TITLE 1.ADMINISTRATION

Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 353. MEDICAID MANAGED CARE

Subchapter A. GENERAL PROVISIONS

1 TAC §353.5

The Texas Health and Human Services Commission (HHSC) proposes §353.5, concerning Internet Posting of Sanctions Imposed For Contractual Violations. The rule outlines the authority of HHSC to impose sanctions when it is determined that a Medicaid Managed Care Organization (MCO) has failed to comply with the terms of its contract with HHSC. The rule also explains when and how HHSC will post MCO sanction information on its Internet website.

Background and Justification

The proposed new rule is required by S.B. 1188, Section 6, 79th Legislature, Regular Session, 2005, Internet Posting of Sanctions Imposed for Contractual Violations. This rule requires that HHSC prepare and maintain a record of each enforcement action initiated by HHSC that results in a sanction, including a penalty, imposed against an MCO.

Section-by-Section Summary

Section 353.5 describes HHSC's authority to determine when an MCO has failed to comply with the terms of a contract to provide health care services to clients. The proposed new rule also states that HHSC will be responsible for identifying and investigating contract deficiencies and violations, and taking corrective action to remedy contract deficiencies and violations of an MCO. HHSC will give written notice to the MCO that describes the contract violation. In addition, MCO sanctions that are not under administrative appeal or judicial review will be posted to the HHSC website.

Fiscal Note

Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the rule is in effect there will be no fiscal impact to state government. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.

Small and Micro-business Impact Analysis

Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the rule as it will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment.

Public Benefit

Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed new rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit of enforcing the proposed rule will be improved access to and quality of health care services.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk 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 a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposed rule may be submitted to Gilbert Estrada, Policy Analyst in the Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, MC-H600; Austin, Texas 78708-5200; by fax to (512) 491-1953, or by e-mail to gilbert.estrada@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register .

Public Hearing

A public hearing is scheduled for January 24, 2007 from 1:30 p.m. to 2:30 p.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.

Statutory Authority

The new rule is proposed under the Texas Government Code, §531.033, which provides the Executive 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.

The proposed new rule affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§353.5.Internet Posting of Sanctions Imposed For Contractual Violations.

(a) This section pertains to a Managed Care Organization (MCO) which the Health and Human Services Commission (HHSC) determines has failed to comply with the terms of a contract to provide health care services to clients through a managed care plan issued by the MCO.

(b) HHSC is responsible for identifying and investigating contract deficiencies and violations, and taking corrective action to remedy contract deficiencies and violations of an MCO. Corrective actions may include assessment of liquidated damages, contract termination, and/or any other sanction or remedy available under the terms and conditions of the contract or state and federal law and regulations.

(c) If HHSC finds that performance issues, problems, or deficiencies exist with an MCO, as those issues pertain or relate to certain deliverable services, HHSC may investigate a claim of contract violation and determine whether a contract violation has occurred or currently exists.

(d) If HHSC determines that a contract violation has occurred or currently exists, HHSC will decide on the appropriate contract sanction or remedy to be imposed.

(e) If required by contract, HHSC will give written notice to the MCO, describing the contract violation, the contract sanction or remedy to be imposed, the method by which reimbursement (if applicable) to HHSC will be made, and the time frame for resolution of the issue.

(f) When a contract violation has been determined and a sanction imposed, HHSC will post the following information on HHSC's Internet website:

(1) The name and address of the MCO;

(2) A description of the contractual obligation the MCO failed to meet;

(3) The date of determination of noncompliance;

(4) The date the sanction was imposed;

(5) The maximum sanction that may be imposed under the contract for the violation; and

(6) The actual sanction imposed against the MCO.

(g) HHSC shall post and maintain the records required by this section on HHSC's Internet website in English and Spanish. HHSC shall update the list of records on the website at least quarterly.

(h) The information posted on the website will be displayed for twelve months (12) from the date of posting, or for twelve months after completion of the contract remedy, whichever is later.

(i) HHSC will not post information on HHSC's Internet website that relates to a sanction while the sanction is the subject of an administrative appeal or judicial review. Nothing in this subsection creates or enlarges a right to an administrative appeal or judicial review of a contract sanction or remedy.

(j) For purposes of this section, a sanction includes assessment or imposition of one or more of the following contract remedies:

(1) assessment of a penalty;

(2) assessment of liquidated damages;

(3) assessment of consequential damages;

(4) imposition of a corrective action plan;

(5) debarment;

(6) involuntary suspension of a contract or portion of a contract; and/or

(7) involuntary termination of a contract or portion of a contract.

(k) For purposes of this section, a sanction is not considered to include:

(1) a vendor hold or similar temporary delay in payment; or

(2) an agreed temporary remedial measure intended to facilitate contract compliance.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2006.

TRD-200606865

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: February 4, 2007

For further information, please call: (512) 424-6576


Chapter 354. MEDICAID HEALTH SERVICES

Subchapter A. PURCHASED HEALTH SERVICES

11. GENERAL ADMINISTRATION

1 TAC §354.1186

The Texas Health and Human Services Commission (HHSC) proposes new §354.1186, Requirements for the Health Passport. This rule defines the "Health Passport" and describes the minimum requirements of the health passport as required by Senate Bill (S.B.) 6, 79th Legislature, Regular Session, 2005, codified at §266.006, Family Code, relating to the health passport.

Background and Justification

S.B. 6 requires that HHSC, in coordination with the Department of Family & Protective Services (DFPS), develop a comprehensive healthcare services delivery model for Texas children in substitute (foster) care. The model will include a "Health Passport" for children in DFPS conservatorship. The Health Passport is an electronic medical record that will contain portions of the child's medical information and can be used to document medical services provided to the child. The Health Passport is intended to ensure continuity of healthcare for children in DFPS conservatorship. S.B. 6 requires that HHSC develop rules specifying the information to be included in the Health Passport.

Section-by-Section Summary

Section 354.1186, Requirements for the Health Passport, identifies information that must be included in the Health Passport, including identifying information on the child and the child's providers, identification of the child's known health problems, a record of provider visits and immunizations, and information on prescriptions. The proposed new rule requires that the Health Passport system must be secure and must comply with the security and privacy requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA). The proposed new rule also establishes to whom the information on the Health Passport will be available when the child is discharged from foster care.

Fiscal Note

Thomas M. Suehs, Deputy Commissioner for Financial Services, has determined that for the first five years the proposed new rule is in effect there will be a cost to the state. For state fiscal year 2007, the state will incur a cost of $500,000, a federal cost of $500,000 and total cost of $1,000,000. For fiscal years 2008 - 2011, the cost to maintain the Health Passport is estimated to be $250,000 state funds and $250,000 federal funds annually, for a total cost of $500,000 per year, or $3,000,000 total for the time period. Local governments will not incur additional costs. The proposed amendment will not have an affect on the local health and human service agencies.

Small and Micro-business Impact Analysis

Mr. Suehs has also determined that there will be no effect on small businesses or micro-businesses to comply with the new rule, as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on a local economy.

Public Benefit

Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for the period the proposed new rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit of enforcing the proposed new rule will be improved access to and quality of health care services for children in foster care.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk 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 a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposed amendment to the rule may be submitted to Deborah Norris, Policy Analyst in the Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, MC-H600; Austin, Texas 78708-5200; by fax to (512) 491-1953; or by e-mail to deborah.norris@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register .

Public Hearing

A public hearing is scheduled for January 24, 2007 from 9:30 a.m. to 10:30 a.m. in the HHSC Lone Star Conference Room at 11209 Metric Boulevard, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Meisha Spencer at (512) 491-1453.

Statutory Authority

The new rule is proposed under the Texas Government Code, §531.033, which provides the Executive 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 Family Code, §266.006, which requires the Executive Commissioner to adopt rules implementing the health passport program.

The new rule affects the Human Resources Code, Chapter 32; the Texas Government Code, Chapter 531; and the Texas Family Code, §266.003 and §266.006. No other statutes, articles, or codes are affected by this proposal.

§354.1186.Requirements for the Health Passport.

(a) The Health Passport is an electronic medical record used to document healthcare services provided to clients who receive services through the comprehensive foster care healthcare delivery system, mandated by the Texas Family Code, § 266.003 and §266.006, and other Medicaid clients as may be designated by the Health and Human Services Commission (HHSC).

(b) The contents of the Health Passport must include, but are not limited to:

(1) Client's name, birthdate, address of record, and Medicaid ID number;

(2) Name and address of each of the client's physicians and health care providers;

(3) A record of each visit to a physician or other healthcare provider, including routine checkups conducted in accordance with the Texas Health Steps program;

(4) A record of immunizations;

(5) Identification of the client's known health problems; and

(6) Information on all client prescriptions.

(c) The electronic Health Passport system must be secure and maintain the confidentiality of the client's health records in compliance with security and privacy rules adopted by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 C.F.R. §§164.302 - 164.318 and §§164.500 - 164.534.

(d) If the client is in foster care, the Health Passport information shall be available in printed and electronic formats to the following individuals when the client is discharged from foster care:

(1) The client's legal guardian, managing conservator, or parent; or

(2) The client, if the client is at least 18 years of age or has been awarded the legal rights of an adult through the removal of the disabilities of minority, as defined in the Texas Family Code, Title 2, Chapter 31.

(e) The administrator of the electronic Health Passport system shall be determined by HHSC. The administrator shall be responsible for meeting all requirements of the Health Passport.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2006.

TRD-200606866

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: February 4, 2007

For further information, please call: (512) 424-6576


Subchapter M. WOMEN'S HEALTH PROGRAM

1 TAC §§354.2510, 354.2512 - 354.2518

The Texas Health and Human Services Commission (HHSC) proposes to add a new Subchapter M, Women's Health Program, to its Medicaid Health Services chapter, §§354.2510 and 354.2512 - 354.2518.

Background and Justification

Section 32.0248 of the Human Resource Code, added by Acts 2005 by the 79th Texas Legislature during its regular session, and Rider 71 of the Appropriations Act, authorizes the Texas Health and Human Services Commission (HHSC) to implement a program to expand access to preventative health and family planning services through the medical assistance program for women between the ages of eighteen and forty-four. To implement this program, HHSC proposes to amend its Medicaid Health Services chapter by adding Subchapter M to Title 1, Chapter 354 of the Texas Administrative Code to create the Women's Health Program. The proposed rules set out the guidelines for determining and certifying eligibility and procedures related to the application process.

Section-by-Section Summary

Section 354.2510, Definitions, provides definitions of terms used in new Subchapter M. The requirements for applying and providing information are set out in §354.2513 Financial Eligibility requirements related to countable income and deductions are contained in §354.2514. The non-financial eligibility requirements related to citizenship, immigration status, age, residence, social security number, Third Party Resource, and identity are found in §354.2515. Medicaid eligibility effective dates are discussed in §354.2516. Section 354.2517 sets out the only change that must be reported by the participant. Finally, §354.2518 contains the information regarding the applicants right to appeal a determination.

Fiscal Note

Tom Suehs, Deputy Commissioner for Financial Services, has determined that during the first five-year period the proposed rule is in effect there will be a savings to the state of $268.1 million. Local Governments operating health facilities could experience additional flexibility in Family Planning funding sources provided by the Department of State Health Services, as a portion of their patients begin receiving Women Health Plan services. Local government operated public hospitals could experience a short-term change in the number of deliveries as clients receive these Family Planning Services. Long-term changes are not significant to these hospitals.

Small and Micro-business Impact Analysis

Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposal as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rule. There is no anticipated negative impact on local employment.

Public Benefit

Linda Franco, Associate Commissioner for Family Services, has determined that for each year of the first five years the proposed rules are in effect, the public will benefit from the adoption of the section. The anticipated public benefit, as a result of enforcing the section, will be the expansion of medical assistance to a population of women who are not currently eligible to receive benefits due to income limits, age, and household composition policies of other programs. It is anticipated that the expansion of services will also reduce the number of unintended pregnancies among low-income women unable to afford counseling, contraception, and health care services.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk 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 a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposal may be submitted to Regina Perez at P.O. Box 12668, Austin, Texas 78711-2668, by fax to (512) 206-5061, or by e-mail to gina.perez@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register .

Statutory Authority

The new rules are proposed 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 by §23.0248 of the Texas Human Resources Code which directs HHSC to establish this Women's Health Program.

The proposed new rules affect the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2510.Definitions.

The words and terms used in this subchapter have the following meanings, unless the context clearly indicates otherwise. The definitions apply to the Women's Health Program (WHP).

(1) Adjunctive Eligibility--Term used when a person's financial eligibility for the program is deemed because her inclusion in a group where at least one of the members receives services under another program such as food stamps or Medicaid.

(2) Budget Group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for medical assistance programs. The budget group may include both members who are eligible for the medical assistance program and those who are not.

(3) CMA--Children's Medical Assistance

(4) FPIL--Federal Poverty Income Limit

(5) HHSC--Health and Human Services Commission

(6) TANF--Temporary Assistance for Needy Families

(7) WHP--Women's Health Program

(8) WIC--Woman, Infant and Children supplemental nutrition program

(9) File Date--the date the application is received by HHSC.

§354.2512.Participation Requirements.

To receive benefits under the Women's Health Program, an applicant must be

(1) a female, age of 18 through 44

(2) not otherwise receiving benefits under Medicaid, CHIP, or Medicare services, and

(3) have countable income, as provided in §354.2514 of this subchapter relating to Financial Eligibility Requirements of this section, less than or equal to the 185% of the Federal Poverty Income Limit (FPIL).

§354.2513.Application Procedures.

An applicant may apply by submitting a one-page Women's Health Program application. The application will not be used to apply for any other programs.

(1) The Texas Health and Human Services Commission (HHSC) processes Women's Health Program applications using the application rules of the Temporary Assistance for Needy Families Program, as detailed in Chapter 372 of this title (relating to Texas Works), except as follows:

(A) HHSC also processes applications and renewals received via mail or fax;

(B) HHSC does not require a face-to-face or telephone interview at an initial or renewal application. The applicant may request an interview;

(C) HHSC may conduct a face-to-face interview with an applicant if HHSC has received conflicting information related to the household membership and income that affects eligibility and the information cannot be verified through other means;

(D) HHSC may conduct a face-to-face interview for renewals of Women's Health Program eligibility when there is no associated case record for TANF, food stamps or Medicaid coverage, and HHSC has received conflicting information related to household membership or income that affects eligibility and the information cannot be verified through other means;

(E) HHSC allows any office of a state Health and Human Services agency to accept an initial or renewal application; and

(F) HHSC contracts with third parties to accept applications from hospital districts (including state-owned teaching hospitals), federally qualified health centers, and county health departments.

(2) There are no conditions limiting the designation of an authorized representative.

§354.2514.Financial Eligibility Requirements.

An applicant for the Women's Health Program must meet the income eligibility rules under the Temporary Assistance for Needy Families Program, as detailed in Chapter 372 of this title (relating to Texas Works - Eligibility), except as follows:

(1) HHSC will verify an applicant's countable income by obtaining documents such as the following:

(A) copies of one or more paycheck stubs issued within 60-days prior to the file date;

(B) a copy of the most recent federal income tax return;

(C) a copy of the most recent Social Security Award Letter;

(D) copies of one or more child support check within 60-days prior to the file date; or

(E) written confirmation from an employer of the employee's income.

(2) HHSC will verify an applicant's income deductions by obtaining documents such as the following:

(A) a copy of a paycheck stub showing garnishment of wages for a child support deduction if the paycheck clearly indicates the deduction is for child support; or

(B) Office of the Attorney General (OAG) data or other documents HHSC considers reliable.

(3) HHSC will count TANF payments as income.

(4) HHSC will use the standard TANF work-related expense deductions and dependent care deductions, but not the other TANF earned income deductions.

(5) Increased income does not cause the denial of a participant's ongoing eligibility for the Women's Health Program.

(6) Applicants are considered adjunctively eligible at an initial or renewal application, and therefore, financially eligible, if:

(A) a member in her budget group receives WIC benefits,

(B) she is a member of a certified food stamp household, or

(C) she is in a Medicaid budget group for someone receiving Medicaid.

§354.2515.Non-Financial Eligibility Requirements.

To be eligible for the Women's Health Program (WHP), an applicant must meet the following eligibility criteria, in addition to the criteria detailed in §354.2514 of this title (relating to Financial Eligibility Requirements):

(1) Citizenship. Applicants must be U.S. citizens, as required by Children's Medical Assistance rules in Chapter 354 of this title.

(2) Legal Permanent Residents. Applicants must be aliens with approved Bureau of Citizenship and Immigration Services status, as required by the Temporary Assistance for Needy Families (TANF) rules found in Chapter 372, Subchapter B, Division 3 of this title (relating to Citizenship). However, certain eligible aliens who were admitted to the United States on or after August 22, 1996, are eligible for Medicaid for a seven-year period following entry to the country as specified in 8 United States Code §1612(b)(2)(A)(i), instead of the five-year period of eligibility for TANF.

(3) Resources. Resources are not requested or verified for the Women's Health Program.

(4) Age. Applicants must be at least age 18 and less than 45 years old to receive benefits. The applicant is considered 18 years of age the month of her 18th birthday and 44 years old through the month of her 45th birthday. Women are ineligible for WHP if an application is received the month prior to her 18th birthday or the month after she turns 45 years of age.

(5) Residence. The applicant must be a Texas resident.

(6) Social Security Number (SSN). Applicants must provide or apply for an SSN as required by Medically Needy program rules detailed in Chapter 354, Subchapter E of this title (relating to SSN) except that HHSC requests, but does not require, budget group members who are not eligible for Medicaid to provide or apply for an SSN.

(7) Third-party resources. Applicants and recipients must comply with third-party resources requirements, as detailed in the Human Resources Code, §32.033.

(8) Identity. Applicants must verify their identity at initial certification.

§354.2516.Medicaid Eligibility Effective Dates.

The Texas Health and Human Services Commission (HHSC) determines eligibility dates for the Women's Program Health program applicants as follows:

(1) The application must be processed by the 45th day from the file date.

(2) Program coverage begins on the 1st day of the application month on which the applicant met all eligibility criteria.

(A) An applicant is ineligible due to age if she submits an application the month before her 18th birthday or the month after her 45th birthday.

(B) Eligibility cannot be determined on a date earlier than the date the Women's Health Program was implemented.

(3) Applicants whose applications and renewals are certified receive a 12-month continuous period of eligibility.

(4) The Women's Health Program does not provide for retroactive Medicaid coverage under the WHP program. A person receiving WHP may apply for and receive 3-months prior Medicaid under another Medicaid program before or during their WHP eligibility period.

(5) The applicant's certification will end prior to the end of their 12-month continuous eligibility if the following occurs:

(A) the death of the recipient,

(B) applicant moves out-of-state, or

(C) she voluntarily withdrawals.

§354.2517.Requirement to Report Changes.

Women's Health Program recipients are only required to report moving out of the state.

§354.2518.Right to Appeal.

(a) Women's Health Program applicants and recipients have the right to appeal eligibility decisions made by the Health and Human Services Commission. Appeals are governed by HHSC fair hearing rules contained in Chapter 357 of this title (relating to Medical Fair Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to Medicaid applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2006.

TRD-200606867

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: February 4, 2007

For further information, please call: (512) 424-6576


Chapter 358. MEDICAID ELIGIBILITY

Subchapter G. APPLICATION FOR MEDICAID

1 TAC §358.610

Pursuant to the federal Deficit Reduction Act of 2005 (DRA), PL 109-362, the Texas Health and Human Services Commission (HHSC) proposes to amend §358.610 relating to Medicaid Coverage. Specifically the amendment is to subsection (c). The purpose of this amendment is to incorporate the mandatory provision under §1902(a)(10)(A)(i)(II) of the Social Security Act (SSA) as amended by the Deficit Reduction Act of 2005, Section 6065 of Public Law 109-171.

Background and Justification

On February 8, 2006, the DRA was signed into law. The DRA made changes to certain Medicaid eligibility provisions of the SSA, necessitating the change to the Texas rules. HHSC proposes to amend its Medicaid Eligibility chapter by amending a rule in Title 1, Subchapter G to, Chapter 358 of the TAC.

Rule Change Summary

Currently in Texas, Medicaid eligibility for Supplemental Security Income (SSI) recipients is effective the month of application or the first month of eligibility. Where retroactive eligibility is applicable, such eligibility is counted backwards for up to three months from the first month of SSI payment. SSI payment begins the month after application for SSI or the first month after eligibility criteria are met to receive SSI. The first month of Medicaid eligibility in Texas is referred to as the "gap" month. States have not been required to begin Medicaid eligibility for the "gap" month.

Section 6065 of P.L. 109-171 eliminates the "gap" month by amending section 1902(a)(10)(A)(i)(II) of the SSA to deem individuals under 21 found eligible for and receiving SSI payment to be receiving SSI without regard to the delay imposed under section 1611(c)(7) of the SSA. Therefore, an SSI recipient under age 21 becomes Medicaid eligible in the month before the first month of SSI payment, rather than the month of SSI payment. Effective February 8, 2007, SSI recipients must be eligible for Medicaid beginning with the "gap" month. When computing retroactive Medicaid eligibility, SSI recipients under 21 will have retroactive Medicaid eligibility counted backwards for up to three months from the "gap" month rather than the first month of SSI payment.

In all other respects, retroactive Medicaid eligibility will be computed in accordance with the policy the State employs for all other SSI recipients.

This provision is effective for all SSI applications filed on behalf of children on or after February 8, 2007. However, the full effect of section 6065 will not be realized until all months of potential Medicaid eligibility, including any retroactive months under section 1902(a)(34), is after February 8, 2007. Until that time, rules in effect before enactment of the Deficit Reduction Act of 2005 for computing retroactive Medicaid eligibility will continue to be applicable for Medicaid recipients under age 21 who also receive SSI.

Fiscal Note

Tom Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first 5-year period the proposed amendments are in effect, there will only be a fiscal impact for one-time automation changes. One additional month of client service medical cost has no significant fiscal impact. Estimated additional costs will only be for the first fiscal year (2007) and are estimated to be $167,688 from both the state and federal funds for a total of $335,376. The proposed amendments will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.

Small and Micro-business Impact Analysis

Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposed amendments, as they will not be required to alter their business practices as a result of the amendments. There are no anticipated economic costs to persons who are required to comply with the proposed amendments. There is no anticipated negative impact on local employment.

Public Benefit

Anne Heiligenstein, Deputy Executive Commissioner for Social Services, has determined that for each of the first five years the proposed amendments are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit of enforcing the proposed amendments is a potential increased month of coverage for those SSI recipients, who are less than 21 years of age, applying for retroactive Medicaid.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas 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 a state or a sector of the state. These proposed amendments are not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that these proposed amendments do not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposed amendments may be submitted to Dee Church at Mail Code 2090, P.O. Box 12668, Austin, TX 78711-2668, by fax to (512) 206-5211, or by e-mail to dee.church@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register .

Statutory Authority

The amendment is proposed under the Texas Government Code, §531.033, which provides the Executive 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.

The proposed amendments affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§358.610.Medicaid Coverage.

(a) (No change.)

(b) An individual may qualify for prior eligibility only, for current eligibility only, or for future eligibility or for a combination of the three. Coverage may be regular, institutional, or a combination of the three. For processing and accounting purposes, eligibility is further divided into three types:

(1) - (3) (No change.)

(c) Retroactive coverage.

(1) For certified Supplemental Security Income (SSI) clients age 21 or older , Medicaid coverage automatically begins with the month prior to the first month of SSI payment and is also available for the two preceding months if the individual meets all Medicaid eligibility requirements for those two months.

(2) For certified Supplemental Security Income (SSI) clients who are under age 21, Medicaid coverage automatically begins with the month prior to the first month of SSI payment and is also available for the three preceding months if the individual meets all Medicaid eligibility requirements for those three months.

(3) For other clients, the three months considered in determining eligibility are those months immediately before the month in which the individual filed a denied application for SSI, filed a formal application for MAO, transferred from a limited Medicaid program such as QMB, or the three months before the month an application is received from a decedent's agent. The department considers as potentially eligible for retroactive Medicaid coverage the following individuals:

(A) [ (1) ] those who have applied for SSI cash benefits,

(B) [ (2) ] those who apply for Medical Assistance Only, and

(C) [ (3) ] deceased persons whose application is being filed by a bona fide agent. In this situation, the time period for which three-months-prior coverage applies is the three months before the receipt of the application.

(d) (No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2006.

TRD-200606868

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: February 4, 2007

For further information, please call: (512) 424-6576