1 TAC §§371.212 - 371.214
The Health and Human Services Commission (HHSC) proposes
to amend Chapter 371, Medicaid Fraud and Abuse Program Integrity, Subchapter
C, Utilization Review, §371.212, Case Mix Classification System, §371.213,
Utilization Review and Control Activities Performed by Texas Department of
Human Services, concerning the authority for on-site utilization review activities,
and §371.214, Texas Index for Level of Effort (TILE) Assessments.
The 75th Legislature, Regular Session, 1997, through Senate Bill 30, directed
the transfer of Utilization Assessment and Review and all its powers, duties,
functions, and programs from the Texas Department of Human Services (TDHS)
to HHSC, effective September 1, 1997. Rules were officially transferred in
March 2000, without language change, from Title 40 of this code to Title 1.
One of the functions transferred was the case mix review of nursing facilities.
"Case mix" refers to a method of classifying recipients based on their resource
and service needs and determining a payment rate based on that classification.
HHSC's Utilization Review (UR) staff has been evaluating the current process
since the transfer of the case mix review function to HHSC in 1997. UR staff
has determined that these proposed rule amendments are needed to increase
the UR staff's effectiveness in the identification, prevention, and elimination
of fraud, abuse, waste, and neglect, as well as the enforcement of applicable
laws and rules. In addition, the proposed rule amendments add or delete language
in order to clarify requirements, correct grammar and spelling, eliminate
outdated terms, and reflect current terminology.
These proposed amendments to the case mix rules were developed in conjunction
with a work group consisting of representatives from the Texas Health Care
Association, the Texas Association of Homes and Services for the Aging, the
Texas-New Mexico Hospice Association, New Bell General Services, National
Heritage Insurance Company, and state health and human services agencies.
Proposed §371.212 generally describes the case mix classification
system and facility documentation requirements, gives direction on completing
the Client Assessment Review and Evaluation (CARE) form, and gives definitions
of the various clinical categories necessary to establish a Texas Index for
Level of Effort (TILE) assessment. Under the proposed rules, there are changes
in the Rehabilitation/Restorative requirements, oxygen administration requirements,
respiratory therapy requirements, wound dressing requirements, training in
reference to feeding, signature requirements, and the word "permanent" was
replaced with "significant", including the definition of that term.
Proposed §371.213 deletes specific language in regard to the quality
of care review of children. HHSC staff determined that there is no longer
a need to conduct quality of care reviews on children in nursing facilities,
because there are multiple agencies currently conducting these reviews, i.e.,
DHS, PASSAR, MHMR, etc.
Proposed §371.214 generally describes and provides direction for the
completion of the TILE assessment. Under the proposed rules, there are changes
in the process for conducting routine TILE reviews, the reconsideration process,
the TILE training requirements for providers, and the corrective action process.
Also, language in reference to the Default TILE 212 is deleted.
Tom Suehs, Deputy Commissioner for Financial Services, has determined that
for each year of the first five years the proposed rules are in effect, the
public will benefit from adoption of the rules by the resulting clarification
of the criteria that govern the routine case mix review process.
Tom Suehs, Deputy Commissioner for Financial Services, has also determined
that for each year of the first five years the proposed rules are in effect
the proposed rules will have a positive fiscal impact to on state government.
The estimated cost savings to the state agency will be approximately $56,000.00
due to the shifting of the financial responsibility for TILE training from
the state to the Nursing Facility Providers. Enforcing or administering the
amended rules does not have foreseeable implications relating to costs or
revenues of state or local governments, other than the cost savings to the
state noted above Small and Micro-business Impact Analysis
The proposed rules may result in additional costs to persons required to
comply with the rules. The rules may have an adverse effect on small or micro-businesses.
That adverse effect would be a result of shifting the financial responsibility
for TILE training from the state to the Nursing Facility Providers, including
those Providers that are small and micro businesses. Pursuant to Section 2006.002
of the Government Code, HHSC considered the measures that could be taken to
reduce the adverse impact on micro or small businesses. It is not feasible
for HHSC to exempt micro or small businesses from all or part of the rules
or to establish separate compliance or reporting requirements for small or
micro businesses. However, to reduce the anticipated adverse effect, HHSC
eliminated the requirement that nursing facility staff take the TILE training
during the corrective action process and, in practical effect, reduced the
number of nursing facility staff required to take the TILE training. The proposed
rules could result in only slightly increased cost or even a cost neutral
situation for the providers who are small or micro businesses in that fewer
staff have to take TILE training and have to take it less frequently than
under the previous rules. The cost of compliance for small or micro businesses
per each employee would be roughly the same as the cost of compliance for
the largest Nursing Facility Providers affected by the proposed rules. It
is not anticipated that the proposed rules will have a negative effect on
local employment.
The Commission has determined that none of the proposed rules is a "major
environmental rule," as defined by §2001.0225, Government Code. "Major
environmental rule" is defined to mean a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect, in a material way, the economy, a
sector of the economy, productivity, competition, jobs, the environment, or
the public health and safety of the state or a sector of the state. None of
the proposed rules is 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 their property that would otherwise exist in the absence
of government action and, therefore, do not constitute a taking as defined
in Texas Government Code §2007.002. The majority of the proposed rules
are administrative and do not impose any new regulatory requirements. The
proposed rules are reasonably taken to fulfill requirements of state law.
Comments on the proposed rules may be submitted in writing to Sandra Brown,
Nursing Facility Manager, Utilization Review, Texas Health and Human Services
Commission, P.O. Box 13247, Austin, Texas 78711-3247, or by e-mail to Sandra.Brown@hhsc.state.tx.us.
Comments will be accepted for 30 days following publication of this proposal
in the
Texas Register
.
The amendments are proposed 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 section 531.021(a),
Government Code, which authorizes HHSC to administer federal medical assistance
(Medicaid) program funds.
The proposed rules affect Chapter 32 of the Human Resources Code.
§371.212.Case Mix Classification System.
The case mix classification system is defined in terms of
the
recipient's
[
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
. The
[
,except in any of the
] following instances
are exceptions to the
four week assessment period
:
(A)
If the recipient has experienced what appears to be a
significant
[
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.
"Significant change" as used
here means a major decline or improvement in the resident's status that will
not normally resolve itself without further intervention by staff or by implementing
standard disease related clinical interventions, and requires review of the
plan of care.
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
the date of
admission or readmission
to the nursing facility, until
the date the assessment is completed
.
(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
or HHSC
)
nurse reviewers
may
[
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
may
[
could
] be the basis for an adjustment in TILE.
The
adjustment would be made based on a review of the available clinical record
documentation, and, if necessary, staff interviews and observation of the
recipient.
(D)
Suspected fraudulent documentation, such as [
falsified
or fabricated
] medical records
that appear to have been altered,
falsified, or fabricated, will
[
, may
] result in a referral
for investigation to the
Office of Inspector General's (OIG)
Medicaid
Program Integrity
(MPI)
Division
Health and Human Services
Commission. This referral will be made
[
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
recipient
[
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.
A recipient who receives rehabilitation and restorative care must be able
to participate and/or follow instructions from the therapist and/or nursing
staff, in order to maintain or improve on goals achieved during PT or OT.
(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
a
[
an identifiable,
]
documented event, i.e., an illness,
traumatic
injury or [
physical change or
] an exacerbation
/significant improvement
of
a chronic
medical condition
[
illness
] in the past six
months
, which resulted in a visible change in the individual's ability
to physically perform ADLs. The event and change in ADL functioning must be
documented in the clinical record
[
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
, and/or other healthcare professionals in addition
to the therapist, before the rehab services are initiated
[
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,
and this
[
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
(therapy week: a seven-day
period beginning the day of the first therapy treatment);
and
(V)
reimbursable
[
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
at discharge from skilled therapy,
must be
[
and
] developed by the restorative team,
and
[
, which must include and be
] signed by the therapist and
a registered nurse;
(II)
begin during the assessment period
; the restorative
care sessions provided under Medicare will not count towards the required
restorative care sessions for Medicaid
;
(III)
begin within 14 days of the therapist's written restorative
plan of care,
which must be provided to the commission nurse reviewer(s)
upon request
;
(IV)
be provided for a minimum of 24 sessions within eight
therapy weeks,
which can be provided no more than two sessions per day,
no less than four 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
are
[
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
subparagraph
[
paragraph
] are met except clause
(ii)
[
(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)
Amputation
[
Recent amputation
] of
arm(s), leg(s),
[
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,
during
[
in
] the assessment period. A description of the
seizures
[
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
and
[
,
] 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
and
[
,
]
treated [
and resolved
] outside the facility and are no longer symptomatic
or
[
and
] UTIs identified by
routine
urinalysis
or urinalysis for culture and sensitivity
alone are excluded. The signs,
symptoms
and
[
,
] 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
state
[
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
recipient's
[
resident
] and nursing participation in the process. Frequency of staff intervention
must be documented.
(vi)
Oxygen administration, [
which
] must be documented
every day for a minimum of two weeks, including the method of administration,
[
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
for a minimum of two weeks,
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
by nursing
to an open
wound at least two times per day
for a minimum of two weeks
, 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.
Recipients qualify
[
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
assistance
[
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.
Documentation must support
that facility staff provided retraining 60% or more of the time to facilitate
the recipients' involvement in self performance of eating.
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,
gastrostomy
[
gastrostromy
]
tube, percutaneous endoscopic
gastrostomy
[
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
is
[
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
recipient
[
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
recipient
[
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
must be certified
as having received, and passed, Commission-approved
[
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.
Physicians' signatures must
be present on all required Purpose Codes. A physician may delegate task(s)
to a physician assistant, nurse practitioner, or clinical nurse specialist
who is not an employee of the facility but who is working in collaboration
with a physician. Services must be provided in the context of applicable state
laws, rules, and regulations governing the practice of physician assistants,
nurse practitioners, and clinical nurse specialists.
(A)
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.
(B)
CARE forms that do not have
the required signatures on the copies maintained in the facility or that cannot
be located will be considered to be invalid assessments. The first time a
facility is found to be out of compliance with this requirement, the recipient's
TILE for the assessment period covered at the time of the review, will count
towards the overall error rate for the onsite review. Subsequent findings
of non-compliance with these requirements during the next review may result
in a default 212 for the effective period of the invalid assessment. If the
default 212 is implemented, the facility will be able to submit a reconsideration
for the default 212.
(C)
CARE forms submitted with the
license number of a former employee or an expired nursing license number may
result in the implementation of a default 212 for the effective period of
the invalid assessment. If the default 212 is implemented, the facility will
be able to submit a reconsideration for the default 212. The provider(s) and
employee(s) involved may be referred to the Commission' s Office of Inspector
General with a recommendation for an investigation of the facility, and a
referral of the nurses to the Board of Nurse Examiners.
§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
and/or interview
of each resident,
and the review of each resident's clinical records.
§371.214.Texas Index for Level of Effort (TILE) Assessments.
(a)
Texas Index for Level of Effort (TILE) Assessment
and Client Assessment Review and Evaluation (CARE) form completion. TILE assessments
are primarily based on the nursing facility nurse assessor's (FNA) evaluation
of the recipient. This evaluation may also be supplemented by staff interviews
and documentation in the medical record. TILE assessments are documented on
the CARE form, and must be signed by the FNA that completed the assessment.
[
Nursing facility nurse assessors assess recipients for TILE determination
by completing the Texas Nursing Facility Client Assessment, Review and Evaluation
(CARE) forms. The nursing facility and hospice nurse assessors assess hospice
patients 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)-
(9)
[
(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)
If the nursing facility recipient
is also a hospice recipient, the following must be completed before the Texas
Department of Human Services (DHS) will reimburse nursing facility room and
board to the hospice provider:
(A)
The hospice nurse assessor must also evaluate
the hospice recipient and either:
(i)
sign the CARE form completed by the nursing
facility assessor to indicate complete agreement with the assessment; or
(ii)
request the nursing facility assessor to complete
a new CARE form based on a joint assessment, and then sign to indicate complete
agreement with the assessment..
(B)
The hospice provider must submit the Texas Medicaid
Hospice Program Recipient Election/Cancellation/Discharge Notice (Form 3071),
and the TDHS Medicaid/Medicare Hospice Program Physician Certification of
Terminal Illness (Form 3074) forms to the DHS, Provider Claims Services Department.
(2)
[
(1)
] Preadmission assessments do
not establish a TILE classification.
(3)
[
(2)
] Admissions assessments establish
TILE classifications as follows:
(A)
If the nursing facility
recipient
[
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
begins the
[
establishes a
] medical necessity (MN)
process,
and [
a
] TILE classification for 180 days.
(B)
If the nursing facility
recipient
[
resident
] has previously attained [
a
] permanent MN,
an
[
the admission
] assessment
with a purpose code 4
is completed
[
on an abbreviated form
], which sets TILE only.
(4)
[
(3)
]
Medical
[
One medical
] necessity review (MNR) is required 180 days after the effective
date of the admission assessment.
Nursing facilities can submit the renewal
form up to 45 days prior to the expiration date of the current form. MN is
established by completing an assessment with a purpose code 3.
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.
The permanent MN will be lost if
a recipient is discharged to home over 30 days.
(5)
[
(4)
] After the establishment of
permanent MN, recipients 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.
(6)
[
(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
recipient
[
resident
] becomes a hospice recipient
or terminates hospice services
, an off-cycle assessment must be submitted. Only two off-cycle assessments
for any one nursing facility
recipient
[
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
recipient
[
resident
] that becomes a hospice recipient
or terminates hospice services
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.
(7)
[
(6)
] A new
corrected
CARE
form
and supportive documentation
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.
The new corrected CARE form and the supportive documentation
[
Corrections
] must be submitted within 60 days from the date of
the
assessment
that contained error(s)
[
on the incorrect
form
]. The Commission will not accept requests for changes submitted:
(A)
over 60 days from the date of
the
assessment
that contained the error(s)
[
on the incorrect form
];or
(B)
on previously submitted forms with the same assessment
date
[
after notification of an on-site review date
].
(8)
[
(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
Recipient
[
Resident
] Review (PASARR) must be submitted
to the local DHS' PASARR office using a CARE form.
(9)
[
(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)
TILE training. Nursing facility directors of nursing
and nurse assessors must complete and pass the Texas Health and Human Services
Commission (Commission) approved TILE training course with a minimum score
of 70% in order for the nurse's license number to be registered with the Medicaid
Claims Administrator (MCA). The TILE training certification will be effective
for a two-year period. Currently certified TILE nurses will be granted a one
year grace period from the effective date of the rule.
Nursing facilities
with new directors of nurses
or
[
, nurse manager 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,
or
[
, nurse manager and
] nurse assessor
must
have completed and passed
[
complete and pass
] the
Commission's approved
[
Commission
] TILE training course with
a minimum score of 70%.
The hospice nurse assessors may complete the
Commission's approved TILE training course, either on-line or by correspondence.
Providers are required to pay $30.00 each time they register to take the on-line
TILE training course. The correspondence course will continue to be available
for a $30.00 fee plus an additional $10.00 handling fee.
[
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
conduct unannounced
[
notify nursing facilities and hospice providers a minimum of
two working days prior to routine
] on-site visits.
The decisions
regarding the validation of a claimed TILE, will be based on documentation
that is presented to the nurse reviewers during the on-site visit. Forms expired
over 12 months will not be routinely reviewed.
[
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
all on-site
[
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
information for the assessment period
[
documentation
] to support the item claimed. An exit conference
is held with the nursing facility staff following the review. Hospice staff
are encouraged to
[
may
] attend if hospice recipients are
reviewed.
The nursing facility and hospice staff may submit for consideration,
additional
[
Additional documentation, staff interviews and nursing
observation to support nursing facility resident and hospice recipient assessments
may be presented
]
information for the assessment period
,
at any time during the review process or the exit conference[
, and adjustments
may be made
]. The
Commission gives the
nursing facility administrator
and hospice provider [
are given
] formal
written
notification
of all TILE changes within 15 [
working
] days of the exit conference.
(A)
At the direction of the Commission, DHS
recovers
[
recoups
] funds [
previously
] paid to the nursing facility
and/or hospice provider under incorrect TILE classification. At the direction
of the Commission, DHS
reimburses
[
pays
] the nursing
facility and/or the hospice provider any increase due to a change in TILE
classification.
(B)
The
changes
[
change
] in TILE classification
and per diem rate
are retroactive
[
is effective retroactively
] to the "effective date" of the assessment reviewed.
(3)
If
the nursing facility and/or hospice provider disagrees
with the Commission's TILE classification
, [
a Commission nurse
reviewer and a facility or hospice nurse assessor are unable to agree about
an assessment,
] either
, or both, provider(s)
[
provider
] may submit a reconsideration request to the
Commission
[
Commission's state office nurse specialist
].
(A)
The request for [
the
] reconsideration and all
documentation supporting the requested changes must be received by
the
Commission
[
the state office nurse specialist
] within 15
days of
the facility's
receipt of formal notification of TILE changes.
(B)
Commission staff
[
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
remains
[
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
reconsideration
determination
[
findings of the state office nurse specialist
],
the provider may
request
[
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
the facility's
receipt of notification
of the results of the reconsideration.
(A)
The TILE classification and associated per diem rate specified
in the reconsideration determination remains
[
by the state office
nurse specialist remain
] in effect during the formal [
contract
] appeal.
(B)
If the
formal
[
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)
Error rate. The error rate for a TILE review is determined
by dividing the number of forms with an identified TILE decrease by the total
number of forms reviewed
.
(1)
Frequency of on-site TILE reviews may be
determined by the accuracy of the assessment and error rate history. Nursing
facilities whose TILE error rates are below 25% may be visited less frequently,
but within 16 month intervals.
TILE error rates
of 25% or higher,
may require a return visit within 7 months
[
on the assessment forms
reviewed which exceeds 20% may result in a facility's undergoing a monitoring
period
].
(2)
If the TILE error rate is 20%
or higher on the return visit, the Commission may direct DHS to hold vendor
payment to the facility, including pass through funds to hospice providers
until the facility's error rate is below 20%. During a vendor payment hold,
facilities may not submit CARE forms to the MCA either electronically or by
mail. All CARE forms and supportive documentation, which includes both NF
recipients and hospice recipients, must be submitted to HHSC.
(3)
Corrective action plan. For
hospice providers, deficient practice in documentation may result in a corrective
action plan.
[
(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 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 January 16, 2004.
TRD-200400360
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 29, 2004
For further information, please call: (512) 424-6576