Part 4.
OFFICE OF THE SECRETARY OF STATE
Chapter 81.
ELECTIONS
Subchapter I. IMPLEMENTATION OF THE HELP AMERICA VOTE ACT OF 2002
1 TAC §81.176
The Office of the Secretary of State, Elections Division,
adopts new §81.176 concerning provisional voting for direct record electronic
voting systems. The rule is adopted without change to the text as proposed
in the September 17, 2004, issue of the
Texas Register
(29 TexReg 8978).
The new section will authorize voting systems to utilize electronic voting
where the results of provisional votes are properly segregated from the totals
until the votes are accepted by the early voting ballot board.
No comments were received concerning the proposed rule.
The rule is adopted under the Texas Election Code (Code), Chapter
31, Subchapter A, §31.003, which provides the Secretary of State with
authority to promulgate rules to obtain uniformity in the interpretation and
application of the Code, and under the Code, Chapter 122, §122.001(c),
which authorizes the Secretary of State to prescribe additional standards
for voting systems.
The Code, Chapter 122, is affected by this adoption.
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 February 2, 2005.
TRD-200500494
Ann McGeehan
Director of Elections
Office of the Secretary of State
Effective date: February 22, 2005
Proposal publication date: September 17, 2004
For further information, please call: (512) 475-2821
Chapter 355.
REIMBURSEMENT RATES
Subchapter J. PURCHASED HEALTH SERVICES
4.
MEDICAID HOSPITAL SERVICES
1 TAC §355.8063
The Health and Human Service Commission (HHSC or the Commission)
adopts amended §355.8063, Reimbursement Methodology for Inpatient Hospital
Services, with changes to the proposed text as published in the October 22,
2004, issue of the
Texas Register
(29 TexReg
9754). The text of the rule will be republished.
The amended §355.8063 allows for subsection (u) to replace the standard
dollar amount (SDA) high-volume add-on factor with a proportionate payment
methodology that allocated payments based on uncompensated care losses of
designated Medicaid high-volume hospitals. The amended rule also adds language
to target increases in high-volume payments to hospitals with Medicaid inpatient
utilization in excess of 160% of the statewide average and distribute the
payments based on Medicaid inpatient days. The amended rule will allow HHSC
to achieve greater Medicaid program budget certainty while simplifying and
streamlining the overall administrative process regarding high-volume Medicaid
payments. The amendment to §355.8063(t)(1) will also add Potter and Randall
counties to the list of urban counties with a publicly-owned hospital or hospital
affiliated with a hospital district that is eligible to receive supplemental
Medicaid payments for inpatient hospital services provided to Medicaid patients.
HHSC received comments regarding the proposed rule during the comment period,
which included a public hearing on October 22, 2004, expressing support for
the rule to implement high-volume payments to non-public, non-state hospitals.
Written and public hearing comments were received from the following associations:
Health Care Association, Tenet, Universal Health Services, Association of
Volunteer Hospitals, Christus Santa Rosa Health Care, Texas Hospital Association,
Christus St. Joseph Hospital, Scott & White Memorial Hospital, Christus
Health Gulf Coast, Trinity Mother Frances Health System and from a Texas State
Representative.
Comment: Comments concerning §355.8063 were received from Health Care
Association, Tenet, Universal Health Services, Association of Volunteer Hospitals,
Christus Santa Rosa Health Care, Texas Hospital Association, Christus St.
Joseph Hospital, Scott & White Memorial Hospital, Christus Health Gulf
Coast, Trinity Mother Frances Health System and from a Texas State Representative
requesting that disproportionate share hospital status be required to qualify
for the high-volume payments.
Response: The Commission acknowledges the comments received. High-volume
payments are intended to provide additional reimbursement for higher medical
assistance costs and indigent care cost of both DSH and non-DSH hospitals
that treat higher levels of low-income and indigent patients. The supplemental
payments allow both DSH and non-DSH hospitals to better cover the cost of
serving Medicaid patients, thus assuring continued provider participation
in the Medicaid program and high quality healthcare for Medicaid clients.
No change was made to the rule in response to these comments.
Comment: HHSC received a comment from an HHSC staff member who recommended
some grammatical changes to the rule.
Response: HHSC agrees with the commenter. The rule was revised to include
the grammatical changes suggested by the HHSC staff member.
The amendment is adopted under the Texas Government Code, §531.033,
which provides the commissioner of HHSC with broad rulemaking authority; 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
(Medicaid) program in Texas; and the Texas Government Code, §531.021(b),
which provides HHSC with the authority to propose and adopt rules governing
the determination of Medicaid reimbursements.
§355.8063.Reimbursement Methodology for Inpatient Hospital Services.
(a)
Introduction. Except as otherwise specified in subsection
(q) of this section, the Texas Medical Assistance Program (Medicaid) reimburses
hospitals, except in-state children's hospitals, for covered inpatient hospital
services using a prospective payment system. In-state children's hospitals
are reimbursed for covered inpatient hospital services using the methodology
described in subsection (o) of this section. For hospitals other than in-state
children's hospitals, the department or its designee groups hospitals into
payment divisions using the average base year payment per case in each hospital
after adjusting each hospital's base year payment per case by a case mix index,
a cost-of-living index, and a budgetary reduction factor of 10%. The budgetary
reduction factor for admissions occurring in state fiscal year 1990 (September
1, 1989, through August 31, 1990) is 7.0% and the budgetary reduction factor
for admissions occurring in state fiscal year 1991 (September 1, 1990, through
August 31, 1991) is 5.5%. For admissions occurring in state fiscal year 1992
(September 1, 1991, through August 31, 1992) and subsequent state fiscal years,
a budgetary reduction factor is not applied. The payment divisions are separated
into $100 increments. If a payment division has less than ten observations
for Medicaid data, the department or its designee considers that payment division
to be statistically invalid. Hospitals within that payment division are placed
into the nearest valid payment division.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Diagnosis-related group (DRG)--The taxonomy of diagnoses
as defined in the Medicare DRG system or as otherwise specified by the department
or its designee.
(2)
Case mix index--The hospital-specific average relative
weight.
(3)
Relative weight--The arithmetic mean of the dollars for
a specific DRG divided by the arithmetic mean of the dollars for all cases.
(4)
Standard dollar amount--The weighted mean base year payment
for all hospitals in a payment division after adjusting each hospital's base
year payment per case by a case mix index, a cost-of-living index, and a budgetary
reduction factor of 10%. The budgetary reduction factor for admissions occurring
in state fiscal year 1990 (September 1, 1989, through August 31, 1990) is
7.0% and the budgetary reduction factor for admissions occurring in state
fiscal year 1991 (September 1, 1990, through August 31, 1991) is 5.5%. For
admissions occurring in state fiscal year 1992 (September 1, 1991, through
August 31, 1992) and subsequent state fiscal years, a budgetary reduction
factor is not applied. The department or its designee establishes a minimum
standard dollar amount of $1,600 and applies it to those hospitals whose standard
dollar amount is less than the minimum. The department or its designee applies
cost-of-living indexes to the standard dollar amounts established for the
base year to calculate standard dollar amounts for prospective years. A cost-of-living
index is not applied to the minimum standard dollar amount.
(5)
Base year--A 12-consecutive-month period of claims data
selected by the department or its designee as the basis for establishing the
payment divisions, standard dollar amounts, and relative weights. The department
or its designee selects a new base year at least every three years.
(6)
Base year payment per case--The payment that would have
been made to a hospital if the department or its designee reimbursed the hospital
under similar methods and procedures used in Title XVIII of the Social Security
Act, as amended, effective October 1, 1982, by Public Law 97-248. In calculating
the base year payment per case, the department or its designee uses the interim
rate established at tentative or final settlement, if applicable, of the most
recent cost reporting period up to and including the cost reporting period
associated with the base year.
(7)
Interim rate--Total reimbursable Title XIX inpatient costs,
as specified in paragraph (6) of this subsection, divided by total covered
Title XIX inpatient charges per tentative or final cost reporting period.
Beginning with 1985 hospital fiscal year cost reporting periods, the interim
rate established at tentative settlement includes incentive/penalty payments
to the extent that they continue to be permitted by federal law and regulation
and continue to be included on Title XVIII cost reports.
(8)
New hospital--A facility that has been in operation under
present and previous ownership for less than three years and that initially
enrolls as a Title XIX provider after the current base year. A new hospital
must have been substantially constructed within the five previous years from
the effective date of the prospective rate period.
(9)
Children's hospital--A hospital within Texas that is recognized
by Medicare as a children's hospital and is exempted by Medicare from the
Medicare prospective payment system.
(10)
Out-of-state children's hospital--A hospital outside of
Texas that is recognized by Medicare as a children's hospital and is exempted
by Medicare from the Medicare prospective payment system.
(c)
Calculating relative weights and standard dollar amounts.
The department or its designee uses recent Texas claims data to calculate
both the relative weights and standard dollar amounts. A relative weight is
calculated for each DRG and applied to all payment divisions. A separate standard
dollar amount is calculated for each payment division. Except for border hospitals
with a Texas Medicaid provider number beginning with an H and out-of-state
children's hospitals, the department or its designee uses the overall arithmetic
mean base year payment per case, including the cost of living update as specified
in subsection (n) of this section, as the standard dollar amount to reimburse
out-of-state hospitals. The overall arithmetic mean base year payment per
case, including the cost of living update as specified in subsection (n) of
this section, is also used as the standard dollar amount to reimburse military
hospitals providing inpatient emergency services for admissions on or after
October 1, 1993. The calculation of the standard dollar amount for out-of-state
children's hospitals is described in subsection (r) of this section. Except
for new hospitals, the overall arithmetic mean base year payment per case,
including the cost of living update as specified in subsection (n) of this
section, is also used as the standard dollar amount to reimburse hospitals
that initially enroll as a Title XIX provider after the current base year.
The standard dollar amount for new hospitals is the lesser of the overall
arithmetic mean base year payment per case plus three percentile points, including
the cost of living update as specified in subsection (n) of this section,
or the hospital's average Medicaid cost per Medicaid discharge based on the
tentative or final settlement, if applicable, of the hospital's first 12-month
cost reporting period occurring after the hospital's enrollment as a Title
XIX provider. In the event that the new hospital is a replacement facility
for a hospital that is currently enrolled as a Title XIX provider, the hospital
is reimbursed by using either the standard dollar amount of the existing provider
or the standard dollar amount for new hospitals, whichever is greater. The
use of the hospital's average Medicaid cost per Medicaid discharge, after
adjusting for case-mix intensity, as its standard dollar amount is applied
prospectively to the beginning of the next prospective year and is applicable
only if the tentative or final settlement is completed and available at least
60 days before the beginning of the prospective year. The hospital's Medicaid
costs are determined using similar methods and procedures used in Title XVIII
of the Social Security Act, as amended, effective October 1, 1982, by Public
Law 97-248. When two or more Title XIX participating providers merge, the
department or its designee combines the Medicaid inpatient costs, as described
in this subsection, of each of the individual providers to calculate a standard
dollar amount, effective at the start of the next prospective period, to be
used to reimburse the merged entity. Acquisitions and buyouts do not result
in a recalculation of the standard dollar amount of the acquired provider
unless acquisitions or buyouts result in the purchased or acquired hospital
becoming part of another Medicaid participating provider. When the department
or its designee determines that the department or its designee has made an
error that, if corrected, would result in the standard dollar amount of the
provider for which the error was made changing to a new payment division,
either higher or lower, the department or its designee moves the provider
into the correct payment division, and the department or its designee reprocesses
claims paid using the initial, incorrect standard dollar amount that was in
effect for the current state fiscal year by using the existing standard dollar
amount of the payment division in which the provider was moved. In the determination
of the corrected payment division, the department or its designee uses the
relative weights that are currently in effect for the state fiscal year. The
correction of this error condition only applies to the current state fiscal
year payments. No corrections are made to payment rates for services provided
in previous state fiscal years. If a specific DRG has less than ten observations
for Medicaid data, the department or its designee uses the corresponding Medicare
relative weight, except for DRGs relating to organ transplants. Relative weights
for organ transplant DRGs with less than ten observations may be developed
using Medicaid-specific data. The relative weights include organ procurement
costs for both solid and nonsolid organs. The department or its designee makes
no distinction between urban and rural hospitals and there is no federal/national
portion within the payment.
(d)
Add-on payments. There are no separate add-on payments.
The department or its designee:
(1)
includes capital costs in the standard dollar amount for
each payment division;
(2)
includes the cost of indirect medical education in the
standard dollar amount for each payment division;
(3)
includes the cost of malpractice insurance in the standard
dollar amount for each payment division; and
(4)
includes return on equity in the standard dollar amount
for each payment division.
(e)
Calculating the payment amount. The department or its designee
reimburses each hospital for covered inpatient hospital services by multiplying
the standard dollar amount established for the hospital's payment division
by the appropriate relative weight. The patient's DRG classification is primarily
based on the patient's principal diagnosis. The resulting amount is the payment
amount to the hospital.
(f)
Patient transfers. If a patient is transferred, the department
or its designee establishes payment amounts as specified in paragraphs (1)
- (4) of this subsection. If appropriate, the department or its designee manually
reviews transfers for medical necessity and appropriate payment.
(1)
If the patient is transferred to a skilled nursing facility
or intermediate care facility, the department or its designee pays the transferring
hospital the total payment amount of the patient's DRG.
(2)
If the patient is transferred to another hospital, the
department or its designee pays the receiving hospital the total payment amount
of the patient's DRG. The department or its designee pays the transferring
hospital a DRG per diem. The DRG per diem is based on the following formula:
(DRG relative weight x standard dollar amount)/DRG mean length of stay (LOS)
x LOS. The LOS is the lesser of the DRG mean LOS, the claim LOS, or 30 days.
The 30-day factor is not used in establishing a DRG per diem amount for a
medically necessary stay of a recipient less than age one in a Title XIX participating
hospital or a recipient less than age six in a disproportionate share hospital
as defined by the department.
(3)
If the department or its designee determines that the transferring
hospital provided a greater amount of care than the receiving hospital, the
department or its designee reverses the payment amounts. The transferring
hospital is paid the total payment amount of the patient's DRG and the receiving
hospital is paid the DRG per diem.
(4)
The department or its designee makes multiple transfer
payments by applying the per diem formula to the transferring hospitals and
the total DRG payment amount to the discharging hospital.
(g)
Split billing. The department or its designee does not
allow interim billings by providers. The hospital may bill the department
or its designee when the patient exceeds his 30-day inpatient hospital limit
or is discharged. The department or its designee bases payment on the diagnosis
codes known at billing. The payment is final.
(h)
Rebasing the standard dollar amounts. The HHSC or its designee
rebases the standard dollar amount for each payment division at least every
three years. HHSC will not rebase or recalculate the standard dollar amounts
for each payment division for admissions during the period September 1, 2003
through August 31, 2005. The relative weights are recalibrated whenever the
standard dollar amounts are recalculated. The standard dollar amounts are
not rebased on an interim basis unless the HHSC or its designee determines
that special circumstances warrant rebasing.
(i)
Recalibrating the relative weights. The department or its
designee recalibrates the relative weights whenever the standard dollar amounts
are rebased.
(j)
Revising the diagnosis related groups. The department or
its designee parallels the taxonomy of diagnoses as defined in the Medicare
DRG prospective payment system unless a revision is required based on Texas
claims data or other factors as determined by the department or its designee.
(k)
Appeals.
(1)
A hospital may appeal individual claims as specified in
other department rules. As specified in subparagraphs (A) - (C) of this paragraph,
a hospital may also appeal mechanical, mathematical, and data entry errors
in base year claims data and incorrectly computed subsequent adjustments to
the hospital's base year claims data because of the base year's tentative
or final settlement.
(A)
If a hospital believes that the department or its designee
made a mechanical, mathematical, or data entry error in computing the hospital's
base year claims data, the hospital may request a review of the disputed calculation
by the department or, at the department's direction, its designee. A hospital
may not request a review if the disputed calculation is the result of the
hospital's submittal of incorrect data or the result of the department's or
its designee's application of an interim rate to the base year claims data
derived from a cost reporting period occurring before the base year. Upon
the provider hospital's request, the department or its designee provides the
applicable available data used in calculating the hospital's base year claims
data to the provider hospital. The hospital must submit a specific written
request for review and appropriate specific documentation supporting its contention
that there has been a mechanical, mathematical, or data entry error to the
department or its designee. Except as specified in subparagraph (C) of this
paragraph, the request must be submitted within 60 days after the hospital
receives initial notification of its payment division and standard dollar
amount. The department or its designee conducts the review as quickly as possible
and notifies the hospital of the results. If the hospital is dissatisfied
with the results of the review, the hospital may request a formal hearing
under the procedures, including the expedited processing provisions, contained
in Chapter 1 of this title (relating to the Texas Board of Health), except
that, in the event of any conflict, the procedures contained in this section
apply. Except as specified in subparagraph (C) of this paragraph, if the review
or appeal is completed at least 60 days before the beginning of the next prospective
year, any adjustment required after the completion of the review or appeal
is applied to that next prospective year. If the review or appeal is not completed
at least 60 days before the beginning of the next prospective year, any adjustment
required after the completion of the review or appeal is applied only to the
subsequent prospective year. The base year claims data used by the department
or its designee pending the review or appeal is the base year claims data
established by the department or its designee.
(B)
If a hospital believes that the department or its designee
incorrectly computed subsequent adjustments to the hospital's base year claims
data because of the base year's tentative or final settlement, the hospital
may request a review of the disputed calculation related to the tentative
or final settlement by the department or, at the department's direction, its
designee. The hospital's request may also include a request to review the
tentative or final settlement. The hospital must submit a specific written
request for review and appropriate specific documentation supporting its contention
that the tentative or final settlement is incorrect to the department or its
designee. Except as specified in subparagraph (C) of this paragraph, the request
must be submitted within 60 days after the hospital receives notification
of a tentative or final settlement of the base year data. The department or
its designee conducts the review as quickly as possible and notifies the hospital
of the results. If the hospital is dissatisfied with the results of the review,
the hospital may request a formal hearing under the procedures, including
the expedited processing provisions, contained in Chapter 1 of this title
(relating to the Texas Board of Health), except that, in the event of any
conflict, the procedures contained in this section apply. Except as specified
in subparagraph (C) of this paragraph, if the review or appeal is completed
at least 60 days before the beginning of the next prospective year, any adjustment
required after the completion of the review or appeal is applied to that next
prospective year. If the review or appeal is not completed at least 60 days
before the beginning of the next prospective year, any adjustment required
after the completion of the review or appeal is applied only to the subsequent
prospective year. The interim rate applied to the base year claims data pending
the review or appeal is the interim rate established by the department or
its designee.
(C)
If a hospital believes that the department or its designee
incorrectly computed the hospital's 1985 base year claims data as specified
in subparagraph (A) of this paragraph, the hospital may submit a specific
written request for review and appropriate specific documentation supporting
its contention within 60 days after the effective date of this section. If
a hospital believes that the department or its designee incorrectly computed
the tentative or final settlement of the cost reporting period associated
with the 1985 base year as specified in subparagraph (B) of this paragraph,
the hospital may submit a specific written request for review and appropriate
specific documentation supporting its contention within 60 days after the
effective date of this section. The hospital must follow the process described
in subparagraph (A) or (B) of this paragraph, as appropriate. If the review
or appeal is completed by December 31, 1987, any adjustment required after
the completion of the review or appeal is applied to the March 1, 1988, adjustment
described in subsection (n) of this section. If the review or appeal is not
completed by December 31, 1987, any adjustment required after the completion
of the review or appeal is applied to the next prospective year.
(2)
A hospital may not appeal the prospective payment methodology
used by the department or its designee, including:
(A)
the payment division methodologies;
(B)
the DRGs established;
(C)
the methodology for classifying hospital discharges within
the DRGs;
(D)
the relative weights assigned to the DRGs; and
(E)
the amount of payment as being inadequate to cover costs.
(l)
Cost reports. Each hospital must submit a cost report at
periodic intervals as prescribed by Medicare or as otherwise prescribed by
the department or its designee. The department or its designee uses data from
these reports in rebasing years, in making adjustments as described in subsections
(n) and (q) of this section, and in completing cost settlements for children's
hospitals.
(m)
Cost settlements. If a hospital has already begun its fiscal
year on September 1, 1986, cost settlement for that portion of the hospital's
fiscal year which occurs before September 1, 1986, is based on reimbursement
for covered inpatient hospital services under similar methods and procedures
used in the Social Security Act, Title XVIII, as amended, effective October
1, 1982, by Public Law 97-248. Except as otherwise specified in subsection
(q) of this section, there are no cost settlements for services provided to
recipients admitted as inpatients to hospitals reimbursed under the prospective
payment system on or after the implementation date of the prospective payment
system.
(n)
Adjustments to base year claims data.
(1)
Beginning with 1985 hospital fiscal year cost reporting
periods, the department or its designee adjusts each hospital's base year
claims data and resulting payment division and standard dollar amount to reflect
the interim rate established at tentative and final settlement, if applicable,
of the cost reporting period associated with the base year. The adjustments
are applied only to claims data for months within the base year that coincide
with months within the hospital's cost reporting period. The claims data for
months within the base year that do not coincide with months within the hospital's
cost reporting period remain unchanged until the tentative or final settlement
of the cost reporting period containing those months has been completed. The
adjustments are applied to the next prospective year beginning September 1,
1988, except as specified in subparagraphs (A), (B), and (C) of this paragraph.
(A)
If the tentative or final settlement is not completed and
available at least 60 days before the beginning of the next prospective year,
any adjustment required because of the settlement is applied to the subsequent
prospective year.
(B)
If a review or appeal of a tentative or final settlement
is not completed at least 60 days before the beginning of the next prospective
year, the interim rate applied to the claims data on which the hospital's
payment division and standard dollar amount are established is the interim
rate established at tentative or final settlement by the department or its
designee. Any adjustment required after the completion of the review or appeal
is applied only to the subsequent prospective year.
(C)
The department or its designee makes a March 1, 1988, adjustment
to each hospital's 1985 base year claims data and resulting payment division
and standard dollar amount to reflect the interim rate established at tentative
and final settlement, if applicable, of the cost reporting period associated
with the 1985 base year. Any additional adjustments required as a result of
reviews and appeals described in subsection (k) of this section and completed
by December 31, 1987, are also reflected in the March 1, 1988, adjustment.
Future adjustments as described in this subsection and subsection (k) of this
section are made at the beginning of each prospective year.
(2)
The HHSC or its designee updates the standard dollar amount
each year for each payment division by applying a cost-of-living index to
the standard dollar amount established for the base year. The cost-of-living
index for state fiscal years 2003, 2004, and 2005 will not be applied to the
standard dollar amount for admissions during the period September 1, 2003
through August 31, 2005. The index used to update the standard dollar amounts
is the greater of:
(A)
the Health Care Financing Administration's (HCFA) Market
Basket Forecast (PPS Hospital Input Price Index) based on the report issued
for the federal fiscal year quarter ending in March of each year, adjusted
for the state fiscal year by summing one-third of the annual forecasted rate
of the index for the current calendar year and two-thirds of the annual forecasted
rate of the index for the next calendar year; or
(B)
an amount determined by selecting the lesser of the following
two measures:
(i)
the change in total charges per case for the latest year
available compared to total charges per case for the previous year; or
(ii)
the change in the Texas medical consumer price index-urban
(that is, the arithmetic mean of the Houston and Dallas/Fort Worth medical
consumer price indices for urban consumers) for the latest year available
compared to the Texas medical consumer price index-urban for the previous
year.
(o)
Reimbursement to in-state children's hospitals. The HHSC
or its designee reimburses in-state children's hospitals under similar methods
and procedures used in the Social Security Act, Title XVIII, as amended, effective
October 1, 1982, by Public Law 97-248, Tax Equity and Fiscal Responsibility
Act (TEFRA) except for the cost of direct graduate medical education (DGME).
For cost reporting periods beginning on or after September 1, 2003, children's
hospitals with allowable DGME costs as determined under TEFRA principles will
receive a pro rata share of their annual TEFRA DGME cost based on appropriations
or allocations from appropriations made specifically for this purpose. The
amount and frequency of interim payments will also be subject to the availability
of appropriations made specifically for this purpose. Interim payments are
subject to settlement at both tentative and final audit of a hospital's cost
report. The HHSC or its designee establishes target rates and stipulates payments
per discharge, incentives, and percentage of payments. The department or its
designee uses each hospital's 1987 final audited cost reporting period (fiscal
year ending during calendar year 1987) as its target base period. The target
base period for hospitals recognized by Medicare as children's hospitals after
the implementation of this subsection is the hospital's first full 12-month
cost reporting period occurring after its recognition by Medicare. The HHSC
or its designee annually increases each hospital's target amount for the target
base period by the cost-of-living index described in subsection (n) of this
section. The HHSC or its designee selects a new target base period at least
every three years. The HHSC or its designee bases interim payments to each
hospital upon the interim rate derived from the hospital's most recent tentative
or final Medicaid cost report settlement. If a Title XIX participating hospital
is subsequently recognized by Medicare as a children's hospital after the
implementation of this subsection, the hospital must submit written notification
to the HHSC or its designee and include adequate documentation and claims
data. Upon receipt of the written notification from the hospital, the HHSC
or its designee reserves the right to take 90 days to convert the hospital's
reimbursement to the reimbursement methodology described in this subsection.
(p)
Day and cost outliers. Effective for inpatient hospital
services provided on or after July 1, 1991, the HHSC or its designee pays
day or cost outliers for medically necessary inpatient services provided to
clients less than age one in all Title XIX participating hospitals and clients
less than age six in disproportionate share hospitals, as defined by the HHSC,
that are reimbursed under the prospective payment system. For purposes of
outlier payment adjustments, disproportionate share hospitals are defined
as those hospitals identified by the HHSC during the previous state fiscal
year as disproportionate share hospitals. If an admission qualifies for both
a day and a cost outlier, only the outlier resulting in the highest payment
to the hospital is paid. (Note: This subsection does not address reimbursement
for the provision of other necessary inpatient hospital services under the
Early and Periodic Screening, Diagnosis, and Treatment Program, as required
by the Omnibus Budget and Reconciliation Act of 1989.)
(1)
To establish day outliers, the HHSC or its designee first
removes from the current base year data those admissions whose actual lengths
of stay are greater than or equal to plus or minus three standard deviations
from the arithmetic mean length of stay for each DRG. The HHSC or its designee
then recomputes the arithmetic mean length of stay and the standard deviations
for each DRG. Inpatient days, which exceed two standard deviations beyond
the arithmetic mean length of stay for the DRG are eligible for a day outlier.
Payment is based on 70% of a per diem amount of a full DRG payment. The per
diem amount is established by dividing the full DRG payment amount by the
arithmetic mean length of stay for the DRG.
(2)
To establish cost outliers, the HHSC or its designee first
determines what the amount of reimbursement for the admission would have been
if the HHSC or its designee reimbursed the hospital under similar methods
and procedures used in the Social Security Act, Title XVIII, as amended, effective
October 1, 1982, by Public Law 97-248, Tax Equity and Fiscal Responsibility
Act (TEFRA). The HHSC or its designee then determines the outlier threshold
by using the greater of the full DRG payment amount multiplied by 1.5 or an
amount determined by selecting the lesser of the universe mean of the current
base year data multiplied by 11.14, or the hospital's standard dollar amount
multiplied by 11.14. The hospital's standard dollar amount is the amount that
the HHSC or its designee uses to reimburse the hospital under the prospective
payment system. The outlier threshold is subtracted from the amount of reimbursement
for the admission established under the TEFRA principles. The HHSC or its
designee multiplies any remainder by 70% to determine the actual amount of
the cost outlier payment.
(3)
If a recipient less than age one is admitted to and remains
in a hospital past his or her first birthday, medically necessary inpatient
days and hospital charges after the child reaches age one are included in
calculating the amount of any day or cost outlier payment.
(q)
Hospitals with 100 or fewer licensed beds and certain hospitals
with more than 100 licensed beds. The policies in this subsection apply only
to hospital fiscal years beginning on or after September 1, 1989 for hospitals
with 100 or fewer licensed beds at the beginning of the hospital's fiscal
year or hospital fiscal years beginning on or after September 1, 2003 for
hospitals with more than 100 licensed beds at the beginning of the hospital's
fiscal year, located in a county that is not in a metropolitan statistical
area (MSA) as defined by the U.S. Office of Management and Budget (OMB) and
designated by the Center for Medicare & Medicaid Services as a Sole Community
Provider (SCH) or Rural Referral Center RCC. At tentative cost settlement
of the hospital's fiscal year (with subsequent adjustment at final cost settlement,
if applicable), the HHSC or its designee determines what the amount of reimbursement
during the fiscal year would have been if the HHSC or its designee reimbursed
the hospital under similar methods and procedures used in Title XVIII of the
Social Security Act, as amended, effective October 1, 1982, by Public Law
97-248, Tax Equity and Fiscal Responsibility Act (TEFRA). This determination
is made without imposing a TEFRA cap. If the amount of reimbursement under
the TEFRA principles is greater than the amount of reimbursement received
by the hospital under the prospective payment system, the HHSC or its designee
reimburses the difference to the hospital.
(r)
Reimbursement to out-of-state children's hospitals. For
admissions on or after September 1, 1991, the standard dollar amount for out-of-state
children's hospitals is calculated as specified in this subsection. The department
or its designee calculates the overall average cost per discharge for in-state
children's hospitals based on tentative or final settlement of cost reporting
periods ending in calendar year 1990. The overall average cost per discharge
is adjusted for intensity of service by dividing it by the average relative
weight for all admissions from in-state children's hospitals during state
fiscal year 1990 (September 1, 1989 through August 31, 1990). The adjusted
cost per discharge is updated each year by applying the cost-of-living index
described in subsection (n) of this section. The resulting product is the
standard dollar amount to be used for payment of claims as described in subsection
(e) of this section. The department or its designee selects a new cost reporting
period and admissions period from the in-state children's hospitals at least
every three years for the purpose of calculating the standard dollar amount
for out-of-state children's hospitals.
(s)
Reimbursement of inpatient direct graduate medical education
(GME) costs. The Medicaid allowable inpatient direct graduate medical education
cost, as specified under similar methods and procedures used in the Social
Security Act, Title XVIII, as amended, effective October 1, 1982, by Public
Law 97-248, is calculated for each hospital having inpatient direct graduate
medical education costs on its tentative or final audited cost report. Those
inpatient direct medical education costs are removed from the calculation
of the interim rate described in subsection (b)(7) of this section and not
used in the calculation of the provider's standard dollar amount described
in subsection (c) of this section. Those allowable inpatient direct graduate
medical education costs for services delivered to Medicaid eligible patients
with inpatient admission dates on or after September 1, 1997, will be subject
to the cost determination and settlement provisions as described in this subsection.
No Medicaid inpatient direct graduate medical education cost settlement provisions
are applied to inpatient hospital admissions prior to September 1, 1997. For
cost reporting periods beginning on or after September 1, 2003, providers
with Medicaid allowable direct graduate medical education costs as described
in this subsection will receive a pro rata share of their annual GME cost
based on appropriations or allocations from appropriations made specifically
for this purpose. The amount and frequency of interim payments will also be
subject to the availability of appropriations made specifically for this purpose.
Interim payments are subject to settlement at both tentative and final audit
of a provider's cost report.
(t)
Non-State Owned Urban Hospital Supplemental Inpatient Payments.
Notwithstanding other provisions of this chapter, supplemental payments will
be made each state fiscal year in accordance with this subsection to eligible
hospitals that serve high volumes of Medicaid and uninsured patients.
(1)
Supplemental payments are available under this subsection
for inpatient hospital services provided by a publicly-owned hospital or hospital
affiliated with a hospital district in Bexar, Dallas, Ector, El Paso, Harris,
Lubbock, Nueces, Midland, Potter, Randall, Tarrant, and Travis. Supplemental
payments will be made for inpatient services on or after July 6, 2001 for
Bexar, Dallas, Ector, El Paso, Harris, Lubbock, Nueces, Tarrant, and Travis
counties. Supplemental payments will be made for inpatient services on or
after February 7, 2004 for Midland County. Supplemental payments will be made
for inpatient services on or after May 29, 2004 for Potter and Randall counties.
(2)
State funding for supplemental payments authorized under
this paragraph will be limited to and obtained through intergovernmental transfers
of local or hospital district funds. The supplemental payments described in
this paragraph will be made in accordance with the applicable regulations
regarding the Medicaid upper limit provisions codified at 42 C.F.R. §447.272.
(3)
In each county listed in paragraph (1) of this subsection,
the publicly-owned hospital or hospital affiliated with a hospital district
that incurs the greatest amount of cost for providing services to Medicaid
and uninsured patients, will be eligible to receive supplemental high volume
payments. The supplemental payments authorized under this paragraph are subject
to the following limits:
(A)
In each state fiscal year the amount of any inpatient supplemental
payments and outpatient supplemental payments may not exceed the hospital's
"hospital specific limit," as determined under §355.8065(f)(2)(E) of
this chapter (relating to Reimbursement to Disproportionate Share Hospitals
(DSH)); and
(B)
The amount of inpatient supplemental payments and fee-for-service
Medicaid inpatient payments the hospital receives in a state fiscal year may
not exceed Medicaid inpatient billed charges for inpatient services provided
by the hospital to fee-for-service Medicaid recipients in accordance with
42 CFR §447.271.
(4)
An eligible hospital will receive quarterly supplemental
payments. The quarterly payments will be limited to one-fourth of the lesser
of:
(A)
The difference between the hospital's Medicaid inpatient
billed charges and Medicaid payments the hospital receives for services provided
to fee-for-service Medicaid recipients. Medicaid billed charges and payments
will be based on a twelve consecutive-month period of fee-for-service claims
data selected by HHSC; or
(B)
The difference between the hospital's "hospital specific
limit," as determined under §355.8065(f)(2)(E) of this chapter and the
hospital's DSH payments as determined by the most recently finalized DSH reporting
period.
(5)
For purposes of calculating the "hospital specific limit"
in paragraph (4)(B) of this subsection, the "cost of services to uninsured
patients, " as defined by §355.8065(b)(5) of this chapter and "Medicaid
shortfall," as defined by §355.8065(b)(16) of this chapter, will be adjusted
as follows:
(A)
The amount of Medicaid payments (including inpatient and
outpatient supplemental payments) that exceed Medicaid cost will be subtracted
from the "Medicaid shortfall."
(B)
The amount of the "Medicaid shortfall," as adjusted in
accordance with subparagraph (A) of this paragraph, will be subtracted from
the "cost of services to uninsured patients" to ensure that, during any state
fiscal year, a hospital does not receive more in total Medicaid payments (inpatient
and outpatient rate payments, graduate medical education payments, supplemental
payments and disproportionate share hospital payments) than its cost of serving
Medicaid patients and patients with no health insurance.
(u)
In accordance with this subsection and subject to the availability
of funds, a high volume adjustment factor will be included in the calculation
of the state fiscal year 2003 (September 1, 2002 through August 31, 2003)
Standard Dollar Amount described in subsection (a)(4) of this section for
eligible hospitals. For purposes of this subsection, payments made in state
fiscal year 2004, prior to the effective date of this subsection, may be adjusted
in accordance with the methodology set out in this subsection. Notwithstanding
paragraphs (1) and (2) of this subsection, all non-state owned or operated,
non public, DRG reimbursed hospitals located in urban counties with a population
greater than 100,000, and Medicaid days in greater than 175% of the mean Medicaid
days in state fiscal year 2002 (September 1, 2001 through August 31, 2002)
will be eligible for a high volume adjustment to their state fiscal year 2004
SDA. Medicaid days will be based on hospital claims data selected by HHSC.
County population will be based on the 2000 United States census. Eligible
hospitals in counties with a population less than 1,000,000 will receive a
high volume adjustment factor of 3.25%; eligible hospitals in counties with
a population greater than 1,000,000 will receive a high volume adjustment
factor of 5.125%. Effective September 1, 2004, high-volume payments previously
made as an add-on percentage to standard dollar amount shall be made according
to paragraph (3) of this subsection.
(1)
Eligible Hospitals. All non-state owned or operated, non
public, DRG reimbursed hospitals located in urban counties with a population
greater than 100,000, and Medicaid days greater than 175% of the mean Medicaid
days in state fiscal year 2001 (September 1, 2000 through August 31, 2001)
will be eligible for a high volume adjustment to their SDA. Medicaid days
will be based on hospital claims data selected by HHSC. County population
will be based on the 2000 United States census.
(2)
All eligible hospitals in counties with a population less
than 1,000,000 will receive a high volume adjustment factor of 6.50%; eligible
hospitals in counties with a population greater than 1,000,000 will receive
a high volume adjustment factor of 10.25%. High-volume payments will be made
to eligible hospitals that serve as a safety net in providing emergency and
inpatient care.
(3)
High-volume payments recognize the higher medical assistance
costs and indigent care cost of hospitals that treat higher levels of low-income
and indigent patients. Eligible hospitals are defined as non-state owned or
operated, non-public, hospitals located in urban counties with Medicaid days
greater than 160% of the mean Medicaid days. High-volume payments totaling
$22,500,000 shall be allocated in proportion to uncompensated care loss for
eligible hospitals participating in the current year DSH program. High-volume
payments totaling $63,808,065 shall be made to eligible hospitals in proportion
to Medicaid inpatient days of service. Payments under this provision will
be made annually based on current year finalized Medicaid DSH claims data.
The state shall adjust the high volume payments in accordance with applicable
Medicaid charge upper limit regulations. Any adjustment shall be made on a
proportional basis in order to allow eligible hospitals to participate to
the fullest extent possible within the limits on disproportionate share hospital
payments. HHSC shall use current year DSH data to determine Medicaid days.
County population will be based on the 2000 United States census.
(v)
State Owned Hospital Supplemental Inpatient Payments. Notwithstanding
other provisions of this attachment, supplemental payments will be made each
state fiscal year in accordance with this subsection to state government-owned
or operated hospitals for inpatient services provided to Medicaid patients.
(1)
Supplemental payments are available under this subsection
for inpatient hospital services provided by state government-owned or operated
hospitals on or after December 13, 2003. To qualify for a supplemental payment,
the hospital must be owned or operated by the state of Texas.
(2)
The aggregate supplemental payment amount will be the annual
difference between the aggregate upper payment limit and the inpatient fee-for-service
Medicaid payments made to the state government-owned or operated hospitals
under this attachment. The aggregate upper payment limit will be calculated,
based on Medicare payment principles and in accordance with the federal upper
limit regulations at 42 CFR §447.272, using the most recent cost report
data available.
(3)
The amount of the supplemental payment made to each state
government-owned or operated hospital will be determined by:
(A)
dividing each hospital's fee-for-service Medicaid payments
by the sum of the Medicaid fee-for-service payments of all state government-owned
of operated hospitals;
(B)
multiplying the percentage calculated in subparagraph (A)
of this paragraph by the aggregate supplemental payment calculated in paragraph
(2) of this subsection.
(4)
Supplemental payments determined under this subsection
will be calculated annually and paid quarterly.
(5)
Supplemental payments made under this subsection when combined
with other inpatient payments made under this section shall not exceed the
maximum amounts allowable under applicable federal regulations at 42 CFR §447.271.
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 February 3, 2005.
TRD-200500502
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: February 23, 2005
Proposal publication date: October 22, 2004
For further information, please call: (512) 424-6900
The Texas Health and Human Services Commission (HHSC or Commission)
adopts new Chapter 373, Medicaid Estate Recovery Program, Subchapter A, General, §§373.101,
373.103, 373.105; Subchapter B, Recovery Claims, §§373.201, 373.203,
373.205, 373.207, 373.209, 373.211, 373.213, 373.215, 373.217, 373.219; and
Subchapter C, Notice, §§373.301, 373.303, 373.305, 373.307.
HHSC adopts §§373.101, 373.105, 373.205, 373.207, 373.217, 373.301,
373.303, and 373.305, without changes to the proposed text as published in
the December 3, 2004, issue of the
Texas Register
(29 TexReg 11229) and will not be republished.
HHSC adopts §§373.103, 373.201, 373.203, 373.209, 373.211, 373.213,
373.215, 373.219, and 373.307 with changes to the proposed as text published
in the December 3, 2004, issue of the
Texas Register
(29 TexReg 11229). The text of the rules will be republished. Changes
in the adopted rules respond to public comments on the proposed rules or reflect
a non-substantive variation from the proposed rules.
New Chapter 373, Medicaid Estate Recovery Program, sets forth the provisions
for the implementation of a Medicaid Estate Recovery Program that were developed
with input from the public. Subchapter A addresses the purpose and applicability
of the Medicaid Estate Recovery Program and defines the terms used in the
chapter. Subchapter B concerns the basis of Medicaid Estate Recovery Program
claims and the program's claim procedures. Subchapter C concerns the notice
provisions to be provided by the program.
Section 531.077, Government Code (as added by Acts 2003, 78th Leg., ch
198, §2.17), requires HHSC to establish a Medicaid Estate Recovery Program
(MERP) in order to comply with the provisions of the applicable federal law
found at 42 U.S.C. §1396p(b)(1). HHSC, which is the State Medicaid Agency,
and the Department of Aging and Disability Services (DADS), will operate a
Medicaid Estate Recovery Program that will seek recovery of the costs of Medicaid
long-term care benefits received by certain Medicaid recipients.
Section 531.077, Government Code, requires that any funds recovered by
the Medicaid Estate Recovery Program be deposited in the Medicaid account
in the State's general revenue fund. Under the statute, money in the account
may be appropriated only to fund long-term care, including both community-based
and facility-based care.
HHSC received comments from the Texas Chapter of the National Academy of
Elder Law Attorneys (NAELA); The Center for Public Policy Priorities (CPPP);
Texas Rural Legal Aid, Inc. (TRLA); Texas Senior Advocacy Coalition (TSAC);
and the public. The comments received and HHSC's responses follow.
Comments on Chapter 373
General comment. The Texas Senior Advocacy Coalition (TSAC) commented in
favor of the implementation of a Medicaid estate recovery program. Five members
of the public commented in favor of the implementation of a Medicaid estate
recovery program. Five members of the public commented against the implementation
of a Medicaid estate recovery program.
Comments on §373.103
Comment. The Center for Public Policy Priorities (CPPP) commented in favor
of proposed rule §373.103(a)(2), Applicability, in that the proposed
rules exempted individuals from estate recovery who had applied for services
before the effective date of the program, but sought the inclusion of the
term "initially" for clarification purposes.
Response. The Commission agrees with the comment and has inserted the word
"initially" in the beginning of the first sentence of subsection (a)(2) of §373.103.
Comment on §373.105(14)
Comment. The Texas Chapter of the National Academy of Elder Law Attorneys
(NAELA), commented in favor of proposed rule §373.105(14), Definitions,
Value of Real Property, but sought a modification of the language in the proposed
rule to add language concerning mortgage liens, outstanding taxes or other
exemptions because this modification would eliminate the punitive effect to
persons who have borrowed funds against the equity of their homes to pay for
the costs of their care.
Response. The Commission disagrees with the comment, as no punitive effect
on persons will exist, as MERP claims will not be made until after the death
of a Medicaid recipient for the costs of care paid by Medicaid.
Comments on §373.201
Comment. Texas Chapter of the National Academy of Elder Law Attorneys (NAELA),
commented in favor of proposed rule §373.201, Basis for Claims, but sought
the exclusion of language allowing MERP claims to be filed or presented to
guardians under §805(4) of the Texas Probate Code as this would cause
confusion, complications, and possible adverse effects if a claim were allowed
under this provision as well as under §322 of the Texas Probate Code.
Response. The Commission agrees with the comment and has modified the language
in §373.203 to clarify that that a MERP claim will be made only under
the procedures outlined in §322 of the Texas Probate Code, and will not
be presented or filed with a guardian under §805(4) of the Texas Probate
Code.
Comments on §373.203
Comment. The Texas Chapter of the National Academy of Elder Law Attorneys
(NAELA) commented in favor of proposed rule §373.203, Claims Procedures,
but sought the exclusion of language related to §805(4) of the Texas
Probate Code.
Response. The Commission agrees with the comment and has modified language
in §373.203 to clarify that a MERP claim will be made only under the
procedures outlined in §322 of the Texas Probate Code, and will not be
presented or filed with a guardian under §805(4) of the Texas Probate
Code.
Comments on §373.207
Comment. The Texas chapter of the National Academy of Elder Law Attorneys
(NAELA), and The Center for Public Policy Priorities (CPPP) commented for
proposed rule §373.207, Exemptions from Claims, and requested the addition
of language under the provisions of 42 U.S.C. §1396(c)(2)(A)(iv) to exempt
from transfer of assets penalties a home that is transferred to an individual's
son/daughter who has lived in the home for at least two years prior to nursing
home entry and who provided care that delayed nursing home entry of a Medicaid
recipient.
Response. The Commission disagrees as HHSC, the State Medicaid Agency,
was legislatively mandated to establish a Medicaid Estate Recovery Program
(MERP) in order to comply with the provisions of the applicable federal law
found at 42 U.S.C. §1396p(b)(1), and not at 42 U.S.C. §1396(c)(2)(A)(iv),
to seek the recovery of the costs of Medicaid long-term care benefits received
by certain Medicaid recipients.
Comments on §373.209
Comment. The Center for Public Policy Priorities (CPPP) commented in favor
of proposed rule §373.209, Undue Hardship Waivers, but sought an increase
in the time allowed to request undue hardship waivers from the Medicaid Estate
Recovery Program from 40 days to 60 days in §373.209(a).
Response. The Commission agrees that it would benefit interested parties
if more time were allowed to request undue hardship waivers and, in the second
sentence of subsection (a), has changed the time to request an undue hardship
waiver from 40 days to 60 days.
Comment. The Texas Chapter of the National Academy of Elder Law Attorneys
(NAELA) commented in favor of §373.209, Undue Hardship Waivers, but suggested
that the word "illegal" be inserted in subsection (b)(2) to clarify that legal
estate planning methods were allowed.
Response. The Commission agrees with the comment that a revision of the
language will assist in the clarification of this subsection and will insert
the phrase "contrary to the requirements of Medicaid law" after the word "divested,"
and the revised subsection (b)(2) will read as follows: "The circumstances
giving rise to the hardship were created by, or are the result of, estate
planning methods under which assets were sheltered or divested contrary to
the requirements of Medicaid law in order to avoid estate recovery."
Comment. The Texas Chapter of the National Academy of Elder Law Attorneys
(NAELA), commented against proposed rule §373.209(c)(3), Undue Hardship
Waivers, requiring that farms or ranches must produce 50% of the heirs' and
legatees' livelihoods, as essentially negating the hardship waiver and requests
that the language be revised to delete the 50% requirement and require only
that the heir or legatee participate in the working farm or ranch activities.
Response. The Commission disagrees with this comment. The Centers for Medicare
and Medicaid Services (CMS) commented that §373.209(c)(3), Undue Hardship
Waivers, must treat exemptions for family-owned businesses and family ranches
and farms equally with no disparate treatment and that the language must include
criteria that reflect that the business, ranch or farm is the primary source
of family income.
Comment. The Texas Chapter of the National Academy of Elder Law Attorneys
(NAELA), commented against proposed rule §373.209(d), Undue Hardship
Waivers Applicable to Homesteads, and sought to delete all of the requirements
in the proposed rules requiring the homestead waiver to be linked to an individual's
income.
Response. The Commission disagrees with this comment. The Commission received
many public comments requesting that HHSC exempt a statewide homestead value
amount such as $50,000 or $100,000 rather than a percentage of a homestead's
value due to the wide disparity among counties in the value of homesteads.
The Centers for Medicare and Medicaid Services (CMS) approved a provision
allowing the Commission a $100,000 homestead undue hardship exemption for
heirs whose income is below 300 percent of the federal poverty level. CMS
will not allow any state to implement a statewide automatic and unconditional
exempted homestead amount, as this would, under Federal law, violate the purpose
of Medicaid estate recovery.
Comments on §373.211
Comment. The Center for Public Policy Priorities (CPPP) and the Texas Chapter
of the National Academy of Elder Law Attorneys (NAELA) commented for proposed
rule §373.211, Right to a Review of an Undue Hardship Waiver Denial,
but requested that the time allowed for requesting a hardship waiver denial
review be increased from 40 days to 60 days in §373.211(a).
Response. The Commission agrees this will benefit the public and will increase
the time period allowed to request a review of an undue hardship waiver denial
in §373.211(a) from 40 days from 60 days.
Comments on §373.213
Comment. The Center for Public Policy Priorities (CPPP) and the Texas Chapter
of the National Academy of Elder Law Attorneys (NAELA) commented for proposed
rule §373.213, Deduction Allowed For Home Maintenance and Costs of Care,
but requested that the time allowed in §373.213(c) for obtaining these
deductions be increased from 40 days to 60 days to enable families more time
to collect necessary supporting documents
Response. The Commission agrees and will increase the time period in §373.213(c)
from 40 to 60 days, as this will allow families more time to collect information.
Comments on §373.215
Comment. The National Academy of Elder Law Attorneys (NAELA) commented
in favor of §373.215, Recovery Not Cost Effective, but sought inclusion
of the term "recoverable" and the revision of §373.215(1) for clarification
purposes.
Response. The Commission agrees with this comment and will insert the term
"recoverable" and revise §373.215(1) to read: "the recoverable value
of the estate is $10,000 or less."
Comments on §373.307
The Center for Public Policy Priorities (CPPP) commented for proposed rule §373.307,
Notice of Intent to File a Claim Upon the Death of a Medicaid Recipient, but
sought an increase to 60 days from 40 days in the time allowed to request
undue hardship waivers from Medicaid estate recovery in §373.307(c).
Response. The Commission agrees that it would benefit interested parties
if more time were allowed to request undue hardship waivers, and, in §373.307(c),
has changed the time to request the waiver from 40 days to 60 days.
Non-substantive grammar and style changes were made at the suggestion of
HHSC staff to improve the rules' readability, clarity, and consistency.
Subchapter A. GENERAL
1 TAC §§373.101, 373.103, 373.105
The new sections are adopted under §531.033, Government
Code, which provides the Commissioner of HHSC with broad rule making authority,
and §531.033, Government Code (as added by Acts 2003, 78th Leg., ch.
198, §2.17), under which HHSC, the State Medicaid Agency, is mandated
to establish a Medicaid Estate Recovery Program (MERP) in order to comply
with the provisions of the applicable federal law found at 42 U.S.C. §1396p(b)(1)
to seek the recovery of the costs of Medicaid long-term care benefits received
by certain Medicaid recipients.
§373.103.Applicability.
(a)
A Medicaid Estate Recovery claim may be filed against the
estate of a deceased Medicaid recipient for covered Medicaid services if the
recipient:
(1)
Was age 55 years or older at the time the services were
received; and
(2)
Initially applied for covered Medicaid long-term care services
on or after March 1, 2005, the effective date of these rules.
(b)
For purposes of this chapter, an individual will be considered
to be age 55 as of the first day of the month following the month in which
the recipient attains the age of 55.
(c)
Covered Medicaid long-term care services include the following
services provided to a recipient age 55 years or older under the State of
Texas Medicaid plan under Title XIX of the Social Security Act (SSA):
(1)
Nursing facility services;
(2)
Intermediate Care Facilities for the Mentally Retarded
(ICF-MR);
(3)
Home and Community-Based Services (§1915(c), SSA)
and Community Attendant Services (§1929(b), SSA); and
(4)
Related costs of hospital and prescription drug services.
(d)
For the purposes of this chapter, covered services do not
include services provided before the effective date of these rules.
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 February 7, 2005.
TRD-200500556
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: March 1, 2005
Proposal publication date: December 3, 2004
For further information, please call: (512) 424-6900
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Chapter 373.
MEDICAID ESTATE RECOVERY PROGRAM
Subchapter B. RECOVERY CLAIMS