PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PURCHASED HEALTH SERVICES

DIVISION 11. GENERAL ADMINISTRATION

1 TAC §354.1149

The Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1149, relating to Medicaid benefit exclusions and limitations.

Background and Justification

Currently, adults in Medicaid managed care plans receive annual preventive well exams as a Medicaid benefit; however, this is not a benefit for adults receiving Medicaid through fee-for-service or Primary Care Case Management. HHSC proposes to add adult preventive services as a benefit for all eligible adults. This requires amending §354.1149 to remove adult preventive services from the list of Medicaid excluded services. The benefit will include preventive services recommended by the U.S. Preventive Services Task Force. The rule conforms with legislative emphasis on preventive health services.

The amendments also update the rule to reflect current HHSC policies and procedures regarding a number of other Medicaid benefit exclusions and limitations.

Additional changes are proposed to update terms, remove obsolete language, clarify language, and re-format the rule.

Section-by-Section Summary

Section 354.1149(a) describes a number of services that are not Medicaid benefits. Subsections (b), (c) and (d) describe other Medicaid benefit exclusions and limitations.

HHSC proposes to make the following changes to §354.1149(a) to reflect the new adult preventive services benefit:

Remove the exclusion of most immunizations from subsection (a)(2) and move revised immunization benefit information to re-numbered subsection (a)(9).

Revise re-numbered subsection (a)(9) to remove the reference to services and supplies provided in connection with routine physical exams because these services and supplies will be covered as part of the adult preventive services benefit. Insert new language in subsection (a)(9) to exclude from benefits immunizations for foreign travel or immunizations that are not part of a routine preventive immunization schedule. Immunizations that are part of a routine preventive immunization schedule will be covered under the new adult preventive services benefit, unless specifically excluded by HHSC.

HHSC proposes to make the following additional changes to §354.1149 to reflect current HHSC policies and procedures regarding Medicaid benefit exclusions and limitations:

Revise subsection (a) to clarify that Medicaid reimbursement is only available for service and supplies that are medically necessary; that the listed benefit exclusions and limitations are only applicable for services or supplies provided under Subchapter A related to Medicaid purchased health services; that the listed exclusions and limitations are not applicable when the services or supplies are benefits in the Texas Health Steps Comprehensive Care Program; and that additional exclusions and limitations are listed in the Texas Medicaid Provider Procedures Manual.

Revise subsection (a)(1) to clarify that benefits do not include services provided to a recipient between the ages of 22 and 64 in an institution for mental disease.

Remove from subsection (a)(2) the reference to occupational therapy because occupational therapy is a benefit.

Remove from subsection (a)(5) extraneous language related to providers of dental services and a description of these services. Remove an obsolete reference to another rule. Remove a reference to services authorized under the Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT) because this reference was added to the top of subsection (a) (referenced in subsection (a) as the Texas Health Steps Comprehensive Care Program).

Remove subsection (a)(6) relating to eyeglasses and exams because these are benefits. Subsequent paragraphs are re-numbered.

Clarify in re-numbered subsection (a)(7) that orthodontic services that are authorized and initiated while a recipient is Medicaid eligible may be continued for a limited time after a recipient is no longer Medicaid eligible.

Revise re-numbered subsection (a)(8) to match the corresponding paragraph in the Social Security Act, Section 1862(a)(10) related to cosmetic surgery.

Revise re-numbered subsection (a)(10) to clarify that certain immediate family members may provide personal care services as described in Title 42 Code of Federal Regulations §488.303.

Delete subsection (a)(12) related to services or supplies that are not reasonable and necessary because a reference was added to the top of subsection (a) regarding services and supplies that are not medically necessary. Also, delete the reference in subsection (a)(12) to cosmetic surgery because it duplicates language in re-numbered subsection (a)(8).

Delete subsection (a)(14) related to utilization review findings and services that are not medically necessary because it is redundant with the revised language at the top of subsection (a).

Delete subsection (a)(15) related to whole blood or packed red cells because these products are a benefit when medically necessary.

Delete subsection (a)(19) related to the prior authorization requirement for parenteral hyperalimentation because the many Medicaid benefits that require prior authorization are not listed in this rule.

Revise re-numbered subsection (a)(15) relating to the annual inpatient limit of $200,000 per recipient to clarify current policy, remove an exemption for recipients less than age one because this rule does not apply to Medicaid services provided through the Texas Health Steps Comprehensive Care Program, remove extraneous language, update references, and re-format.

Revise re-numbered subsection (a)(16) relating to services or supplies that are experimental or investigational, to remove extraneous language.

Revise subsection (c) to clarify rule language.

Additional changes are proposed throughout the rule to update terms, remove obsolete language, clarify language, and re-format the rule.

Fiscal Note

Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rule is in effect there will be a fiscal impact of $8,772,506 (SFY 2010); $9,431,080 (SFY 2011); $10,171,179 (SFY 2012); $10,974,702 (SFY 2013); $11,852,679 (SFY 2014) 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 new or amended requirements, as they will not be required to alter their business practices as a result of the rule. The new and amended requirements update the rule to conform to current policies and practices, and add a new adult well exam benefit that is not expected to alter business practices.

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 amendments are in effect, the public will benefit from the adoption of the amended rule. The anticipated public benefit of enforcing the proposed amendments 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 Texas Government Code. Under §2007.003(b) of the Texas Government Code, HHSC has determined that Chapter 2007 of the Texas Government Code does not apply to this rule. The changes this rule makes do not implicate a recognized interest in private real property. Accordingly, HHSC is not required to complete a takings impact assessment regarding this rule.

Public Comment

Written comments on the proposed amendments may be submitted to Garry Walsh, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 13247, H390, Austin, Texas 78711; by fax to (512) 249-3731; or by e-mail to garry.walsh@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

Public Hearing

A public hearing is scheduled for August 20, 2009, from 2:00 to 3:00 p.m. at the John H. Winters Building, Public Hearing Room, 125-E, located at 701 W. 51st Street, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Mary Haifley at (512) 491-5605.

Statutory Authority

The amendments are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Human Resources Code §32.021 and 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 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.

§354.1149.Exclusions and Limitations.

(a) Notwithstanding any other provision of this subchapter, Medicaid services or supplies that are not medically necessary will not be considered for Medicaid reimbursement. The following benefit exclusions and limitations are applicable under the Medicaid program for services provided under this subchapter. They do not apply to Medicaid services provided through the Texas Health Steps Comprehensive Care Program. Additional exclusions and limitations are listed in the Texas Medicaid Provider Procedures Manual. The following benefits are not included in the Texas Medicaid Program [Benefits do not extend to]:

(1) services provided to any individual who is an inmate in a public institution (except as a patient in a medical institution approved for participation in the Medicaid program [Texas Medical Assistance Program ]), or is a patient in:

(A) an institution for tuberculosis;[ , in a mental institution, or in]

(B) the hospital or nursing sections of institutions for the mentally retarded; or

(C) an institution for mental disease if the patient is between the ages of 22 and 64;

(2) special shoes or other supportive devices for the feet and[, ] ambulation aids (except as provided for in the home health services program)[, immunizations (except for influenza and pneumonia immunizations determined to be medically necessary by the department or its designee), or occupational therapy (except as provided for under other rules in this chapter)];

(3) any services provided by military medical facilities, except: [for]

(A) those military hospitals enrolled to provide inpatient emergency services;[,]

(B) Veterans Administration facilities;[,] or

(C) United States Public Health Service hospitals;

(4) care and treatment related to any condition covered by [ for which benefits are provided or available under the] workmen's compensation laws;

(5) care, treatment, or other services by a doctor of dentistry unless: [dental surgery, doctor of medical dentistry, or doctor of dental medicine, including services related to teeth or structures directly supporting the teeth or other services provided by a dentist:]

(A) the recipient's dental diagnosis is causally related to a life-threatening medical condition; or [except as described and limited under §29.1402 of this title (relating to Authorized Dentists' Services);]

(B) the treatment is [unless] specifically authorized by the Health and Human Services Commission (HHSC) [department] or its designee; [or]

[(C) unless services are specifically authorized under the Early and Periodic Screening, Diagnosis, and Treatment Program (EPSDT);]

[(6) eyeglasses and examinations for the prescription and fitting thereof, except as provided in this chapter;]

(6) [(7)] any care or services to the extent that a benefit is paid or payable under Medicare;

(7) [(8)] any services or supplies provided [delivered ] to an individual before the effective date of designation by HHSC [ the department] as an eligible recipient or after the effective date of denial as an eligible recipient except orthodontic services that are authorized and initiated while the recipient is eligible for Medicaid may be continued for 36 months after a recipient is no longer Medicaid eligible;

(8) [(9)] any services or supplies provided in connection with cosmetic surgery except as required for the prompt repair of accidental injury or for improvement of the functioning of a malformed body member [or when specially authorized by the department];

(9) immunizations specifically for travel to or from foreign countries. Immunizations included on the immunization schedule approved by the Advisory Committee on Immunization Practices (ACIP) are a benefit unless an immunization is specifically excluded by HHSC;

[(10) any services or supplies provided in connection with a routine physical examination except as otherwise provided in this chapter;]

(10) [(11)] any services provided by an immediate relative of the eligible recipient or member of the eligible recipient's household except for personal care services;

[(12) any services or supplies which are not reasonable and necessary for the diagnosis or treatment of illness or injury or to improve the functioning of a malformed body member, except cosmetic surgery, when specially authorized by the department, unless otherwise specifically provided in this chapter;]

(11) [(13)] custodial care;

[(14) any services or supplies provided to an individual after a finding under utilization review procedure that such services or supplies are not medically necessary;]

[(15) whole blood or packed red cells, except as provided in this chapter;]

(12) [(16)] any services or supplies provided outside of the United States, except for deductible and coinsurance portions of Medicare benefits as provided for in this chapter;

(13) [(17)] any services or supplies not provided for in this chapter;

(14) [(18)] any services or supplies not provided for in this chapter for:

(A) the treatment of flat foot conditions and the prescription of supportive devices therefor;

(B) the treatment of subluxations of the foot; or

(C) routine foot care (including the cutting or removal of corns, warts, or calluses, the trimming of nails, and other routine hygiene care);

[(19) any parenteral hyperalimentation provided on an outpatient hospital basis or as an in-home service without prior authorization from the department's health insuring agent, nor to any outpatient hyperalimentation administered as a nutritional supplement;]

(15) [(20)] any medical and remedial care, services, and supplies provided to a hospital inpatient [ by practitioners, providers, or suppliers ] after total hospitalization- related expenditures under the Medicaid [Texas Medical Assistance] Program reach $200,000 per recipient, per 12-month benefit period unless the services are exempted by subparagraphs (A) - (C) of this paragraph. [, except as specified in §29.1125 of this title (relating to Organ Transplants), or except as otherwise specified by the department as directed by the department's board. This limit does not apply to medically necessary services provided to an inpatient less than age one (including inpatients under age one who are admitted to and remain in a hospital past their first birthday). This limit also does not apply to physician (MD or DO) services as defined in Title XIX laws and regulations and state law.] For the purposes of this limit, "12-month benefit period" means 12 consecutive months beginning November 1 of each year and ending October 31 of the next year. The limit applies to hospitalization-related services while the recipient is a hospital inpatient regardless of where the services are provided,[; regardless of] how soon[,] within the 12-month period[,] the limit is reached,[;] and [regardless of] how many hospital stays are involved. For the purposes of this limit, HHSC or its designee [the department's agent] processes and pays claims, if payable, in order of receipt. The services exempted from the $200,000 limit are: [;]

(A) covered benefits under §354.1175 of this title (relating to Organ Transplants);

(B) care, services, and supplies otherwise authorized by HHSC; and

(C) physician services as allowed by Title XIX laws and regulations and state law;

(16) [(21)] any services or supplies that are experimental or investigational [services, supplies, or procedures as determined by the United States Public Health Service; a state organization; or other medical authority, including the department].

(b) Outpatient Behavioral Health Services. Benefits to an individual for the diagnosis or treatment of mental disease, psychoneurotic, and personality disorders while not confined as an inpatient in a hospital are limited to 30 visits to enrolled practitioners per calendar year. This utilization control limitation may be exceeded when prior authorized on a case-by-case basis.

(c) Private Room Facilities. Private room facilities are not a benefit unless a facility submits [considered medically necessary except when on the basis of medical opinion critical or contagious illness exists, or when the eligible recipient's condition results in undue disturbance to other patients, or the need for care is emergent and lower cost facilities are not immediately available. The health insuring agent requires hospitals to file with the health insuring agent] a physician's certification of [such] medical necessity to HHSC or its designee certifying that one of the following conditions is met:[.]

(1) the recipient, based on a medical opinion, has a critical or contagious illness;

(2) the eligible recipient's condition results in undue disturbance to other patients; or

(3) the need for care is emergent and lower cost facilities are not immediately available.

(d) Institutional Care. Separate payments are not made for services and supplies in an institution where the reimbursement formula and vendor payment include such services or supplies as a part of the institutional care.

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 July 30, 2009.

TRD-200903222

Steve Aragón

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: September 13, 2009

For further information, please call: (512) 424-6900

SUBCHAPTER M. MISCELLANEOUS MEDICAID PROGRAMS

DIVISION 4. YOUTH EMPOWERMENT SERVICES WAIVER PROGRAM

1 TAC §355.9060

The Texas Health and Human Services Commission (HHSC) proposes to add new §355.9060, Reimbursement Methodology for the Youth Empowerment Services Waiver Program, to Title 1, Part 15, Chapter 355, Subchapter M, Division 4, Reimbursement Methodology for the Youth Empowerment Services Waiver Program.

Background and Justification

The Department of State Health Services (DSHS) has developed the Youth Empowerment Services (YES) waiver to provide intensive, community-based services to children and youth who meet the criteria for inpatient psychiatric hospitalization. The waiver will implement a pilot program to provide certain services to children and adolescents in Bexar and Travis counties. The goals of the proposed waiver include:

providing a more complete continuum of community-based services and supports for children with severe emotional disturbances;

preventing or reducing inpatient psychiatric admissions for children with severe emotional disturbances;

preventing entry and recidivism into the foster care system;

reducing out-of-home placements by all child-serving agencies; and

improving the clinical and functional outcomes of youth and their families.

The Centers for Medicare and Medicaid Services approved the YES waiver effective September 1, 2009.

This proposed rule describes the rate methodology for the YES waiver.

Section-by-Section Summary

Subsection (a) establishes that the rates for the YES waiver are developed based on rates determined for other programs that provide similar services. If payment rates are not available from other programs that provide similar services, HHSC will model rates based a pro forma analysis. A pro-forma analysis makes assumptions about staff salaries and service requirements and estimates the basic types and costs of products and services necessary to deliver services that meet federal and state requirements.

Subsection (b) establishes that YES waiver rate development is governed by 1 TAC §355.101 (relating to Introduction) and §355.105 (relating to General Reporting and Documentation Requirements, Methods and Procedures).

Fiscal Note

Machelle Pharr, Chief Financial Officer for the Department of State Health Services, has determined that, for each year of the first five-year period that the proposed rule is in effect, there are positive fiscal implications for state government as a result of enforcing or administering this rule. The proposed rule will not result in fiscal implications for local health and human services agencies. There are no fiscal implications for local governments as a result of enforcing and administering the section.

The effect on state government for the first five years the proposed rule is in effect is an estimated decrease in cost of $1,141,260 in fiscal year (FY) 2010; $839,742 in FY 2011; $823,056 in FY 2010; $823,056 in FY 2011; and $823,056 in FY 2012. The decrease is due to the cost savings associated with waiver programs.

Small Business and Micro-business Impact Analysis

Ms. Pharr, as required by Government Code §2006.002, Agency Actions Affecting Small Businesses, Adoption of Rules with Adverse Economic Effect, has also determined that the proposed rule will not have an adverse economic effect on small or micro-businesses. The program does not impose a regulatory burden on businesses of any size. There will be an "open enrollment" process for providers who wish to participate in the program. Any qualified provider may participate. Information about the program, including reimbursement rates, will be made available to the public prior to the enrollment process. There are no anticipated economic costs to persons who are required to comply with the section as proposed. There is no anticipated negative impact on local employment.

Public Benefit

Carolyn Pratt, Director of Rate Analysis, has determined that, for each of the first five years the rule is in effect, the expected public benefit is that the rule will describe the reimbursement methodology used to develop rates for this program.

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 Texas Government Code §2007.043.

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.

Public Comment

Questions about the content of this proposal may be directed to Sarah Hambrick in the HHSC Rate Analysis Department by telephone at (512) 491-1431. Written comments on the proposal may be submitted to Ms. Hambrick by facsimile at (512) 491-1998, by e-mail to sarah.hambrick@hhsc.state.tx.us, or by mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200, within 30 days of publication of this proposal in the Texas Register.

Statutory Authority

The new rule is proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Human Resource Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

The proposed 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.

§355.9060.Reimbursement Methodology for the Youth Empowerment Services Waiver Program.

(a) Payment rate determination. Payment rates are developed based on rates determined for other programs that provide similar services. If payment rates are not available from other programs that provide similar services, payment rates are determined using a pro forma approach in accordance with §355.105(h) of this title (relating to General Reporting and Documentation Requirements, Methods, and Procedures).

(b) Related information. The information in §355.101 of this title (relating to Introduction) and §355.105(g) of this title also applies.

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 July 29, 2009.

TRD-200903218

Steve Aragón

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: September 13, 2009

For further information, please call: (512) 424-6900