1 TAC §§354.2401, 354.2403, 354.2405, 354.2407
The Health and Human Services Commission (HHSC) proposes
amendments to §354.2401 Definitions, §354.2403 Monitoring and Review, §354.2405
Utilization Control Methods and §354.2407 Recipient Rights. The proposed
amendments are pursuant to Medicaid recipient utilization review and control
methods. The proposed amendments refine the process for recipient utilization
review, periodic utilization re-assessments and control methods.
The proposed amendments to §354.2401 add new definitions to more accurately
reflect the essential components of the program. The proposed amendments to §354.2403
outline the recipient identification and evaluation process for review of
possible limited status or the termination of limited status. Utilization
control methods in proposed amendments to §354.2405 more clearly describe
the functional and operational elements of the program including the recipient
notification, the designated primary care providers and primary care pharmacy
functions. Proposed amendments to §354.2407, in accordance with federal
and state regulations, give timely and adequate notice of the action with
procedures for requesting a fair hearing.
Don Green, Chief Financial Officer, has determined that during the first
five years that the proposed amendments are in effect, there will be no fiscal
implications for state government as a result of enforcing or administering
the sections. The anticipated cost savings associated with recipient utilization
reviews and primary care providers and primary care pharmacies are achieved
through the implementation of the proposed amendments, §354.2403 and §354.2405.
However, the amount, if any, cannot be determined The proposed amendments
to this subchapter will not result in any fiscal implications for local health
and human services agencies. Local government will not incur additional costs.
Mr. Green has also determined that for each year of the first five years
the proposed amendments are in effect, the public will benefit from adoption
of the amendments. The anticipated public benefit will be to ensure that inappropriate
over utilization will be reduced. The proposed amendments do not contain any
substantive changes for recipients and are not expected to have any significant
impact on access to care.
The proposed amendments will not result in additional costs to persons
required to comply with the amendments and do not have any anticipated adverse
effect on small businesses and micro-businesses. Medicaid enrolled primary
care pharmacies will be required to alter their business practices in order
to comply with the amendments as proposed. Medicaid enrolled primary care
providers will not be reimbursed for provision of monitoring the limited status
of recipients. HHSC will provide policy notification, information, and assistance
to Medicaid enrolled primary care providers, primary care pharmacies and recipients
in order to assure minimal business impact and the success of the program.
The proposed amendments will not negatively affect local employment.
HHSC has determined that the proposed rules are not a "major environmental
rule" as defined by §2001.0225, Government Code. The proposed rules are
not specifically intended to protect the environment or reduce risks to human
health from environmental exposure.
HHSC has determined that the proposed rules do not restrict or limit an
owner's right to his or her property that would otherwise exist in the absence
of governmental action and, therefore, do not constitute a taking under §2007.043
Government Code.
Comments on the proposal may be submitted to Aurora LeBrun, Associate Commissioner,
Office of Investigations & Enforcement, Texas Health and Human Services
Commission, 1100 W 49th Street, MC Y-927, Austin, Texas 78756-3199 or at (512)
453-0621 within 30 days of publication of this proposal in the
Texas Register
.
A public hearing is scheduled for January 14, 2003, from 10:00 a.m. to
11:30 a.m. The hearing will be held in room #4501, Health and Human Services
Commission, Brown-Heatly Building, 4900 N. Lamar Blvd., Austin, Texas, 78751-2316.
The amendments are proposed under the Texas Government Code, §531.033,
which provides the Commissioner of HHSC with broad rulemaking authority; and
under the Human Resources Code, §32.021 and the Texas Government Code §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
Title XIX Medicaid program in Texas.
The proposed amendments affect the Texas Government Code, Chapter 531,
and Chapter 32 of the Human Resources Code.
No other statutes, articles, or codes are affected by the proposed rules.
§354.2401.Definitions.
The following words and terms, when used in the sections under this
subchapter
[
chapter
], shall have the following meanings,
unless the context clearly indicates otherwise.
(1)
Abuse--Practices that are not
medically necessary and consequently result in an unnecessary cost to the
Medicaid program; improper or excessive use or treatment.
(2)
Conflicting--Incompatible,
unsuitable for use together because of undesirable chemical or physiological
effects. For example, the recipient may receive drugs and/or health care services
which may be inadvisable in the presence of certain medical conditions or
which conflict with the care ordered by another provider.
(3)
Contraindicated--To indicate
the inadvisability of a medical treatment or procedure. The definition is
similar to conflicting.
(4)
Designated Provider--A provider
of medical services enrolled, and in good standing with the Medicaid program
to whom the Medicaid recipient is assigned by the Limited Program. The designated
provider may include primary care providers and primary care pharmacies.
(5)
Designated Provider Referral--Communication
from the designated provider to another enrolled Medicaid provider requesting
certain services be provided to the recipient on Limited Status.
(6)
Duplicative--To do over or
again, without due justification. The word duplicative applies to, but is
not limited to, use of drugs and health care services. For example, the recipient
received health care services from two or more providers for the same or similar
condition(s) in an overlapping time frame or the recipient received two or
more similarly acting drugs in an overlapping time frame, which may result
in a harmful drug interaction or an adverse reaction.
(7)
[
(1)
] Emergency medical condition--A
medical condition (including emergency labor and delivery) manifesting itself
by acute symptoms of sufficient severity (including severe pain), such that
a prudent layperson, who possesses an average knowledge of health and medicine,
could reasonably expect the absence of immediate medical care could result
in:
(A)
placing the patient's health in serious jeopardy;
(B)
serious impairment to bodily functions;
(C)
serious dysfunction of any bodily organ or part;
(D)
serious disfigurement; or
(E)
in the case of a pregnant woman, serious jeopardy to the
health of the fetus.
(8)
[
(2)
] Emergency services--Covered
inpatient and outpatient services that are furnished by a provider who is
qualified to furnish such services under a Medicaid provider agreement and
are services which are needed to evaluate or stabilize an emergency medical
condition.
(9)
Excessive Use or Overuse--Exceeding
what is usual, medically necessary or customary use of Medicaid services and
benefits. Also defined as, but not limited to:
(A)
Receipt of treatments, drugs, medical supplies
or other Medicaid benefits from one or multiple providers of service in an
amount, duration, or scope in excess of which would reasonably be expected
to result in a medical or health benefit to the patient; or
(B)
Use exceeding the standards and criteria for
outpatient prescription drug utilization listed in the compendia and peer
reviewed medical literature and/or criteria and standards approved by the
Texas Medicaid Drug Utilization Review Board.
(10)
Fraud--The intentional deception
or misrepresentation made by a person with the knowledge that it could result
in an unauthorized or medically unnecessary benefit. Fraudulent activities
include, but are not limited to:
(A)
Lending or altering a Medicaid card for the
purpose of obtaining medical benefits for which the a person is not legitimately
entitled;
(B)
Falsely representing medical coverage
(C)
Using the Medicaid Identification card of another
and altering or duplicating of a Medicaid ID
(D)
Furnishing incorrect eligibility or false information
to a vendor to obtain treatment
(E)
Possessing blank or forged prescription pads
(F)
Forging, duplicating or altering a prescription
(G)
Knowingly assisting providers in rendering services
or defrauding the Medicaid program
(H)
Selling or trading, or attempting to sell or
trade, drugs or supplies acquired through Medicaid.
(11)
Limited Program--The Medicaid
recipient must access services and benefits through a designated provider.
The Medicaid recipient may be limited to a designated provider if, on review,
it is found the recipient received duplicative, excessive, contraindicated,
or conflicting health care services and /or drugs; or if the review indicates
abuse, misuse, or fraudulent actions related to Medicaid benefits and services.
(12)
Limited Status--The Medicaid
recipient's limitation to a designated provider, either a primary care provider
or primary care pharmacy through the Limited Program. Recipients are limited
for specific periods of time as outlined in §354.2405(c) of this title
(relating to Limited Status Evaluation).
(13)
Misuse--To use incorrectly,
misapply, or illegally use Medicaid benefits or services. To seek or obtain
medical services from a number of like providers and in quantities that exceed
the levels considered medically necessary by current medical practices, standards
and policies. For example, the medical services are not medically necessary
based on the recipient's diagnosis and / or medical condition or conditions
that constitute an abuse of Medicaid benefits and services.
(14)
Primary Care Pharmacy--Pharmacy
vendor who agreed to coordinate pharmacy services for recipients with limited
status. The pharmacy will ensure that all medications prescribed for the limited
recipient are not contraindicated, conflicting, duplicative or excessive and
that the client's use does not represent abuse, misuse or fraud.
(15)
Primary Care Provider--Health
care provider who has agreed to oversee the healthcare benefits and services
of the recipient. The primary care provider will provide and/or direct all
medically necessary care and services for which the recipient is eligible.
The primary care provider can include, but is not limited to, a physician,
physician group, Advance Practice Nurse, outpatient clinic, Rural Health Clinic
(RHC), or Federally Qualified Health Center (FQHC). The designated primary
care provider must be enrolled in Texas Medicaid, not be on payment review
status, not be under administrative action, sanction, or investigation for
failure to comply with Medicaid rules or acceptable Medicaid practices, and
not be under sanction or certain administrative status by the state licensing
board.
(16)
Recipient--Any individual
who is deemed eligible to receive Medicaid benefits and services under the
Texas Medicaid Program.
(17)
Referrals--Complaint information
supplied to the Limited Program regarding recipient use of Medicaid benefits
and services. Sources can include, but are not limited to, providers, state
agencies, law enforcement officials or members of the general public. Referrals
may also be made to other state agencies and/or Medicaid managed care plans.
(18)
Services--Allowable and reimbursable
medical benefits and services under Title XIX Texas Medicaid Program.
(19)
Special Message--A notice
printed on the Medicaid Identification form to alert medical providers that
the recipient's card was used or reportedly as used by an unauthorized person
or persons or for an unauthorized purpose. This message is not considered
a restriction and may be printed on the Medicaid Identification form with
or without the recipient being on limited status.
§354.2403.Monitoring and Review.
(a)
The Health and Human Services
Commission (HHSC), in accordance with federal requirements, identifies Texas
Medicaid eligible recipients for the limited status program.
(1)
The recipient will be assigned to a designated
provider for access to medical benefits and services when:
(A)
The recipient received duplicative, excessive,
contraindicated or conflicting health care services, including drugs, or
(B)
A review indicates abuse, misuse or fraudulent
actions related to Medicaid benefits and services or
(2)
The Limited Program may also warn providers
that the recipients medical identification card was reportedly used by an
unauthorized person or persons, or for an unauthorized purpose. If a warning
card is issued, a message will be printed on the card alerting the provider
to ask the Medicaid recipient for additional identification or to take other
appropriate action.
[
(a)
The Texas Department of Health
in accordance with federal requirements identifies unnecessary, excessive,
or inappropriate use of Medicaid services by a recipient. These determinations
are based on comparisons with statewide patterns of use and will take into
consideration the necessity for utilization.]
(b)
Identification of Recipients
for Review and Possible Limited Status
(1)
Methods to identify recipients for review include,
but are not limited to:
(A)
Primary Source: Analysis of acute care data
for the entire Medicaid population or subsets of the population to determine
medical usage per recipient and to identify recipients usages in excess of
the standards established by HHSC. The analysis will be performed on a frequency
as deemed necessary by the program.
(B)
Secondary Sources: Incoming referrals, such
as referrals from medical providers, state agencies, law enforcement officials
or members of the general public will be reviewed and analyzed on an individual
basis.
(2)
All Medicaid eligible recipients are subject
to being identified for limited status and/or for inclusion of the special
message on their Medicaid identification form regardless of their age, their
program type or their Medicare eligibility.
(3)
Recipients can be considered to be limited to
a primary care provider or pharmacy provider regardless of the referral and/or
review source(s). Consideration may also be given to the special message during
the review.
(4)
The decision to limit a recipient to a designated
provider and/or to issue a special message on the recipient's Medicaid Identification
form will be made by HHSC or the designee.
[
(b)
Reviews are required for a
recipient who receives covered Medicaid services when:]
[
(1)
use of any Medicaid services exceeds 90% as
compared to other Medicaid recipient's use of services; and/or]
[
(2)
there is suspected misuse, overuse, abuse or
fraudulent use of Medicaid services, which include, but are not limited to:]
[
(A)
duplicating or altering prescriptions;]
[
(B)
using non-therapeutic prescriptions;]
[
(C)
exceeding the standards and criteria for outpatient
prescription drug utilization listed in the compendia and peer reviewed medical
literature and/or criteria and standards approved by the Texas Medicaid Drug
Utilization Review Board;]
[
(D)
using the Medicaid Identification card of another
and altering or duplication of a Medicaid ID card;]
[
(E)
furnishing incorrect eligibility or false information
to a vendor to obtain treatment;]
[
(F)
selling, trading, or attempting to sell or
trade drugs or supplies acquired by Medicaid; or]
[
(G)
inappropriate use of emergency room services.]
(c)
Limited Status Evaluation
(1)
The effectiveness of the limited status will
be evaluated during the recipient's limited status period. If required, the
designated provider will be changed or other interventions may be taken by
HHSC to ensure success.
(2)
Evaluation of the need for the Medicaid recipient
to continue in the limited program will be completed prior to the end of the
limitation period.
(3)
Decisions to continue a recipient in the Limited
Program will include, but are not limited to, review of the following:
(A)
Utilization pattern in excess of the established
recognized standards;
(B)
Abuse, misuse or fraudulent actions related
to Medicaid services and benefits;
(C)
Non-compliance resulting in services or medications
received from one or more non-designated providers without a designated primary
care provider referral or in the absence of a medical emergency, including
cash payment for services;
(D)
Designated provider(s) recommendation to continue
the limited status because the recipient has demonstrated non-compliant behavior;
and/or
(E)
Any changes in designated provider made due
to breakdown of the recipient/provider relationship as a result of the recipient's
or the provider's non-compliance.
(4)
Effectiveness of the special message will be
evaluated by HHSC and will remain in effect throughout the assigned time period
as defined in §354.2405(c)(7) of this title (relating to Utilization
Control Methods).
(d)
Limited Status Termination
(1)
Termination of the limited status before or
during the restriction period will be determined by HHSC. This may include
but is not limited to:
(A)
the lack of a designated provider who will accept
responsibility for the client's limited status; or
(B)
a request by the recipient or the designated
provider for consideration of removal of the limited status based on evidence
of medical necessity.
(2)
A medical review can be requested at any time.
§354.2405.Utilization Control Methods.
(a)
The Health and Human Services
commission (HHSC) controls the inappropriate use of medical services by recipients
through the designation of a primary care provider(s).
(1)
Recipient notification-- a notice of intent
to identify as limited status will be sent to the recipient. The notice will
include a form allowing the client the opportunity to select the provider
as their designated provider. The HHSC Limited Program will select a designated
provider for the recipient if the form is not completed and returned to HHSC
no later than 20 days of the date of the notification letter.
(2)
Designated Primary Care Provider or Primary
Care Pharmacy must be enrolled in the Title XIX Texas Medicaid Program, not
be on payment review status, and not be under administrative action, sanction,
or investigation for failure to comply with Medicaid rules or acceptable Medicaid
practices, not be under sanction or certain administrative status by the state
licensing board.
(3)
Changes to Designated Providers(s)
(A)
The recipient may request the Limited Program
change the designated provider.
(B)
The HHSC shall make the determination when a
change in the designated provider is required or warranted.
(C)
A provider change that is not the result of
a recipient's request during the course of the restriction period does not
require recipient approval.
(D)
Changes to a designated provider include but
are not limited to:
(i)
Change of recipient's residence from the geographic
area of the designated provider(s).
(ii)
Notice from the designated provider(s) that
they will no longer serve as the limited provider.
(iii)
Closure of or the relocation of a designated
provider's office.
(iv)
Death of the primary care provider.
(v)
Disenrollment of the designated provider(s)
from the Medicaid program.
(vi)
Notice that the designated provider is under
administrative action, sanction or investigation or failure to comply with
Medicaid rules or acceptable Medicaid practice.
(vii)
Notice that the designated provider is under
sanction or other certain administrative actions by their licensing boards.
(viii)
Primary care provider is over prescribing
medication or services.
(ix)
Primary pharmacy provider is filling prescriptions
from multiple providers other than the primary care provider and the designated
primary care provider referrals.
(x)
Change in the recipient's medical condition,
which the primary care provider is unable to treat or referred to another
provider.
[
(a)
The Texas Department of Health
(department) controls inappropriate use of medical services by recipients.
A recipient has the right to discuss his or her use of medical services with
department staff. The department uses the following control methods.]
[
(1)
Voluntary reduction request. The department
notifies the recipient by letter that the recipient's use of Medicaid services
has been identified as possibly unnecessary, excessive, or inappropriate and
requests that the recipient voluntarily reduce unnecessary, excessive, or
inappropriate utilization in order to avoid more restrictive measures.]
[
(2)
Limited status. The department may limit a
recipient to a designated provider to coordinate the recipient's Medicaid
services. The department identifies a recipient's use of services exceeding
90% as compared to use of like services by other Medicaid recipients. Recipients
are removed from limited status when their utilization of medical services
no longer meets the criteria for limited enrollment. The recipient or recipient's
provider may request a medical review to consider removal of the recipient
from the limited program at any time.]
(b)
Payment for services include,
but are not limited to the following:
(1)
Authorization of non-emergency ambulatory services.
The primary care provider must authorize non-emergency ambulatory services
as determined by the state.
(2)
Payment for pharmacy services. The primary care
pharmacy will assist the Limited Program in ensuring that prescriptions filled
for recipients with limited status are written by the primary care provider
or other health care providers that the primary care provider has made referrals
to for the recipient. HHSC has identified by therapeutic class medications
that require additional monitoring. When these medications are prescribed
by the emergency room provider, the primary care pharmacy may dispense and
be reimbursed for up to 72 hours or three business days of the prescribed
dosage to allow for holidays and weekends. The primary care pharmacy may dispense
and be reimbursed for the reminder of the medication after approval by the
primary care provider or the other providers as deemed appropriate by HHSC.
[
(b)
Provider. A physician of any
specialty who is enrolled as a Medicaid provider and who is not on payment
review status or under investigation for failure to comply with Medicaid rules
or acceptable Medicaid practices may serve as a limited primary care physician.
The primary care physician may refer the recipient for other medical services
or to other medical specialties as needed. A pharmacist enrolled as a Medicaid
provider serves as a coordinator of pharmacy services for recipients enrolled
in the limited program.]
(c)
The length of limitation periods
to a designated provider and/or limited status will be used as follows:
(1)
The initial limited status period will be for
a minimum of 36 months or the duration of eligibility and subsequent periods
of eligibility up to but not exceeding 36 months in the Limited Program. Continued
limited status determination will be made prior to the end of the 36 months
period.
(2)
The second limited status will be for an additional
60 months or the duration of eligibility and subsequent periods of eligibility
up to but not exceeding 60 months. Continued limited status determination
will be made prior to the end of the 60 months period.
(3)
The third limitation period will be for the
duration of eligibility and all subsequent periods of Texas Medicaid eligibility.
(4)
Clients arrested, indicted or convicted for
a crime related to Medicaid fraud will be assigned limited status for 60 months
or the duration of eligibility and subsequent periods of eligibility up to
or equal to 60 months. If the client admits guilt of Medicaid fraud the client
will be limited for 60 months. If the decision is made to continue the recipient
in the Limited Program at the end of the 60 months period the second limitation
period will be for the duration of eligibility, including all subsequent periods
of eligibility.
(5)
Clients returning to the Limited Program after
being removed from the limited status by HHSC or its designee will be placed
at the next level of limitation.
(6)
Recipients will remain in the limited status
regardless of change in eligibility program type or change in address.
(7)
HHSC will utilize the time frames set forth
in paragraphs (1) through (6) of this subsection for the special message stated
on the recipient's Medicaid identification form.
§354.2407.Recipient Rights.
(a)
In accordance with federal and state regulations,
the Heath and Human Services Commission (HHSC) gives timely and adequate notice
of the action to limit the recipient to a designated provider and an opportunity
for a fair hearing. If a hearing is requested, the procedures described in
Chapter 357, Subchapter K, §§357.1-357.11 of this title (relating
to medical fair hearings) apply.
(1)
The recipient can request a
fair hearing within:
(A)
90 days of the initial notification of intent
to assign a designated provider; or
(B)
90 days of the notice to continue the recipient
on limited status is made at the end of a limited period.
(2)
If the request for a fair hearing
is received before the deadline to change the limited status effective date,
HHSC will not take action until the hearing has been held and a final decision
rendered.
(3)
If the request for a fair hearing
is received after the deadline to change the limited status effective date,
the limited status will remain in effect until the hearing has been held and
a final decision rendered.
(4)
The recipient does not have
the right to a fair hearing when the limited status is the result of a misdemeanor
or felony conviction related to fraud and/or abuse of Medicaid benefits and/or
services.
(5)
During the limited status period,
the recipient is not entitled to a fair hearing for denial of either of the
following requests:
(A)
Change in primary care provider
(B)
Termination of the limited status
(6)
The special warning message
is not considered a restriction and does not require a fair hearing.
[
(a)
A recipient receives notices
when placed on limited status. The recipient may designate a provider from
a list of physicians or pharmacists provided by the Texas Department of Health
(department). If the recipient's choice is not received by the department
with 20 business days of the date on the letter, the department designates
a provider for the recipient. Recipients have the right to request a change
of provider.]
(b)
In accordance with federal requirements, the
HHSC
[
department
] ensures reasonable access to Medicaid services
and benefits
. Recipients who are on limited status may receive emergency
care services for an emergency medical condition. Providers other than the
designated providers may provide the emergency care services. The emergency
care provider must certify that the recipient required emergency care services
for an emergency medical condition. [
The program also reimburses providers
to whom the recipient has been referred by his or her designated primary physician
provider.
]
[
(c)
In accordance with federal
and state regulations, the department gives timely and adequate notice of
the action to limit the recipient to a designated provider and an opportunity
for a fair hearing. If a hearing is requested, the procedures described in
Chapter 1 of this title (relating to Texas Board of Health) apply.]
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on December 20, 2002.
TRD-200208425
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 2, 2003
For further information, please call: (512) 424-6576