Texas Register
(26 TexReg 3090).
The amended rules are adopted, in part, to implement the utilization review
function assigned to HHSC by Senate Bill 30, enacted by the 75th Legislature
in 1997. These rules reflect the transfer of authority from the Texas Department
of Human Services (TDHS) to HHSC. These rules also reflect a new process for
utilization review of Medicaid hospice recipients residing in nursing facilities
as required by Code of Federal Regulations, Title 42, Part 455 (concerning
Medicaid Program Integrity) and Part 456 (concerning Utilization Control),
and by the Human Resources Code, Title 2, §32.032 (concerning Prevention
and Detection of Fraud).
HHSC received comments from the following organizations: Texas Health Care
Association; Texas Association of Homes and Services for the Aging, and Texas
Department of Human Services.
General Comment: One commenter inquired whether HHSC intended to continue
to perform quality of care reviews for all children residing in nursing facilities
regardless of payment source.
Response: HHSC intends to continue the reviews of all children. The language
regarding these reviews was removed from the proposed §371.214 to allow
for further study by HHSC staff. The language has been reinserted in §371.213.
Comment: The commenter observed that the reference in proposed §371.212(2)(D)
to Chapter IV of 42 CFR Part 455 might be confusing and recommended deleting
the reference.
Response: HHSC agrees and will delete the reference to Chapter IV.
Comment: Two commenters questioned the phrase in §371.212(3)(B)(i)(II)(-a-)
that states "a description of the event or illness and the recipient's functional
status before and after the event must be documented by nursing staff in the
individual's clinical record or care plan". They stated that they had understood
the intent of this section to be that the physical therapist could document
the change in patient status in the nursing section of the clinical record.
It was recommended that this phrase be changed to "a description of the event
or illness and the recipient's functional status before and after the event
must be documented in the nurse's section of the clinical record and/or care
plan.
Response: HHSC disagrees about the intent of this language. The intent
was to ensure that the change in the recipient's functional status was noted
by a discipline other than physical therapy. Since nursing staff is responsible
for completion of the Client Assessment Review and Evaluation (CARE) form,
it is expected that nursing staff will document their observations in the
clinical record or care plan. Consequently, HHSC does not believe this reference
should be revised.
Comment: Concerning §371.212(3)(B)(ii)(V)(-b-), one commenter felt
that it was unclear as to who submits the written monthly review if services
were supervised or delivered by a licensed therapist.
Response: HHSC agrees and has added "by the licensed therapist" to the
end of the item.
Comment: Concerning §371.212(3)(B)(iii), which relates to recipients
in the rehabilitative/restorative therapies group, one commenter noted an
error in an internal reference. Specifically, they recommended that the references
should be to clauses (i), (i)(IV) and (V), and (ii) of subparagraph (B).
Response: HHSC agrees and has added the suggested language.
Comment: Concerning §371.212(7), three commenters noted that deleting
the phrase "acting director of nurses" from the list of persons who are required
to sign the CARE form suggests that in the absence of the director of nursing,
only the facility nurse assessor is required to sign the form. Two commenters
noted that by deleting this person, HHSC contradicted information in the proposal
preamble.
Response: HHSC agrees with and appreciates the comment. The phrase "acting
director of nurses" has been reinserted.
Comment: Two commenters observed that in §371.212 (7), the hospice
nurse assessor is required to sign the CARE form indicating that to the best
of their knowledge, the information submitted is accurate, but that the rule
does not require the hospice nurse assessor to complete TILE training in order
to learn how to complete the CARE form. The commenters expressed concern that
a licensed nurse would be required to attest to the accuracy of the form,
but might not understand the clinical values utilized. The commenters recommended
changing the phrase "one of whom has received TILE training" to "both of whom
have received TILE training".
Response: HHSC disagrees based on the fact that hospice nurse assessors
are encouraged to complete the training. No changes to language were made.
Comment: Two commenters noted that the language in §371.212(7) requires
the electronic version of the form to be signed and maintained by the nursing
facility. They point out that at a stakeholder's meeting held on April 19,
2001, a working draft of the 3652-A instructions stated, "Retain a copy with
the appropriate signatures for the nursing facility clinical records." The
commenters state that the language in the instructions is acceptable because
it is not common practice for nursing facilities to maintain copies of the
electronically transmitted forms with the required signatures.
Response: HHSC feels that the language in the proposed §371.212(7)
reflects current practice. As of the end of April, approximately 90% of CARE
forms reviewed by HHSC Utilization Review nurse reviewers contained the required
signatures. Additionally, the DHS contract with the nursing facility requires
that 3652 electronic forms with the appropriate signatures be maintained (Section
II, K). HHSC agrees that the language in the 3652-A instructions was not as
specific as the rule or contract language and intends to correct that oversight
prior to printing the instructions. No changes were made to the rule as a
result of this comment.
Comment: Two commenters noted that the requirement in §371.214(a)
for the nursing facility and hospice nurse assessors to jointly assess hospice
recipients who are residing in nursing facilities might delay completion of
the form. The commenters were concerned that the two nurses might not be able
to easily coordinate their schedules to allow simultaneous assessment of the
hospice recipient. The commenters suggested substituting language from §371.212(7)
that requires the hospice nurse to sign the form and removing the word "jointly"
from the second sentence in §371.214.
Response: HHSC never intended for both nurses to complete the assessment
at the same time. Both nurses must assess the hospice recipient, and both
must sign the Form 3652-A attesting to the accuracy of the assessment. The
suggested substitution language from §371.212(7) removes the hospice
nurse assessor's requirement to assess the patient, and therefore is unacceptable.
HHSC agrees that the word "jointly" implied a simultaneous assessment and
has removed that word.
Comment: Two commenters requested that §371.214(b) be clarified to
express that the "one-time 60-day waiver" can be utilized each time a new
Director of Nurses (DON) is hired by deleting the wording "one-time."
Response: HHSC agrees that the waiver can be requested each time a new
DON is hired if the new DON hasn't completed the TILE training. However, deleting
the wording "one-time" would allow a new DON to request multiple 60-day waivers.
HHSC feels that the proposed language adequately describes the acceptable
practice and has made no revision to the rule language.
Comment: In reference to §371-214(c)(1), two commenters requested
that the nursing facility be given five days pre-notification instead of the
current two day pre-notification. The commenters stated that more time is
needed to assure that items that have been thinned from the medical record
can be retrieved and made available.
Response: HHSC disagrees. The two-day pre-notification is a minimum and
is routinely exceeded. Additionally, there are multiple DHS Nursing Facility
Requirements for Licensure and Medicaid Certification that require maintenance
of the file and/or disallow thinning of pertinent information from the clinical
record. These include 40 TAC §19.1910 pertaining to Clinical Records, §19.1912,
relating to Additional Clinical Record Service Requirements, and §19.801,
concerning the Resident Assessment. No changes were made to the rule as a
result of this comment.
Comment: Two commenters noted that §371.214(c)(1) states that "For
routine visits, nurse reviewers must be given prompt access to all information
and resources necessary to conduct the TILE review." The commenters point
out that it is unreasonable to expect that all information will be immediately
accessible for all patients reviewed. They suggest that the nurse reviewers
should only have one to two charts at any given time and ask that "all information"
be changed to "information."
Response: HHSC agrees in part. It would be unreasonable to expect that
the totality of information on every patient be available at the start of
the review. It is HHSC's expectation that the reviewers will have as much
information as possible at the start of the review and that all information
be made available as soon as possible, but definitely before the end of the
review. Providing the nurse reviewers with only two charts at a time would
hinder the review process and is not acceptable. HHSC agrees that the word
"all" may imply an unrealistic expectation and has deleted it from the rule.
Comment: Two commenters stated that §371.214(c)(1) is inconsistent
with case law. Namely, the use of Default TILE 212 without the ability to
reimburse the nursing facility for lost funds conflicts with the decision
made in
Texas Department of Human Services v. Christian
Care Centers, Inc; 826 S.W.2d 715
(Tex.App. - Austin 1992). The commenters
state that once the review has been performed that the TILE rate should be
modified and the payment should be made retroactive back to the date that
the Default TILE 212 was implemented.
Response: HHSC agrees and has modified §371.214(c)(1) to state that
once the review has been performed and the facility has demonstrated that
a higher TILE classification is medically necessary, the higher TILE will
be paid retroactive to the date that the Default 212 was implemented.
Comment: Two commenters asked that §371.214(c)(2) be expanded to allow
nurse reviewers to use staff interviews and nursing observation to play a
part in discussions of errors in TILE levels. They point out that §371.212(2)(A)
states that nurse reviewers can use staff interviews and nursing observation
to assign activities of daily living (ADL) scores and recommend that language
be changed to allow this practice. It was recommended that "staff interviews
and nursing observation" be added to the third sentence in this section.
Response: HHSC agrees. Observations and interviews are primarily used for
validation of TILE level and to ensure that the residents are in fact residing
in the facility. Since the TILE review is retrospective, the clinical record
will contain documentation regarding patient status that may not be consistent
with their current status. In some situations, however, patient observation
and interviews may assist with determining prior level of care. Therefore,
the next to last sentence in this paragraph has been changed to "Additional
documentation, staff interviews and nursing observation to support nursing
facility resident and hospice recipient assessments may be presented at any
time during the review process or the exit conference, and adjustments may
be made."
Comment: Two commenters suggested that the language in §371.214(c)(2)(A)
be changed to clarify that the payment and recoupment may be made to either
or both the nursing facility or hospice provider.
Response: HHSC agrees and has changed "nursing facility and hospice provider"
to "nursing facility and/or hospice provider" in both places in that subchapter.
Comment: One commenter noted that the phrase "this title" §371.214(c)(4)
is incorrect because it refers to Title 1, not Title 40, which contains the
rules that regulate TDHS contract appeals. They suggested changing the reference
to Title 40.
Response: HHSC agrees and has corrected the reference.
Comment: Two commenters asked that the error rate be clarified in §371.214(d).
The commenters suggested that the 20% error rate be defined as 20% of the
total patients reviewed and that each Form 3652-A should be limited to one
error when calculating the error rate.
Response: HHSC responds that the procedure for calculating the 20% error
rate has always been based on the total patients reviewed and has never included
more than one error per form reviewed. No change was made as a result of this
comment.
Comment: Two commenters requested that the language in §371.214(f)
be changed from HHSC "will direct DHS to hold vendor payments" to "may direct".
Response: HHSC disagrees. In the given situation, HHSC will always direct
DHS to hold vendor payments. Stating that this "may" occur would be misleading.
Additionally, all language in this rule pertaining to HHSC directing DHS to
make changes to vendor payments is phrased in the same manner.
These rule amendments are adopted under authority granted to
HHSC by §531.033, Government Code, which authorizes the Commissioner
of Health and Human Services to adopt rules necessary to implement HHSC's
duties, and under §531.021(a), Government Code, which authorizes HHSC
to administer federal medical assistance (Medicaid) program funds.
§371.212.Case Mix Classification System.
The case mix classification system is defined in terms of recipient
condition, functional performance in activities of daily living (ADL), and
level of staff intervention. The classification system is divided into four
clinical categories, which are further subdivided based on ADL scores that
measure functional performance for eating, transferring, and toileting. The
combination of clinical categories and ADL measurements yields an array of
11 Texas Index for Level of Effort (TILE) case-mix classifications.
(1)
Assessment period. The information on the Client Assessment
Review and Evaluation (CARE) form for assignment of a clinical category or
ADL score must be based on the recipient's status in the facility during the
four weeks immediately preceding the assessment date, except in any of the
following instances:
(A)
If the recipient has experienced what appears to be a permanent
change in clinical or functional status within the past four weeks, the nursing
facility or the hospice provider can choose to complete a new assessment.
Information in the new assessment shall be based on the recipient's current
status.
(B)
If the recipient has been admitted or readmitted to a facility
during the past four weeks, the assessment is based on the status since admission
or readmission.
(C)
The condition or event that precipitates the need for rehabilitative
therapy/restorative nursing may have occurred no more than six months prior
to the assessment period. An admission or transfer into a facility could qualify
as an event.
(2)
Documentation. The documentation in the clinical record
must be descriptive and quantitative to allow the accurate completion of the
CARE form items relating to the recipient's condition(s), treatment(s), and
the ADLs of eating, transferring, and toileting.
(A)
In the absence of required facility documentation, the
Texas Health and Human Services Commission (Commission) nurse reviewers will
use available data, staff interviews, and nursing observation to assign ADL
scores.
(B)
The required documentation must appear in the clinical
record during the assessment period to qualify for a clinical category. Lack
of documentation will result in a change to an assessment item for a clinical
category.
(C)
Lack of, conflicting, or altered documentation could be
the basis for an adjustment in TILE.
(D)
Suspected fraudulent documentation, such as falsified or
fabricated medical records, may result in a referral for investigation to
the Medicaid Program Integrity Division of the Commission, as required as
part of the state's methods for identification, investigation and referral
for fraud under the Texas Administrative Code, Title 40, Part 1, Chapter 79,
Subchapter V (relating to Fraud or Abuse Involving Medical Providers) and
Code of Federal Regulations, Title 42, Chapter IV, Part 455 (concerning Program
Integrity: Medicaid).
(3)
Clinical categories. Each recipient is assigned to one
of the following four clinical categories based on qualifying conditions or
treatments.
(A)
The heavy-care group. To qualify for the heavy-care clinical
group, a recipient must have at least one of the following conditions or be
receiving at least one of the following treatments, with supporting documentation
in the clinical record, and the recipient must have a total ADL score of at
least six out of a possible nine.
(i)
Coma. Persistent unconsciousness and unresponsiveness from
which a resident cannot be aroused must be documented in the assessment period.
(ii)
Quadriplegia. Neurologic disorder causing paralysis of
the four extremities, excluding loss of movement caused solely by contractures.
Paralysis is defined as loss of power of voluntary movement in a muscle through
injury or disease of its nerve supply. A description of the recipient's functional
abilities and limitations must be documented in the clinical record in the
assessment period.
(iii)
Stage III or IV decubitus with physician-ordered decubitus
care and/or wound dressings twice a day. Decubitus covered by eschar is considered
Stage IV. Decubitus must be described and care/dressings must be documented
in the assessment period.
(iv)
Non-oral administration of 60% or more of the recipient's
nourishment. Times, amount, and types of feeding must be documented in the
assessment period.
(v)
Daily oral or nasal suctioning, which must be documented
daily in the assessment period.
(vi)
Daily tracheotomy care or suctioning, excluding self-care,
which must be documented daily in the assessment period.
(B)
The rehabilitation/restorative group. To qualify for the
rehabilitation/restorative clinical group, a recipient must receive TILE 202
restorative nursing care as follow-up to rehabilitation therapy. The TILE
202 restorative nursing and rehabilitation therapy must meet the following
criteria with supporting documentation in the clinical record. For hospice
recipients residing in nursing facilities rehabilitation or restorative nursing
care is only applicable for conditions unrelated to the terminal illness.
(i)
The rehabilitation therapy must be:
(I)
physical or occupational therapy, ordered by a physician,
and provided by a licensed therapist or by certified or licensed occupational
or physical therapy assistants (COTA/LPTA) under the supervision of a licensed
therapist. Positioning, splinting, decubitus ulcer care, and training nursing
staff (as in a functional maintenance program) are excluded from the TILE
202, even if provided by an occupational therapist or physical therapist;
(II)
initiated due to an identifiable, documented event, i.e.,
an illness, injury or physical change or an exacerbation of a chronic illness
in the past six months with an associated change in ADL functioning. An admission
or transfer into a facility could qualify as an event. The functional change
must be documented through one of the following:
(-a-)
a description of the event or illness and the recipient's
functional status before and after the event must be documented by nursing
staff in the individual's clinical record or care plan; or
(-b-)
completion of a Minimum Data Set 2.0 Significant Change
with an updated care plan;
(III)
expected to result in the recipient's making significant,
measurable, functional progress, which must be documented in the therapy goals;
(IV)
provided on a one-to-one basis three times per therapy
week for at least two therapy weeks; and
(V)
reimbursed by Medicare, Medicaid rehabilitative services,
or another third party payer.
(ii)
The TILE 202 restorative nursing must:
(I)
be provided as part of a restorative care plan, based upon
the therapist's written plan of care and developed by the restorative team,
which must include and be signed by the therapist and a registered nurse;
(II)
begin during the assessment period;
(III)
begin within 14 days of the therapist's written restorative
plan of care;
(IV)
be provided for a minimum of 24 sessions within eight
therapy weeks, and must continue as long as clinically indicated; and
(V)
be supported by a Restorative Nursing Care Program form,
or similar form containing the same elements, which must document each restorative
session and the recipient's response to the restorative plan through:
(-a-)
a weekly note by the nursing or therapy staff (as appropriate);
and
(-b-)
a written monthly review by the licensed nursing staff
or, if services were supervised or delivered by a licensed therapist, by the
licensed therapist.
(iii)
A recipient will be considered to be properly classified
in this clinical group if all criteria in clauses (i) and (ii) of this paragraph
are met except clause (i)(IV) and (V) of this subparagraph, which must be
met within three months of the date of assessment;
(C)
The clinically unstable group. To qualify for the clinically
unstable group, a recipient must have at least one of the following conditions
or receive one of the following treatments during the assessment period.
(i)
Recent amputation of arms, legs, or parts thereof in the
six months preceding the assessment date. Date and site of amputation must
be documented in the clinical record.
(ii)
Seizures, which occurred in the facility, in the assessment
period. A description of the seizure and nursing interventions must be documented
in the clinical record.
(iii)
Dehydration with documented intake/output monitoring
(including frequency and amounts of output) on at least two shifts per day.
Dehydration that was diagnosed, treated, and resolved outside the facility
and is no longer symptomatic is excluded. The signs, symptoms, interventions,
and measures taken to prevent recurrence must be documented in the assessment
period.
(iv)
Acute, symptomatic urinary tract infection (UTI) with
a documented intake and output (including frequency and amounts of output)
on three shifts a day. UTIs that were diagnosed, treated and resolved outside
the facility and are no longer symptomatic and UTIs identified by urinalysis
alone are excluded. The signs, symptoms, interventions and measures taken
to prevent recurrence must be documented in the assessment period.
(v)
Incontinence or a Foley catheter, with an individualized
bowel or bladder rehabilitation program requiring staff intervention at least
three times per day. The program must assess the cause of the incontinence
and the rehabilitative potential, and document the interventions and outcomes.
The care plan must include the individualized goals and approaches that reflect
both the resident and nursing participation in the process. Frequency of staff
intervention must be documented.
(vi)
Oxygen administration, which must be documented on a daily
basis during the assessment period. One day of oxygen use is excluded from
reimbursement as a daily oxygen charge.
(vii)
Respiratory therapy, ordered by a physician, performed
by licensed nursing staff or a respiratory therapist, received at least three
times per day, and documented in the assessment period. Respiratory therapy
includes nebulizers, percussion, cupping, postural drainage, updrafts, and
intermittent positive pressure breathing (IPPB) treatments, but excludes inhalers.
(viii)
Wound dressing applied to an open wound at least two
times per day, excluding simple skin tears and closed abrasions. A description
of the wound and the treatment, including frequency, must be documented in
the assessment period.
(D)
The clinically stable group. This clinical group includes
all recipients who do not qualify clinically for the heavy-care, rehabilitation/restorative,
or clinically unstable group, and who have an ADL score between 3 and 9. The
clinically stable group includes a mental/behavioral condition subgroup. A
recipient qualifies for this subgroup if:
(i)
they have an ADL score of exactly three; and
(ii)
they have at least one of the following cognitive or behavioral
characteristics:
(I)
incoherent/frequent disorientation requiring daily staff
intervention. Orientation problems must be described in the clinical record
in the assessment period, including the staff intervention required and its
frequency; or
(II)
disruptive or aggressive behavior, requiring immediate
staff intervention on a daily basis. The behaviors must be described in the
clinical record, in the assessment period, including the frequency and the
required staff intervention.
(4)
Computation of the ADL scale. The ADL scale is used to
assess recipients' daily functional abilities in eating, transferring and
toileting. The facility nurse assessors rate these activities with a value
of one to five on the CARE form. The CARE form values are recoded by DHS into
a three-point system. The recoding results in points that range from one to
three for each item and totals from three to nine for all three items. A recipient's
total points for all three ADLs are used to determine case-mix classifications
within the clinical categories. The ADLs and their corresponding points on
the TILE nine-point scale are:
(A)
Transferring, or the process of moving between positions,
such as to or from a bed, a chair, or a standing position, but excluding to
and from the toilet.
(i)
One TILE point is given for recipients rated as:
(I)
Independent; no staff assistance required, but recipient
may use equipment such as railings, trapeze, etc.
(II)
Pro re nata (PRN); recipient requires PRN assistance for
transfers.
(ii)
Two TILE points are given for recipients rated as "one
to transfer"; requires one person continuously for physical or verbal assist
on 60% or more of the transfers. When assistance is required and for what
reason must be documented in the assessment period.
(iii)
Three TILE points are given for recipients rated as:
(I)
Two to transfer; requires assistance of two or more staff
during the entire activity on 60% or more of the transfers. When assistance
is required and for what reason must be documented in the assessment period.
(II)
Not Transferred; may be transferred to a stretcher or
chair once a week or less, excluding transfers to bath or toilet.
(B)
Eating, including the use of an enteral or parenteral tube,
but excluding tray set up and food preparation.
(i)
One TILE point is given for recipients rated as:
(I)
Independent or recipient has chosen not to receive nutrition.
(II)
Intermittent assistance; requires verbal or physical assistance
less than 60% of the time.
(ii)
Two TILE points are given for recipients rated as:
(I)
Being trained to feed themselves. An assessment of the
retraining potential and a description of the training program must be documented
in the clinical record in the assessment period. The retraining program must
include a minimum of training at two meals per day.
(II)
Requiring assistance to syringe or spoon-feed for 60%
or more of the time. The type of assistance, when the assistance is required,
and for what reason must be documented in the clinical record.
(iii)
Three TILE points are given for recipients rated as receiving
non-oral feedings for 60% or more of the recipient's nutrition using a tube
such as a naso-gastric tube, gastrostromy tube, percutaneous endoscopic gastrostromy
tube, or administration of total parenteral nutrition via a central line.
The frequency, amounts, routes, and times the non-oral feedings were administered
must be documented in the clinical record.
(C)
Toileting, or the process of elimination including the
use of a bedpan, urinal, bedside commode, or toilet, or ostomy or incontinent
care.
(i)
One TILE point is given for recipients rated as:
(I)
Independent, including the use of special equipment or
performing of own incontinent care, self-catheterization, ostomy care.
(II)
Requires assistance but can be left alone for privacy.
Assistance may include transferring on and off the commode, cleansing after
elimination, adjusting clothing, or washing hands.
(ii)
Two TILE points are given for recipients rated as incontinent
or having an indwelling catheter, including staff-administered ostomy care,
incontinence care using protective padding, incontinence briefs, changing
clothes, or a propped urinal. A description of what staff are required to
do 60% or more of the time must be documented in the clinical record.
(iii)
Three TILE points will be given for recipients rated
as:
(I)
Requiring physical or verbal assist or supervision during
entire toileting process, excluding incontinent care, and cannot be left alone.
The functional, medical, or behavioral reason the recipient cannot be left
alone must be documented in the clinical record in the assessment period.
(II)
Receiving scheduled toileting by the staff every two hours
during waking hours, or more often if needed by the resident, as incontinence
management. Recipient does not initiate process and stays dry 60% or more
of the time as the result of staff-initiated scheduled toileting. A description
of staff actions and whether the resident was wet or dry each time he/she
was taken to the toilet must be documented in the clinical record in the assessment
period. Recipients who receive in and out catheterization by the staff two
or more times each day are included in this category.
(5)
Special cases. A recipient who qualifies for more than
one of the 11 TILE case-mix groups is classified in the group with the highest
case-mix index and associated per diem rate. If a provider incorrectly or
incompletely reports data necessary for TILE determination, the recipient
is temporarily classified in the Default TILE 212 group until the data are
corrected as provided by §371.214 of this title.
(6)
Case-mix classifications. Case-mix classifications are
determined by the clinical group in combination with the ADL score as follows:
(A)
TILE 201; heavy care and an ADL score of 8-9;
(B)
TILE 203; heavy care and an ADL score of 6-7;
(C)
TILE 202; rehabilitation and an ADL score of at least 3;
(D)
TILE 204; clinically unstable and an ADL score of 7-9;
(E)
TILE 205; clinically stable and an ADL score of 7-9;
(F)
TILE 206; clinically unstable and an ADL score of 4-6;
(G)
TILE 207; clinically stable and an ADL score of 5-6;
(H)
TILE 208; clinically unstable and an ADL score of 3;
(I)
TILE 209; clinically stable and an ADL score of 4;
(J)
TILE 210; clinically stable, an ADL score of exactly 3,
and includes a mental/behavioral subcategory;
(K)
TILE 211; clinically stable and an ADL score of 3;
(L)
Default TILE 212 ; provider incorrectly or incompletely
reports data necessary for TILE determination or if the facility fails to
cooperate fully with nurse reviewers as provided by §371.214 of this
title.
(7)
Required signatures. The Texas Nursing Facility CARE form
must be signed by the director of nurses or the acting director of nurses
and the facility nurse assessor, one of whom has received TILE training, as
required by §371.214 of this title (relating to Texas Index for Level
of Effort (TILE) Assessments). If the form is completed for a hospice recipient
residing in the nursing facility, the form must also be signed by a hospice
nurse assessor. These signatures certify the information claimed is accurate
and complete and subject to penalties for falsification, as provided in 42
Code of Federal Regulations, Part 1003. A copy of the electronically transmitted
form with the required signatures must be maintained by the nursing facility.
§371.213.Utilization Review and Control Activities Performed by Texas Health and Human Services Commission (Commission).
(a)
According to state law and the state plan requirements,
the Texas Health and Human Services Commission (Commission) staff conducts
required on-site activities related to utilization review. These activities
include the review of all children residing in nursing facilities for quality
of care regardless of payment source.
(b)
Facility staff must cooperate with and fully support the
Commission staff during on-site reviews and facilitate personal contact with
and observation of each resident and the review of each resident's clinical
records.
§371.214.Texas Index for Level of Effort (TILE) Assessments.
(a)
Nursing facility nurse assessors assess recipients for
TILE determination by completing Texas Nursing Facility Client Assessment,
Review, and Evaluation (CARE) forms. The nursing facility and hospice nurse
assessors assess hospice recipients who are residing in nursing facilities
for TILE determination by completing the Texas Nursing Facility CARE forms.
Hospice recipients residing in nursing facilities must have all eligibility
forms submitted prior to Texas Department of Human Services (DHS) paying nursing
facility room and board to the hospice provider. These assessments establish
TILE classifications as described in paragraphs (1)-(8) of this subsection.
Nursing facility nurse assessors must complete and pass the Texas Health and
Human Services Commission (Commission) TILE training course with a minimum
score of 70%. The nurse's license number will be registered with the National
Heritage Insurance Company (NHIC). Hospice nurse assessors may complete the
Commission's Texas TILE training course.
(1)
Preadmission assessments do not establish a TILE classification.
(2)
Admissions assessments establish TILE classifications as
follows:
(A)
If the nursing facility resident has not previously attained
a permanent medical necessity or if an individual is simultaneously admitted
to a nursing facility as a hospice recipient, the nurse assessor submits an
admission assessment within 20 calendar days of admission, as provided in
the Texas Administrative Code (TAC), Title 40, Part 1, Chapter 19, Subchapter
Y, §19.2403 (relating to Utilization Review Process). The admission assessment
establishes a medical necessity (MN) and a TILE classification for 180 days.
(B)
If the nursing facility resident has previously attained
a permanent MN, the admission assessment is completed on an abbreviated form,
which sets TILE only.
(3)
One medical necessity review (MNR) is required 180 days
after the effective date of the admission assessment. If the MNR indicates
an MN for nursing facility care, DHS will notify the facility of the permanent
MN. This notification becomes a part of the resident's permanent medical record.
A permanent MN will be lost only if a resident is discharged to home for over
30 days. The MNR may also establish a new TILE classification.
(4)
After the establishment of permanent MN, residents with
a 211 TILE require no further assessment unless there is a change in their
condition. All other TILE levels require a review every 180 days.
(5)
If a recipient's medical condition changes to the extent
that he qualifies for a different TILE, an off-cycle assessment may be submitted.
If a nursing facility resident becomes a hospice recipient, an off-cycle assessment
must be submitted. Only two off-cycle assessments for any one nursing facility
resident or hospice recipient residing in a nursing facility are permitted
per calendar year, one from January through June and one from July through
December. The off-cycle assessment for a nursing facility resident that becomes
a hospice recipient is not included in the two allowable off-cycle assessments.
The assessment sets a new schedule for submission of forms if permanent MN
has been achieved. Before permanent MN, the assessment will not set a new
schedule for submission of forms.
(6)
A new CARE form may be submitted for the purpose of correcting
errors previously made in the assessment portion of the form (Items 30, 31,
and 50-99). The submission of the correction does not change the schedule
for submission of forms or necessarily change the TILE group. Corrections
must be submitted within 60 days from the date of assessment on the incorrect
form. The Commission will not accept requests for changes submitted:
(A)
over 60 days from the date of assessment on the incorrect
form; or
(B)
after notification of an on-site review date.
(7)
If a recipient experiences a significant change related
to mental illness, mental retardation, and/or a related condition that indicates
that the recipient might benefit from specialized services, a request for
a recipient Preadmission Screening and Resident Review (PASARR) must be submitted
to the local DHS' PASARR office using a CARE form.
(8)
A facility may submit a request for retroactive payment
in the following instances:
(A)
when a facility provides care for a recipient for a period
of time not covered by an effective MN determination at admission or by assessment
CARE forms as provided in TAC, Title 40, Part 1, Chapter 19, Subchapter Y, §19.2413
(relating to Reconsideration of Medical Necessity Determination and Effective
Dates); or
(B)
if a recipient is found to be otherwise eligible for Medicaid
for the three months prior to the month of his date of application for Medicaid
assistance as provided in TAC, Title 40, Part 1, Chapter 19, Subchapter Y, §19.2408
(relating to Retroactive Medical Necessity Determinations).
(C)
The effective date for a retroactive payment for a hospice
recipient may not be prior to June 1, 2001.
(b)
Nursing facilities with new directors of nurses, nurse
managers and nurse assessors may request a one time 60-day waiver to complete
the TILE assessments. At the end of the 60-day waiver period, the nursing
facility director of nurses, nurse manager and nurse assessor must complete
and pass the Commission TILE training course with a minimum score of 70%.
The Commission assumes cost for the initial TILE training course. The facility
or individual shall assume the cost of any additional required training and
testing for the same individual.
(c)
Review and appeal of case-mix assessments. Commission nurse
reviewers conduct desk reviews and in-depth, on-site reviews of Texas Nursing
Facility CARE forms completed by nursing facility and hospice staff to verify
TILE and medical necessity information. The assessment forms and the entire
medical record of a minimum of ten Medicaid recipients, excluding TILE 211,
will be reviewed. Forms expired over 12 months will not be reviewed.
(1)
Commission nurse reviewers will notify nursing facilities
and hospice providers a minimum of two working days prior to routine on-site
visits. They will be given information regarding the recipients whose medical
records will be reviewed, the time period covered by the review and the accommodations
necessary for the review. No notice is required for facilities whose last
two on-site visits resulted in corrective action; visits for investigation
of TILE issues, including suspected fraud; or visits requested by another
state agency. For routine onsite visits, nurse reviewers must be given prompt
access to information and resources necessary to conduct the TILE review.
Failure to do so may result in the nursing facility being classified in the
Default TILE 212 until the visit can be conducted. Once the visit is conducted
and the facility demonstrates the medical necessity of a higher TILE classification,
the default TILE 212 will be released retroactive to the date of the event
that prompted the default. A default TILE will not be applied in the event
of unforeseen environmental conditions.
(2)
When a Commission nurse reviewer determines that the TILE
classification is not substantiated and/or does not accurately reflect the
recipient's status, the reviewer will discuss the error and give the provider
an opportunity to submit additional documentation to support the item claimed.
An exit conference is held with the nursing facility staff following the review.
Hospice staff may attend if hospice recipients are reviewed. Additional documentation,
staff interviews and nursing observation to support nursing facility resident
and hospice recipient assessments may be presented at any time during the
review process or the exit conference, and adjustments may be made. The nursing
facility administrator and hospice provider are given formal notification
of all TILE changes within 15 working days of the exit conference.
(A)
At the direction of the Commission, DHS recoups funds previously
paid to the nursing facility and/or hospice provider under incorrect TILE
classification. At the direction of the Commission, DHS pays the nursing facility
and/or the hospice provider any increase due to a change in TILE classification.
(B)
The change in TILE classification and per diem rate is
effective retroactively to the "effective date" of the assessment reviewed.
(3)
If a Commission nurse reviewer and a facility or hospice
nurse assessor are unable to agree about an assessment, either provider may
submit a reconsideration request to the Commission's state office nurse specialist.
(A)
The request for the reconsideration and all documentation
supporting the requested changes must be received by the state office nurse
specialist within 15 days of receipt of formal notification of TILE changes.
(B)
The state office nurse will review all material submitted
by the provider and all information collected during the Utilization Review.
(C)
The TILE classification and associated per diem rate specified
by the Commission nurse reviewer remain in effect during the reconsideration
period.
(D)
If the reconsideration establishes that the Commission
has changed a TILE classification in error, the Commission will direct DHS
to correct the error retroactively.
(4)
If the provider disagrees with the findings of the state
office nurse specialist, the provider may initiate a formal appeal, as stated
in Title 40, Chapter 79, Subchapter Q (relating to Contract Appeals Process)
by submitting a request to the Director, Hearings Department, Mail Code W-613,
Texas Department of Human Services, P.O. Box 149030, Austin, Texas 78714-9030
within 15 days of receipt of notification of the results of the reconsideration.
(A)
The TILE classification and associated per diem rate specified
by the state office nurse specialist remain in effect during the formal contract
appeal.
(B)
If the contract appeal process establishes that the Commission
has changed a TILE classification in error, the Commission will direct DHS
to correct the error retroactively.
(d)
TILE error rates on the assessment forms reviewed which
exceed 20% may result in a facility's undergoing a monitoring period.
(1)
During the monitoring period, nursing facilities may not
submit Texas Nursing Facility CARE forms to NHIC either electronically or
by mail. All Texas Nursing Facility CARE forms, which include both nursing
facility residents and hospice recipients residing in nursing facilities,
must be submitted to the Commission nurse reviewers.
(2)
The length of the monitoring period is 60 days. If accuracy
of forms is still at an unacceptable level at the end of 60 days, the Commission
may give a one-time, 30-day extension, if the facility has shown an attempt
to improve their accuracy. If forms are not accurate at the end of 90 days,
the Commission places the facility on compliance.
(e)
Compliance may result when a facility has a 20% or greater
error rate on the current assessment forms reviewed and one of the following:
a 20% or greater error rate by the end of a monitoring period; lack of documentation
regarding key assessment items; a history of noncompliance; or medical records
that contain alterations in areas designed to lower the TILE level and increase
the payment.
(1)
Within a 30 to 45-day compliance period, facilities must
complete new Texas Nursing Facility CARE forms on all recipients not in the
original review.
(2)
During the compliance period, facilities may not submit
Texas Nursing Facility CARE forms to NHIC either electronically or by mail.
All Texas Nursing Facility CARE forms, which include both nursing facility
residents and hospice recipients residing in nursing facilities, must be submitted
to Commission nurse reviewers.
(f)
If a facility has a 20% or greater error rate by the end
of the compliance period, the Commission will direct DHS to hold vendor payments
to the facility until the facility has less than a 20% error rate. A decision
to place a facility on vendor hold will be made by UR staff in state office.
(g)
The nursing facility nurse assessor and the director of
nurses must complete and pass the Commission TILE training course with a minimum
score of 70% within 60 days of the beginning of the compliance period or vendor
hold. If a score of 70% or higher is not achieved by the director of nurses
or facility nurse assessor, the nursing facility will remain on corrective
action until such time as the acceptable score of 70% is achieved.
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 June 25, 2001.
TRD-200103613
Marina S. Henderson
Executive Deputy Commissioner
Texas Health and Human Services Commission
Effective date: July 15, 2001
Proposal publication date: April 27, 2001
For further information, please call: (512) 424-6576