Part 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
Chapter 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
Subchapter AA. VENDOR PAYMENT
The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new §19.2614, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification without changes to the proposed text published in the January 18, 2008, issue of the Texas Register (33 TexReg 521).
The new section is adopted to allow a nursing facility to procure a customized power wheelchair (CPWC) for a Medicaid-eligible nursing facility resident. The nursing facility must purchase the CPWC if the need for the CPWC is identified and the nursing facility can receive reimbursement through a DADS prior approval reimbursement system. CPWCs have been available to a Medicaid-eligible nursing facility resident with personal funds as an incurred medical expense.
The addition of CPWCs as a service in the nursing facility Medicaid program is a provision of the settlement agreement in the lawsuit filed in federal court against HHSC and DADS entitled LeCompte, et al. v. Hawkins, et al., which was settled effective June 29, 2007. The federal Centers for Medicare and Medicaid Services (CMS) has approved a Medicaid state plan amendment to add this service to the nursing facility Medicaid program.
DADS received written comments from the Coalition for Nurses in Advanced Practice. A summary of the comment and the response follow.
Comment: Concerning §19.2614(e)(3) and (o), a commenter requested that DADS amend these subsections to specify that a physician may delegate tasks described in those subsections to a nurse practitioner, clinical nurse specialist, or physician assistant as reflected in 40 TAC §19.1205(c).
Response: The agency agrees that the physician duties referenced in §19.2614(e)(3) and (o) may be delegated in accordance with §19.1205(c) in Subchapter M, Physician Delegation. Section 19.1205(c) is a rule of general applicability which states that any required physician task in a Medicaid nursing facility may be satisfied when performed by a nurse practitioner, clinical nurse specialist, or physician assistant in accordance with applicable state laws, rules, and regulations. A section in Chapter 19 that is limited to physician delegation of specific tasks may give the impression that a physician is not allowed to delegate other tasks described in the chapter. Therefore, the agency declines to make the suggested change at this time.
The new section is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.
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 April 7, 2008.
TRD-200801815
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Effective date: May 1, 2008
Proposal publication date: January 18, 2008
For further information, please call: (512) 438-3734