1 TAC §352.10
The Health and Human Services Commission (HHSC) adopts new §352.10,
concerning a quality assurance fee for the Home and Community-Based Services
(HCS) and Community Living Assistance and Support Services (CLASS) programs,
in its Quality Assurance Fee chapter, with changes to the proposed text as
published in the August 19, 2005, issue of the
Texas
Register
(30 TexReg 4769). The text of the rule will be republished.
Concurrently with the proposal of §352.10, and in the August 19, 2005,
issue of the
Texas Register
, HHSC adopted
an identical rule on an emergency basis (30 TexReg 4767). The emergency rule
became effective on September 1, 2005, and will expire and be withdrawn on
February 27, 2006, the date on which this regularly adopted rule will become
effective. The terms of the rule, except for subsection (l), first as an emergency
rule and then as a regularly adopted rule, will have been in effect continuously
since September 1, 2005.
Section 352.10 implements the requirements of Senate Bill 1830 of the 79th
Legislature, Regular Session, 2005, that HHSC develop a quality assurance
fee (QAF) program that imposes a quality assurance fee for services under
a home and community-based services waiver or a community living assistance
and support services waiver. Senate Bill 1830 requires the Executive Commissioner
of HHSC to modify the QAF described under Subchapter H, Chapter 252 of the
Health and Safety Code in such a manner as to impose a QAF on persons providing
these services. The new rule describes the method of determining the fee amount
and explains the monthly reporting requirements for providers of these services,
the payment schedule of the fee amount, the audit of the monthly reports,
and penalties and vendor hold provisions for failure to submit monthly reports
or failure to pay the fee amounts by the specified deadlines.
Language has been added in new subsection §352.10(l) to clarify that
this rule will be implemented along with a rate change for the HCS and CLASS
programs. The Health and Human Services Commission will publish notice of
the proposed rate change and public hearing, as required by §355.105,
in the
Texas Register
, at least 30 days prior
to assessment and collection of the fee. In addition, contracted HCS and CLASS
providers will be notified by HHSC of its intent to implement the fee.
HHSC received comments regarding the proposed rule from the Texas Association
for Home Care (TAHC), the Private Providers Association of Texas (PPAT) and
a private provider of services during the comment period. A summary of the
comments and HHSC's responses follow.
Comment from private provider: Concerning the rule in general, these rules
are to be effective September 1, 2005, but there has been no notice of a rate
hearing to increase rates to these providers.
Response: Language has been added to a new §352.10(l) to clarify that
this rule will be implemented along with a rate change for the HCS and CLASS
programs. The Health and Human Services Commission will publish notice of
the proposed rate change and public hearing, as required by §355.105,
in the
Texas Register
, at least 30 days prior
to assessment and collection of the fee. In addition, contracted HCS and CLASS
providers will be notified by HHSC of its intent to implement the fee.
Comments from private provider and PPAT: Concerning §352.10(d), there
are currently no existing reports or screens in the Home and Community-Based
Services billing system to easily retrieve units of service billed in this
program, which must be used as a basis for the calculation of the QAF. Because
of this difficulty in documenting units of service it will be extremely difficult
to meet the 30-day reporting deadline. Providers will incur additional administrative
costs in complying with the proposed rule. Allowing a minimum of 60 days to
up to 95 days to complete the reporting would be optimum.
Response: The Texas Department of Aging and Disability Services (DADS)
will work to develop automated units of service reports to assist in streamlining
the monthly reporting. It is anticipated that the monthly reporting of Medicaid
units of service for calculation of the QAF will be part of the Medicaid billing
system. This will reduce the workload of the providers and will increase the
accountability of the calculation of the QAF, which is based on the Medicaid
units of service delivered. The remaining reporting will be that of private
revenue received by the provider, which is minimal. HHSC is adopting this
subsection without change.
Comment from private provider: Concerning §352.10(a)(2) - (4), clarification
is needed on what is considered gross receipts and how net operating revenues
are to be determined. For example, are client room and board revenues, billings
for adaptive aides and minor home modifications, and dental services to be
excluded from the calculation? "Gross receipts" implies a cash basis, yet
the rules require the units of service be calculated on an accrual basis.
How is the provider to report bad debts or units that will not be paid? Does
the QAF apply to the Texas Home Living waiver program?
Response: The legislation creating the QAF, S.B. 1830, 79th Legislature,
Regular Session, 2005, states that, "'gross receipts' means money received
as compensation for services under an intermediate care facilities waiver
program such as a home and community services waiver or a community living
assistance and support services waiver." Since room and board and dental services
are not waiver services in these programs, any revenue the provider receives
related to these are not included as gross receipts. Since adaptive aides
and minor home modifications are waiver services, the QAF will apply. Units
of service will be used as the basis of calculation of the Medicaid part of
the QAF fee. Since accrued Medicaid units of service are the units of service
that the provider bills DADS, it is appropriate to use billed units of service
as the basis of the QAF calculation. Bad debts or unpaid units of service
are adjustments that are made to the private revenue reporting for the QAF.
Monthly reporting guidelines and guidelines regarding the calculation of the
QAF fee will be sent to providers separate from this rule. The QAF does not
apply to the Texas Home Living waiver program. HHSC is adopting these paragraphs
without change.
Comment from PPAT: Concerning §352.10(a)(4) and (c), the QAF is best
calculated based on the net program revenues rather than on individual units
of service. Calculating the QAF on the basis of the number of units of service
delivered each month times the rate for each service will be an extremely
complex calculation prone to errors and reconciliation problems. This change
will make the calculation simpler for providers and easier for DADS to track
and audit.
Response: Medicaid revenue paid to providers in these waiver programs is
based on the units of service billed to the state and the corresponding rates
paid for the units of service billed. Therefore, since units of service are
the basis of the calculation of Medicaid revenue, it is also used as the basis
of the calculation of the QAF fee. Units of service are more easily audited
and verified through the automated billing process than a total revenue amount
and, therefore, are also more accountable. DADS will work to develop automated
units of service reports to assist in streamlining the monthly reporting and
QAF calculations. HHSC is adopting this paragraph and subsection without changes.
Comment from TAHC: Concerning §352.10(a)(1), no mention is made in
the rule for those clients who have chosen the Consumer Directed Services
(CDS) option. The client is the employer of record with the CDS Agency serving
only as the fiscal intermediary for the client. The CDS option providers must
be included in payment of the QAF fee.
Response: Since the waiver services under CDS are privately procured by
the client, delivered by individuals, and not delivered by a licensed agency
they are not subject to these rules. However, if in subsequent discussions
with CMS it is determined that federal law requires that the QAF apply to
the CDS option, these rules will be amended at that time. HHSC is adopting
this paragraph without changes.
The new rule is adopted under the Texas Government Code, §531.033,
which authorizes the executive commissioner of HHSC to adopt rules necessary
to carry out the commission's duties; Government Code §531.0055, which
authorizes the executive commissioner to adopt rules for the operation and
provision of health and human services by the health and human services agencies
and to adopt or approve rates of payment required by law to be adopted or
approved by a health and human services agency.
§352.10.Quality Assurance Fee for the Home and Community-based Services and Community Living Assistance and Support Services.
(a)
Definitions. The following definitions apply to this section.
(1)
Provider. A person or entity that contracts with the Department
of Aging and Disability Services (DADS) as a Home and Community-based Services
Program Provider, Community Living Assistance and Support Services-Direct
Services Agency Provider, or Community Living Assistance and Support Services-Case
Management Agency.
(2)
Gross receipts. Money received as compensation for services
under an intermediate care facilities for the mentally retarded waiver program
such as a home and community services waiver or a community living assistance
and support services waiver. The term does not include a charitable contribution,
revenues received for services or goods other than waivers, or any money received
from consumers or their families as reimbursement for services or goods not
normally covered by the waivers.
(3)
Net operating revenues. Gross receipts less any deducted
amounts for bad debts, charity care, and payer discounts.
(4)
Units of service. The units of service by rate type and
by level of need, where applicable, that were accrued for the reporting period.
Units of service that were delivered and not yet billed or paid to the provider
are to be included as units of service.
(b)
Determination of the fee. The Health and Human Services
Commission (HHSC) shall establish the quality assurance fee as a percentage
of net operating revenues such that the total of all fees collected does not
exceed six percent of the total annual net operating revenues received by
providers in the state under the programs identified in subsection (a)(1)
of this section. The quality assurance fee amount may be adjusted as necessary
for all providers to ensure that the fees collected do not exceed six percent
of the total annual net operating revenues received by providers in the state
under the programs identified in subsection (a)(1) of this section.
(c)
Total monthly fee amount. For each provider, the total
monthly fee amount is equal to the percentage determined in subsection (b)
of this section times the number of units of service delivered under the programs
identified in subsection (a)(1) of this section during the reporting period
times the payment rate in effect on the day the unit of service was delivered
plus the percentage determined in subsection (b) of this section times the
net operating revenues received for private clients during the reporting period.
(d)
Monthly reporting. All contracted providers must file a
report with DADS in a format prescribed by DADS and in accordance with instructions
provided by DADS that includes the accrued units of service delivered to clients
under the programs identified in subsection (a)(1) of this section for the
reporting period and the net operating revenues received for private clients
during the reporting period. A separate report must be completed for each
contract held by the provider. The report must be received by DADS no later
than 30 calendar days following the end of each month unless the 30th calendar
day is a weekend day, national holiday, or state holiday, then the first business
day following the 30th calendar day is the final day for the receipt of the
monthly report. Additional reports may be required as needed at the discretion
of HHSC.
(e)
Payment of the fee. The provider must include with the
monthly report submitted from subsection (d) of this section, payment of the
total fee amount calculated from the monthly report. The payment of the total
fee amount must be received by DADS no later than 30 calendar days following
the end of each month unless the 30th calendar day is a weekend day, national
holiday, or state holiday, then the first business day following the 30th
calendar day is the final day for the receipt of the monthly report. The quality
assurance fee must be paid by this deadline even if an appeal of the fee has
been filed with DADS, the provider's contract has terminated, or the contract
has been assigned. HHSC or DADS will not grant any exceptions from the payment
of the quality assurance fee, monthly reporting requirements related to the
fee, or the collection of other data necessary for the determination of the
fee amount to be paid.
(f)
Audit of monthly reports. HHSC conducts desk reviews and
field audits of monthly reports in order to ensure that all information reported
in the reports conforms to all applicable rules and instructions. HHSC may
require supporting documentation other than that contained in the monthly
report to substantiate reported information. The provider must allow access
to the records of provider or any parent company, affiliate, or related party
for the purposes of verifying the information contained in the monthly report.
For providers contracted with the State of Texas to provide Home and Community-based
Services or Community Living Assistance and Support Services, failure to submit
monthly reports by the due date, to allow auditors access to the records necessary
to verify the amounts reported on the monthly reports, or to complete the
monthly reports according to instructions and rules constitutes an administrative
contract violation. In the case of an administrative contract violation, procedural
guidelines and informal reconsideration and/or appeal processes are specified
in §355.111 of this title (relating to Administrative Contract Violations).
The provider will be notified of any revisions made to their monthly reports
and of any amounts owed or to be returned to the provider based on the revisions.
Amounts owed must be paid within 30 days of notification of the amount that
is owed.
(g)
Penalties. A penalty assessed under this subsection is
in an amount equal to one-half the amount of the estimated outstanding quality
assurance fee amount, not to exceed $20,000. DADS will assess a financial
penalty to be paid by the provider if any of the following occurs:
(1)
The provider fails to pay the total fee amount owed for
the month.
(2)
The provider files a false, erroneous or fraudulent monthly
report that either HHSC or DADS concludes resulted in the assessment of a
quality assurance fee that is less than the provider should have been assessed.
(3)
The provider fails to pay the amounts due from subsection
(f) of this section within 30 days of notification.
(4)
Penalties are in addition to owed quality assurance fees
and are non-refundable.
(h)
Continued responsibility. The assessment of a penalty under
this section does not relieve a provider from:
(1)
Providing services to clients in accordance with its obligations
under contract or the law;
(2)
Paying additional quality assurance fees that may be assessed
to the provider; or
(3)
Otherwise complying with licensure and certification requirements.
(i)
Vendor Hold. A provider that fails to pay the quality assurance
fee by the due date will be placed on vendor hold until all overdue fee amounts
are paid to DADS.
(j)
Informal review and formal appeal. A provider that disagrees
with an adjustment to their monthly report made in accordance with subsection
(f) of this section may request an informal review in accordance with §355.110(c)
of this title (relating to Informal Reviews and Formal Appeals) and an administrative
appeal in accordance with §355.110(d) and (e) of this title (relating
to Informal Reviews and Formal Appeals).
(k)
Sections §352.1 through §352.9 do not apply to
this section.
(l)
The Health and Human Services Commission (HHSC) will implement
the quality assurance fee described in this section along with a rate change
for the Home and Community-Based Services (HCS) and Community Living Assistance
and Support Services programs. HHSC will publish notice of the proposed rate
change and public hearing, as required by §355.105 of this title (relating
to general reporting and documentation requirements, methods, and procedures),
in the
Texas Register
, at least 30 days prior
to assessment and collection of the fee. In addition, contracted HCS and CLASS
providers will be notified by HHSC or its designee of the intent to implement
a fee.
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 6, 2006.
TRD-200600612
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: February 27, 2006
Proposal publication date: August 19, 2005
For further information, please call: (512) 424-6900