TX 78711-2668.)
(4)
Interdisciplinary team (IDT) - Those persons (professionals,
paraprofessionals and non-professionals) who possess the knowledge, skills
and expertise necessary to accurately identify the comprehensive array of
an individual's needs and design a program which is responsive to those needs.
(5)
Level of care (LOC) - A determination given to an
individual based on data submitted on the MR/RC Assessment.
(6)
Level of need (LON) - An assignment given to an individual
based on the ICAP service level and selected items on the MR/RC Assessment
form which determines the non-state operated rate of reimbursement for that
individual.
(7)
MR/RC Assessment - A form utilized by TDMHMR for eligibility
determination, LOC determination, and LON assignment.
(8)
Medical care plan - A plan developed by a physician,
in cooperation with licensed nursing personnel, for an individual who requires
24-hour supervision by licensed nurses.
(9)
Mental retardation (MR) - Significantly subaverage
general intellectual functioning existing concurrently with deficits in adaptive
behavior and originating during the developmental period.
(10)
Related condition (RC)- A severe, chronic disability
that:
(A)
is attributed to:
(i)
cerebral palsy or epilepsy; or
(ii)
any other condition, other than mental illness, found
to be closely related to mental retardation because the condition results
in impairment of general intellectual functioning or adaptive behavior similar
to that of persons with mental retardation, and requires treatment or services
similar to those required for persons with mental retardation;
(B)
is manifested before the person reaches age 22;
(C)
is likely to continue indefinitely; and
(D)
results in substantial functional limitations in at least
three of the following areas of major life activity;
(i)
self-care;
(ii)
understanding and use of language;
(iii)
learning;
(iv)
mobility;
(v)
self-direction;
(vi)
capacity for independent living.
(11)
TDHS - The Texas Department of Human Services.
(12)
TDMHMR - The Texas Department of Mental Health and
Mental Retardation.
(13)
Qualified mental retardation professional (QMRP)
- A person who meets the criteria set forth in 42 CFR §483.430(a).
§406.203.Eligibility Criteria.
To be eligible for the ICF/MR Program an individual must:
(1)
be an individual with:
(A)
mental retardation and an IQ of 69 or below as measured
by a standardized psychometric instrument; or
(B)
a related condition, diagnosed through formal testing and
evaluation and meeting all five conditions listed in the "MR/RC Assessment,
Instructions, Related Conditions Eligibility Screening Instrument." Assessments
of IQ are not required;
(2)
be in need of and able to benefit from the active
treatment provided in the 24-hour supervised residential setting of an ICF/MR,
as evidenced by information submitted to TDMHMR for a LOC determination; and
(3)
meet the Medicaid financial eligibility criteria and
the LOC determination criteria. The LOC determination is made independently
of the financial need determination.
§406.204.LOC Determination and LON Assignment.
(a)
TDHS responsibilities. LOC determinations and LON assignments
will be performed by TDHS through December 31, 1998. Effective January 1,
1999, LOC determinations and LON assignments will be performed by TDMHMR.
(b)
TDMHMR responsibilities. Effective January 1, 1999, ICF/MR
providers must electronically submit to TDMHMR information from the MR/RC
Assessment form that substantiates a LOC determination and LON assignment.
(c)
LOC and LON effective dates.
(1)
TDMHMR determines an initial LOC and assigns an initial
LON for each individual newly admitted to the ICF/MR program. The initial
LOC and LON are effective for 180 calendar days.
(2)
Subsequent LOC determinations and LON assignments
are effective for 364 calendar days. If an individual transfers to another
facility, the admission is not a new admission to the ICF/MR program.
(3)
To acquire a renewal of the existing LOC and LON without
interrupting services, the provider must submit a request for renewal prior
to the expiration date, but no earlier than 45 calendar days prior to the
expiration date.
(A)
Submission for a renewal of the existing LOC and LON after
the expiration date or more than 45 calendar days prior to the expiration
date results in a different LOC and LON effective date and a different expiration
date.
(B)
The earliest effective date is the date of electronic submission
of the requested LOC and LON.
(d)
LOC determination. The LOC determination is based on the
LOC criteria in §406.205 of this title (relating to ICF/MR I LOC Criteria),
§406.206 of this title (relating to ICF/MR V LOC Criteria), §406.207
of this title (relating to ICF/MR VI LOC Criteria), and §406.208 of this
title (relating to ICF/MR/RC VIII LOC Criteria). The provider is responsible
for maintaining documentation in the individual's record to support the requested
LOC, including a completed paper copy with all necessary signatures.
(1)
The ICF/MR provider must:
(A)
submit a MR/RC Assessment which includes current data obtained
from standardized evaluations and formal assessments which measure physical,
emotional, social, and cognitive factors for review in making a LOC determination;
and
(B)
retain a copy of the MR/RC Assessment signed by a physician
in the individual's record.
(2)
The ICF/MR Program has four LOCs: ICF/MR I, ICF/MR
V, ICF/MR VI, and ICF-MR/RC VIII. LOC I, V, and VI determinations are based
on the individual's intellectual functioning. LOC VIII determinations are
based on the following variables regarding the developmental needs of each
individual:
(A)
adaptive behavior; and
(B)
health status.
(3)
A single, specific deficit or developmental need
does not necessarily indicate a need for active treatment.
(4)
If an IQ score cannot be obtained for a person with
severe or profound deficits in intellectual functioning, a social composite
score obtained on the Vineland Adaptive Behavior Scale or other professionally
accepted scale must be submitted. Documentation must be available that an
assessment of intelligence with a standardized instrument was attempted.
(5)
An individual is not eligible for the ICF/MR Program
if the individual:
(A)
has been medically diagnosed as having "brain death," which
includes no evidence of sensory receptivity or sensory responsiveness on a
permanent basis; or
(B)
does not respond in any way to his environment, but needs
continuous care for medical reasons.
(6)
If subsequent to the LOC determination it is
discovered that information submitted for a LOC was not correct or has changed,
the LOC will be reevaluated.
(7)
If an individual's IQ or adaptive behavior level is
such that he is eligible for the ICF/MR Program but does not meet the criteria
for any one LOC, a special review of his application for a LOC will be conducted.
(8)
Based on I.Q or adaptive behavior level, an individual
may meet the criteria for two LOCs. In this situation, the LOC that best meets
the individual's developmental needs will be requested.
(e)
LON assignment. The LON assignment is based on the LON
criteria in this section.
(1)
The ICF/MR provider must submit the ICAP service level
and selected items on the MR/RC Assessment and supporting documentation for
review in making a LON assignment. The provider is responsible for maintaining
documentation in the individual's record to support the requested LON.
(2)
The ICF/MR Program has five LONs: Intermittent (LON
1); Limited (LON 5); Extensive (LON 8); Pervasive (LON 6); and Pervasive Plus
(LON 9).
(A)
Unless modified in accordance with subparagraph (C) or
(D) of this paragraph, LONs 1, 5, 8, and 6 are assigned in accordance with
an individual's ICAP service level as follows:
(i)
LON 1 is assigned if the individual's ICAP service level
equals 7, 8, or 9;
(ii)
LON 5 is assigned if the individual's ICAP service level
equals 4, 5, or 6;
(iii)
LON 8 is assigned if the individual's ICAP service level
equals 2 or 3;
(iv)
LON 6 is assigned if the individual's ICAP service level
equals 1.
(B)
Regardless of an individual's ICAP service level score,
LON 9 is assigned if the individual exhibits extremely dangerous behavior
and the individual's MR/RC Assessment is scored with a 2 in the "Behavior"
section of the form. Extremely dangerous behavior:
(i)
is life threatening to the individual or others or could
cause catastrophic emotional harm to others;
(ii)
requires a written behavior plan which is based on on-going
written data and targets the extremely dangerous behavior; and
(iii)
requires that to manage behavior the individual be supervised
by a staff member assigned exclusively to the individual for the entire time
the individual is awake. The staff member must have no other duties while
assigned to the supervision of this individual.
(C)
LON assignments 1, 5, and 8 made in accordance with subparagraph
(A) of this paragraph may be modified if an individual has dangerous behavior
and the individual's MR/RC Assessment is scored with a 1 in the "Behavior"
section of the form. A modification made in accordance with this subparagraph
changes the initial LON assignment to the next level (i.e., LON 1 to LON 5;
LON 5 to LON 8; and LON 8 to LON 6). Dangerous behavior:
(i)
is that which could cause serious physical injury to the
individual or others;
(ii)
requires a written behavior plan which is based on on-going
written data and targets the dangerous behavior; and
(iii)
requires intensive staff intervention and extraordinary
staff resources to manage the dangerous behavior when it occurs.
(D)
LONs 1, 5, and 8 made in accordance with subparagraph (A)
of this paragraph may be modified if an individual has extraordinary medical
needs which are documented in writing by the IDT and the individual's MR/RC
Assessment is scored with a 6 in the "Nursing" section of the form. Extraordinary
medical needs require direct nursing services in excess of 180 minutes per
week. The provision of nursing services must be documented by a nurse in the
individual's medical record including the amount of time spent for treatment.
(3)
If the provider determines the information submitted
for a LON was not correct or changed, the provider must submit a corrected
MR/RC Assessment.
(f)
MR/RC Assessment. The provider must submit the MR/RC Assessment
within 20 working days of the individual's admission to the ICF/MR. If the
MR/RC Assessment is not submitted within the 20-day time frame, then the LOC
effective date will be the date the MR/RC Assessment is submitted.
§406.207.ICF/MR VI LOC Criteria.
The individual eligible for the ICF/MR VI Program requires extensive
supervision and assistance in the completion of self-help activities. The
individual requires a highly structured environment with ongoing supervision.
The individual may also have medical needs requiring close supervision and
nursing intervention. Training is necessary in basic self-help skills, work
skills, care of belongings and home, sensory-motor development, compliance
with daily routines and group activities, and socially appropriate behaviors.
Maladaptive behaviors often are present and require active programmatic intervention.
(1)
Intellectual functioning. The individual functions in the
severe to profound range of mental retardation as evidenced by a full scale
IQ score of 39 or below obtained by formal assessment. If the individual has
a sensory or motor disability in which a specially standardized intelligence
test or a certain portion of a standardized intelligence test is appropriate,
then that score must be reported as the IQ score for compliance with this
criterion. If an IQ score cannot be obtained for a severely or profoundly
retarded individual, a social composite score obtained on the Vineland Adaptive
Behavior Scale or other professionally accepted scale must be submitted. Documentation
must be available that an assessment of intelligence with a standardized intelligence
test was attempted.
(2)
Adaptive behavior level. The individual exhibits extreme
deficits in adaptive behavior with an adaptive behavior level of III or IV
noted on the LOC assessment form.
(3)
Health status. The individual's health status does
not interfere with participation in the active treatment program. The individual
may require close daily supervision and nursing intervention. The individual,
however, must be able to participate in active treatment outside the bedroom
area during waking hours.
§406.209.Retroactive LOC Determination.
Private-pay individuals living in Medicaid-certified facilities who
do not receive SSI cash benefits may be eligible for "three-months prior"
vendor payments. To ensure that vendor payments begin on the date that an
individual's financial resources are exhausted, the potential recipient must
have a valid LOC and the ICF/MR provider should maintain his or her records
in compliance with the Medicaid Utilization Review (UR) requirements. To be
in compliance with UR requirements, potential recipients' records must be
maintained and reviewed as follows.
(1)
Facility staff must conduct an IDT evaluation before the
potential recipient's admission to the Medicaid program. The IDT must make
a comprehensive medical, social, and psychological evaluation of the potential
recipient 's need for ICF/MR services. If the evaluation indicates the potential
recipient 's needs could be met by alternative services, facility staff must
document this fact in the potential recipient 's record and must document
attempts to locate the services. The provider must comply with 42 CFR §456.370
and §456.371.
(2)
The potential recipient must have a current individual
program plan. The physician's certification of need for ICF/MR services must
be dated no more than 30 days before the date that the facility administrator
learned about the potential recipient 's application for Medicaid assistance,
or before authorization for vendor payment.
§406.210.Reconsideration of LOC Determination and Effective Dates.
When a facility provides care for an individual for a period of time
not covered by a LOC determination, TDMHMR or its agent will reconsider the
LOC effective dates if requested to do so by the facility.
(1)
Individuals eligible for reconsideration of LOC effective
dates must have the following, prior to the submission of a request for reconsideration:
(A)
financial eligibility established;
(B)
admission to the Medicaid ICF/MR Vendor Payment System
on Client Movement form; and
(C)
a current LOC determination using the MR/RC Assessment.
(2)
Requests for reconsideration are limited to days
that are not covered by a valid LOC determination.
(3)
Requests for reconsideration for periods of time already
denied a LOC determination by TDHS's appeal process are not accepted.
(4)
The provider must submit a request within 12 months
from the date services were provided without a valid LOC.
(5)
TDMHMR or its agent shall notify the provider of the
results of the reconsideration within 45 days. The provider may initiate an
appeal, when reconsideration is denied, by submitting a request in writing
in accordance with Chapter 409, Subchapter B of this title (relating to Adverse
Actions).
(6)
The provider may neither charge nor take any other
recourse against Medicaid recipients, their family members, or their representatives
for any claim denied or reduced because of the facility's failure to comply
with any rule, regulation, or procedure pertaining to reimbursement.
§406.211.Payment for Absences from the Facility.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Day - A 24-hour period extending from midnight to midnight.
For counting days of absence from a facility, the first day is the first 24-hour
period beginning at midnight after the individual's departure.
(2)
Extended therapeutic leave - An individual's absence
from a facility for therapeutic purposes for a period of time greater than
three days in duration. Leave(s) cannot exceed ten cumulative days per calendar
year. Combinations of leave duration are allowable (e.g., leave combinations
of 5 days and 5 days; 6 days and 4 days; or 10 consecutive days). One extended
therapeutic leave may be combined with one therapeutic leave (3 days) per
calendar year.
(3)
Legally authorized representative - A legally authorized
representative means:
(A)
a parent or legal guardian if the individual is a minor,
or a legal guardian if the client has been adjudicated incompetent to manage
the individual's personal affairs;
(B)
an agent of the individual authorized under a durable power
of attorney for health care;
(C)
an attorney ad litem appointed for the individual; or
(D)
a parent, spouse, adult child, or personal representative
if the individual is deceased.
(4)
Therapeutic leave - An individual's absence from
a facility for therapeutic purposes for not more than three consecutive days.
The number of therapeutic leaves an individual may utilize is unlimited.
(5)
Special leave - An individual's absence from a facility
for a special activity (e.g., Special Olympics, camping).
(6)
Absence - A period of time which an individual is
not present in the residing facility.
(b)
Leave. For all types of leave, all the following must be
met:
(1)
Facility staff must be available, by telephone or at the
facility, to individuals during their absence, even if all residents of the
facility are absent from the facility.
(2)
The individual must stay in the facility overnight
before being eligible to take another therapeutic or extended therapeutic
leave.
(3)
Records must be available when TDMHMR or its authorized
agent audits the provider to ensure the provider's documentation of all types
of leave and verifies the provider's compliance with the provisions of this
section.
(c)
Payment criteria. Payment criteria for the types of leave
are:
(1)
Therapeutic and extended therapeutic leave. A provider
may receive payment from TDMHMR or its authorized agent for days during which
an individual is on therapeutic or extended therapeutic leave if the following
criteria are met:
(A)
the individual's individual program plan (IPP) provides
for therapeutic and/or extended therapeutic leave; and
(B)
the following information is documented on a "Record of
Therapeutic Leaves":
(i)
the name of the individual taking the leave;
(ii)
agreement to the leave by the individual's QMRP and physician,
if appropriate;
(iii)
the date and time of the individual's departure from
the facility; and
(iv)
the date and time of the individual's return to the facility.
(2)
Extended therapeutic leave. For extended
therapeutic leave, the individual, or a member of the individual's family
or legally authorized representative, must set forth in writing specific dates
for the individual's extended therapeutic leave.
(A)
When an extended therapeutic leave begins in one calendar
year and extends into the next, it constitutes an extended therapeutic leave
for the calendar year in which it began.
(B)
If an individual transfers into another facility within
the same year he or she has taken all ten days of his or her extended therapeutic
leave, then the individual is not eligible for another extended therapeutic
leave until the following year.
(3)
Special leave. A provider receives payment from
TDMHMR or its authorized agent for days during which an individual is on special
leave if the following criteria are met:
(A)
the need to attend the special activities is documented
in the individual's IPP;
(B)
sufficient staff are present at the special activity to
meet the requirements for direct care staff set forth in 42 CFR §483.430(d);
(C)
the provider continues to incur the usual costs for caring
for the individual including, but not limited to, the cost of meals, lodging,
and staff; and
(D)
the provider continues to provide the individual the active
treatment program specified in the individual's IPP.
(4)
Non-reimbursable leave. A provider may not receive
payment from TDMHMR or its authorized agent for days an individual is absent
from the facility and:
(A)
the individual is receiving inpatient hospitalization;
(B)
the individual has made an unauthorized departure from
the facility; or
(C)
payment during the individual's absence is not authorized
as a therapeutic, extended therapeutic, or special leave.
(d)
Bed-hold charge procedures. If an individual is absent
from a facility for purposes other than therapeutic, extended therapeutic,
or special leave, the provider must discharge the individual by submitting
a Client Movement Form. Additionally, the provider may choose to offer the
individual a bed-hold charge option. A provider may charge an individual a
bed-hold charge during an individual's absence, if the following criteria
are met:
(1)
the provider does not receive payment from TDMHMR or its
authorized agent for days the facility charges to hold a bed for a resident;
(2)
a written agreement, signed and dated by the facility's
administrator, QMRP, or designee and the individual or the individual's legal
representative, is executed for each absence;
(3)
the provider does not charge an amount which exceeds
TDMHMR's rate of reimbursement for the individual's LON at the time of the
individual's departure from the facility;
(4)
the provider documents amounts charged to hold a bed
in an individual's financial record at the time the bed is held; and
(5)
the provider complies with §406.253 of this title
(relating to Protection of Funds) when it collects a bed-hold charge from
an individual's trust fund account.
§406.212.Discharge.
(a)
If an individual is discharged from a facility, the facility
administrator must complete a Client Movement Form to document the discharge.
Within 72 hours of the discharge, the provider must submit the Client Movement
Form to TDMHMR or its authorized agent and to the appropriate TDHS Medicaid
eligibility worker. The provider must include the individual's post-discharge
address, if known, on the Client Movement Form.
(b)
If an individual is discharged to another facility, the
admitting facility must initiate a LOC assessment if:
(1)
more than 30 days have elapsed since the discharge;
(2)
the individual's current LOC has expired; or
(3)
the admitting facility's LOC is different from the
individual's current LOC.
(c)
If an individual is discharged from and subsequently readmitted
to the same facility, the facility must initiate a LOC assessment if:
(1)
more than 30 days have elapsed between the discharge and
readmission; or
(2)
the individual's current LOC determination has expired.
§406.214.Utilization Review.
(a)
Utilization review (UR) plans and procedures must comply
with 42 CFR §456.401. The Texas State Plan for Title XIX requires a UR
process for ICF/MR providers participating in the Texas Medical Assistance
Program.
(b)
TDMHMR performs the UR functions for the providers.
(c)
TDMHMR is responsible for developing and maintaining LOC
and LON criteria to evaluate the necessity for each individual's continued
stay. These LOC and LON criteria are specified in §406.204 of this title
(relating to LOC Determination and LON Assignment), §406.205 of this
title (relating to ICF/MR I LOC Criteria), §406.206 of this title (relating
to ICF/MR V LOC Criteria), §406.207 of this title (relating to ICF/MR
VI LOC Criteria), and §406.208 of this title (relating to ICF/MR/RC VIII
LOC Criteria).
(d)
UR plan objectives are to:
(1)
promote quality care and training that meet individuals'
needs;
(2)
determine whether needed services are available and
are provided on a continuing basis;
(3)
determine that individuals are classified in the correct
payment category;
(4)
ensure that the services provided are necessary; and
(5)
review the individual program plans.
(e)
The provider may request a reconsideration of the LON assignment
made by TDMHMR or its designee by completing the Reconsideration Notice and
sending it to the utilization review section of the TDMHMR Office of Medicaid
Administration by certified mail within 10 days of the date notification of
the LON assignment. The provider must include with the request additional
clinical and supporting documentation. The utilization review section reviews
the Reconsideration Notice and notifies the provider in writing within 15
working days of the receipt of the request.
(f)
The utilization review section of the TDMHMR office of
Medicaid Administration, or its designee, conducts periodic retrospective
reviews. Based on such reviews, TDMHMR may recoup or deny payments to a provider.
Recoupment is limited to no more than six months prior to the date of notification
of denial.
§406.215.Individuals' Right to Fair Hearing.
Any Medicaid eligible individual whose request for eligibility for
the ICF/MR Program is denied for any reason, including denial of an LOC determination,
or is not acted upon with reasonable promptness, or whose ICF/MR services
have been terminated, suspended, or reduced by TDMHMR is entitled to a fair
hearing conducted by TDHS. A request for a fair hearing must be submitted
to the TDMHMR Office of Medicaid Administration and received within 90 days
from the date the notice of denial of eligibility for the ICF/MR Program or
notice of termination, suspension, or reduction of ICF/MR services is mailed.
§406.216.Admission Limitation.
A provider may not admit new residents for whom Medicaid reimbursement
will be requested while the provider's payments are on vendor hold.
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 December
14, 1998.
TRD-9818309
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: January 4, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 206-4516
Subchapter F. Case Management Program Requirements
25 TAC §§409.201-409.207
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§409.201-409.207 of Chapter 409,
Subchapter F, concerning case management program requirements, without changes
to the text as proposed in the August 14, 1998, issue of the
Texas Register
(23 TexReg 8349). The key subject matter of these sections
and related sections in Chapter 409, Subchapter G, concerning case management
for persons with severe and persistent mental illness, are addressed in new
§§412.451-412.466 of new Chapter 412, Subchapter J, concerning service
coordination, which are contemporaneously adopted in this issue of the
The repeals are part of a comprehensive reorganization of chapters and
subchapters within the department's portion of the Texas Administrative Code
in conjunction with the rules review as required by the current Appropriations
Act, Article IX, Section 167.
A public hearing was held on September 8, 1998, at which no public testimony
was received. Written comments were received from a San Angelo State School
and Vernon/Wichita Falls State Hospital. All commenters stated they had no
comment.
The sections are repealed under the Texas Health and Safety
Code, §532.015(a), which provides the Texas MHMR Board with broad rulemaking
authority; Texas Human Resources Code, §32.021(a), and Texas Government
Code, §531.021, which provide the Texas Health and Human Services Commission
(THHSC) with the authority to administer federal medical assistance funds
and administer the state's medical assistance program; Senate Bill 509 of
the 74th Texas Legislature, which clarifies THHSC's authority to delegate
the operation of all or part of a Medicaid program to a health and human service
agency; and Texas Human Resources Code, §32.012(c), which provides an
agency operating part of the Medicaid program with the authority to adopt
necessary rules for the proper and efficient operation of the program. THHSC
has delegated to TDMHMR the authority to operate the Medicaid case management
program.
§409.201.Definitions.
§409.202.Eligible Individuals.
§409.203.Case Management Services.
§409.204.Service Limitations.
§409.205.Provider Qualification.
§409.206.Reimbursement Methodology for Case Management for Individuals with Mental Retardation.
§409.207.Right to Appeal.
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 December
14, 1998.
TRD-9818307
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 1, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 206-4516
25 TAC §§409.251-409.255
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts the repeals of §§409.251-409.255 of Chapter 409,
Subchapter G, concerning case management for persons with severe and persistent
mental illness, without changes to the text as proposed in the August 14,
1998, issue of the
Texas Register
(23 TexReg
8349). The key subject matter of these sections and related sections in Chapter
409, Subchapter F, concerning case management program requirements, are addressed
in new §§412.451-412.466 of new Chapter 412, concerning Subchapter
J, concerning service coordination, which are contemporaneously adopted in
this issue of the
Texas Register
.
The repeals are part of a comprehensive reorganization of chapters and
subchapters within the department's portion of the Texas Administrative Code
in conjunction with the rules review as required by the current Appropriations
Act, Article IX, Section 167.
A public hearing was held on September 8, 1998, at which no public testimony
was received. Written comments were received from a San Angelo State School
and Vernon/Wichita Falls State Hospital. All commenters stated they had no
comment.
The sections are repealed under the Texas Health and Safety
Code, §532.015(a), which provides the Texas MHMR Board with broad rulemaking
authority; Human Resources Code, §32.021(a), and Government Code, §531.021,
which provide the Texas Health and Human Services Commission (THHSC) with
the authority to administer federal medical assistance funds and administer
the state's medical assistance program; Senate Bill 509 of the 74th Texas
Legislature, which clarifies THHSC's authority to delegate the operation of
all or part of a Medicaid program to a health and human service agency; and
Human Resources Code, §32.012(c), which provides an agency operating
part of the Medicaid program with the authority to adopt necessary rules for
the proper and efficient operation of the program. THHSC has delegated to
TDMHMR the authority to operate the Medicaid case management program.
§409.251.Target Population.
§409.252.Case Management Services.
§409.253.Service Limitations.
§409.254.Provider Qualifications.
§409.255.Reimbursement Methodology for Case Management.
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 December
14, 1998.
TRD-9818308
Charles Cooper
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: April 1, 1999
Proposal publication date: August 14, 1998
For further information, please call: (512) 206-4516
Subchapter J. Service Coordination
Subchapter DD. Tuberculosis
Chapter 33.
Early and Periodic Screening, Diagnosis, and Treatment
Subchapter K. Private Duty Nursing
Part II.
Texas Department of Mental Health and Mental Retardation
Chapter 409.
Medicaid Programs
Subchapter G. Case Management for Persons with Severe and Persistent Mental Illness
Chapter 412.
Local Authority Responsibilities