PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 33. TELEMEDICINE SERVICES
The Texas Health and Human Services Commission (HHSC) proposes the repeal of 1 TAC §354.1430, concerning Definitions; §354.1432, concerning Benefits and Limitations; and §354.1434, concerning Requirements for Telemedicine Providers, and to replace the repealed rules with proposed new 1 TAC §354.1430, concerning Definitions, and §354.1432, concerning Benefits and Limitations, under Chapter 354, Subchapter A, Division 33, relating to Telemedicine Services.
Background and Justification
The Texas Medicaid program allows certain services to be provided via telemedicine. During a telemedicine visit, a distant site provider provides services to a patient who is located at another site (the patient site). A presenter at the patient site introduces the patient to the distant site provider for examination, and may assist in the telemedicine visit.
Senate Bill (SB) 24 and SB 760, 80th Legislature, Regular Session, 2007, required HHSC to make policy changes to the Medicaid telemedicine program. SB 24 instructs HHSC to add office visits as an additional telemedicine service for which distant site providers may receive reimbursement. This bill also directs HHSC to either: 1) allocate reimbursement between the distant site provider and the patient site provider; or 2) establish a facility fee that the distant site provider is required to pay the patient site provider. SB 760 changes the Medicaid telemedicine terminology and directs HHSC to encourage all health-care providers and health-care facilities to provide services via telemedicine.
In order to implement SB 24 and SB 760, and further align Texas Medicaid telemedicine policies with Medicare thereby reducing provider confusion, HHSC proposes to repeal §§354.1430, 354.1432, and 354.1434 related to Medicaid telemedicine, and replace them with new §354.1430 and §354.1432.
The new rules remove the limitations on the location of the distant site, expanding the options for distant site locations and the distant site provider base. The rules also clarify the existing rule that only physicians can be distant site providers. In addition, the new rules expand the allowable telemedicine codes from the 10 currently allowed consultation codes to the following additional services: office visits, pharmacologic management, psychiatric diagnostic interview examinations, and individual psychotherapy. These additions both comply with SB 24 and build on the state's Medicaid mental health telemedicine pilot. Also in line with the legislation and Medicare, the rules modify current Medicaid policy to allow any licensed or certified health professional to serve as the patient site presenter. Finally, the rules specify that HHSC will directly reimburse the patient site presenter a facility fee rather than a professional fee.
Section-by-Section Summary
Proposed new §354.1430 replaces repealed §354.1430. The proposed rule adds definitions related to Medicaid services provided via telemedicine and updates repealed definitions also included in the new rule by: 1) removing the limitations on the location of the distant site; 2) expanding the types of health professionals who can act as patient site presenters; 3) clarifying the role and qualifications of the patient site presenter; and 4) aligning the definition of an underserved area with the new federal definition. To reduce confusion, the new rule does not include definitions for teleradiology and telepathology. Medicaid reimburses for the interpretation of diagnostics (radiology/laboratory) regardless of how an image is transmitted or stored. The Texas Medicaid program does not reimburse separately for transmission and storage.
Proposed new §354.1432 replaces repealed §354.1432. The proposed rule adds the benefits and limitations for Medicaid services provided via telemedicine including: 1) adding services that are eligible for Medicaid reimbursement when provided via telemedicine; and 2) clarifying patient site presenter responsibilities.
Section 355.1434, which outlines the requirements for telemedicine providers, is repealed, as provisions of this rule have been incorporated into the two proposed new rules.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed repeal and new rules are in effect there will be a fiscal impact to state government of $105,772 (SFY2009); $118,203 (SFY2010); $130,940 (SFY2011); $143,249 (SFY2012) and $156,714 (SFY2013) as a result of allowing a wider array of providers, presenters, locations, and services at the patient and distant sites and the addition of a facility fee payable to the patient site. The proposal 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 repeal and new rules, as they will not be required to alter their business practices as a result of the proposal. There are no anticipated economic costs to persons who are required to comply with the proposal. 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 repeal and new rules are in effect, the public will benefit from the adoption of the proposal. The anticipated public benefit of the proposed repeal and new rules 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 these rules. The changes these rules make do not implicate a recognized interest in private real property. Accordingly, HHSC is not required to complete a takings impact assessment regarding these rules.
Public Comment
Written comments on the proposed repeal and new rules may be submitted to Tania Colon, Senior Policy Analyst, Medicaid/CHIP Division, Texas Health and Human Services Commission, P.O. Box 85200, H600, Austin, Texas 78708; by fax to (512) 491-1953; or by e-mail to tania.colon@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
A public hearing is scheduled for Tuesday, January 20, 2009 at 9:00 a.m. to 10:00 a.m. in the John H. Winters Building, Public Hearing Room 125, located at 701 W. 51st Street, Austin, Texas 78751. Persons requiring further information, special assistance, or accommodations should contact Pamela Dunn at (512) 491-1488.
1 TAC §§354.1430, 354.1432, 354.1434
(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
Statutory Authority
The repeals 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 repeals 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.
§354.1430.Definitions.
§354.1432.Benefits and Limitations.
§354.1434.Requirements for Telemedicine Providers.
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 19, 2008.
TRD-200806612
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 1, 2009
For further information, please call: (512) 424-6900
Statutory Authority
The new rules 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 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.
§354.1430.Definitions.
The following words and terms, when used in this chapter, have the following meanings.
(1) Telemedicine--The practice of health care delivery, by a provider who is located at a site other than the site where the patient is located, for the purposes of evaluation, diagnosis, consultation, or treatment that requires the use of advanced telecommunications technology. Telephone conversations, chart reviews, electronic mail messages, and facsimile transmissions are not considered telemedicine.
(2) Distant site provider--The distant site provider uses telemedicine to provide health care services to the patient. The distant site provider must be a physician who is licensed to practice medicine in Texas under Subtitle B, Title 3, Occupations Code.
(3) Distant site location--The distant site location is where the distant site provider is physically located.
(4) Patient site presenter--The patient site presenter is the individual at the patient site who introduces the patient to the distant site provider for examination, and to whom the distant site provider may delegate tasks and activities in accordance with 22 TAC §174.6 (relating to Delegation to and Supervision of Telepresenters). The patient site presenter must be:
(A) Licensed or certified in this state to perform health care services and must present and/or be delegated tasks and activities only within the scope of the individual's licensure or certification; and/or
(B) A qualified mental health professional (QMHP) as defined in 25 TAC §412.303(31) (relating to Definitions).
(5) Patient site location--The patient site location is where the client is physically located. It is limited to the following locations:
(A) State hospital;
(B) State school;
(C) One of the following locations in a rural or underserved area:
(i) Physician office;
(ii) Hospital;
(iii) Rural health clinic (RHC);
(iv) Federally qualified health center (FQHC);
(v) Intermediate care facility for persons with mental retardation (ICF/MR) that is not a state school;
(vi) Community center as defined in Health and Safety Code §534.001 or outreach site associated with a community center; or
(vii) Local health department established under Health and Safety Code §121.031, or public health district established under Health and Safety Code §121.041.
(6) State hospital--A state hospital is a hospital with an inpatient component and operated by the Department of State Health Services.
(7) State school--Also referred to as a "State MR Facility." A state school or state center with a mental retardation residential component as defined in 40 TAC §2.253(42) (relating to Definitions).
(8) Rural area--A rural area is defined as a county that is not included in a metropolitan statistical area as defined by the U.S. Office of Management and Budget (OMB) according to the most recent United States Census Bureau population estimates.
(9) Underserved area--An underserved area is an area that meets the current definition of a medically underserved area or medically underserved population (MUP) by the U.S. Department of Health and Human Services (DHHS), until DHHS adopts and implements the rule proposed in the Federal Register on February 29, 2008, that would revise and consolidate the criteria and processes for designating MUPs and health professional shortage areas. At that time, an underserved area will be defined as an area that meets the DHHS Index of Primary Care Underservice criteria.
§354.1432.Benefits and Limitations.
(a) Services provided via telemedicine are a benefit of the Texas Medicaid Program as provided in this rule.
(1) Services provided via telemedicine must be provided through direct "face-to-face" interactive video communications with the client to be eligible for reimbursement.
(2) The following services provided by a distant site provider may be reimbursed if provided via telemedicine:
(A) Consultations;
(B) Office or other outpatient visits;
(C) Psychiatric diagnostic interviews;
(D) Pharmacologic management; and
(E) Psychotherapy.
(b) Texas Health Steps (THSteps), also known as Early and Periodic Screening, Diagnosis and Treatment, preventive health visits are not reimbursed if performed via telemedicine. Health care or treatment provided via telemedicine subsequent to a THSteps preventive health visit for conditions identified during a THSteps preventive health visit may be reimbursed.
(c) The patient site presenter must be "readily available." "Readily available" means that the patient site presenter must be at the patient site location when the service is provided via telemedicine.
(d) Documentation in the patient's medical record for a service provided via telemedicine must be the same as for a comparable in-person service.
(e) Confidentiality of the patient's medical information is to be maintained as required by Occupations Code, Chapters 111 and 159 and other applicable law.
(f) The requirements for authorized disclosure of confidential information relating to clients in state hospitals and residents in state schools are included, but not limited to, Health and Safety Code §611.004.
(g) Services provided via telemedicine are reimbursed in accordance with the Medicaid reimbursement methodology as defined in §355.7001 of this title (relating to Telemedicine Services Reimbursement).
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 19, 2008.
TRD-200806613
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 1, 2009
For further information, please call: (512) 424-6900
SUBCHAPTER G. TELEMEDICINE SERVICES AND OTHER COMMUNITY-BASED SERVICES
The Texas Health and Human Services Commission (HHSC) proposes the repeal of 1 TAC §355.7001, concerning Telemedicine Services Reimbursement, and to replace it with new 1 TAC §355.7001, concerning Telemedicine Services Reimbursement.
Background and Justification
The Texas Medicaid program allows certain services to be provided via telemedicine. During a telemedicine visit, a distant site provider provides services to a patient who is located at another site (the patient site). A presenter at the patient site introduces the patient to the distant site provider for examination and may assist in the telemedicine visit.
Senate Bill (SB) 24 and SB 760, 80th Legislature, Regular Session, 2007, directed HHSC to make policy and reimbursement methodology changes to the Medicaid telemedicine program. SB 24 requires HHSC to provide reimbursement under the Medicaid program for an office visit provided through telemedicine by a physician who is assessing and evaluating the patient from a distant site under certain conditions. This bill also directed HHSC to develop rules to either: (1) allocate reimbursement between a physician consulting from a distant site and a health professional present with the patient; or (2) establish a facility fee that the distant site provider must pay the patient site provider. SB 760 changes the Medicaid telemedicine terminology and directs HHSC to encourage all health-care providers and health-care facilities to provide services via telemedicine.
In order to implement SB 24 and SB 760, and to further align Texas Medicaid telemedicine services with Medicare, thereby reducing provider confusion, HHSC Rate Analysis is proposing the repeal and replacement of the telemedicine reimbursement methodology rule at 1 TAC §355.7001 in accordance with the proposed new program policy rules at 1 TAC §354.1430 and 1 TAC §354.1432.
The proposed new policy rules remove the limitations on the location of the distant site, expand the options for distant site locations and the distant site provider base, as well as expand the distant site professional services to include office visits, pharmacologic management, psychiatric diagnostic interview examinations, and individual psychotherapy. The proposed program policy rules allow any licensed or certified health professional to serve as the patient site provider/presenter and add local health departments as patient site locations.
Under the current telemedicine reimbursement rule, Medicaid reimburses both the physician at the distant site and allowable providers at the patient site a professional fee for telemedicine services in the same manner as their other professional services. The proposed new §355.7001 states that HHSC will reimburse the patient site location a facility fee, rather than paying the patient site presenter a professional fee. The change to a facility fee for the patient site more closely aligns Medicaid telemedicine reimbursement with Medicare and complements the new program policy rules, which expand the types of health professionals that may serve as the patient site provider/presenter. The new rule also states that Medicaid will reimburse physicians who bill as distant site providers for their Medicaid telemedicine professional services in the same manner as their other professional services, which is consistent with the current rule.
Section-by-Section Summary
HHSC proposes to repeal current 1 TAC §355.7001 and replace it with new 1 TAC §355.7001 to outline reimbursement for distant site physicians and patient site locations.
New subsection (a) states that Medicaid will reimburse physicians who bill as distant site providers for their Medicaid telemedicine professional services in the same manner as their other professional services, which is consistent with the current rule.
New subsection (b) changes the reimbursement methodology for patient site providers. HHSC proposes that patient site locations be reimbursed a facility fee determined by HHSC, rather than paying patient site providers professional fees.
Fiscal Note
Thomas M. Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed repeal and new rule are in effect there will be a fiscal impact to state government of $105,772 (SFY2009); $118,203 (SFY2010); $130,940 (SFY2011); $143,249 (SFY2012); and $156,714 (SFY2013) as a result of allowing a wider array of providers, presenters, locations, and services at the patient and distant sites and the addition of a facility fee payable to the patient site. The proposed repeal and new 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 repeal and new rule as proposed, as they will not be required to alter their business practices as a result of the proposal. There are no anticipated economic costs to persons who are required to comply with the proposal. 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 repeal and new section are in effect, the public will benefit from the adoption of the proposal. The anticipated public benefit of the proposed repeal and new 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 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 repeal and new section may be submitted to Guilda Roman, Rate Analyst, Rate Analysis for Acute Care Services, Texas Health and Human Services Commission, P.O. Box 85200, H400, Austin, Texas 78708; by fax to (512) 491-1998; or by e-mail to guilda.roman@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.
Public Hearing
There will be no public hearing on the proposed repeal and replacement of the reimbursement methodology rule for telemedicine services.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
Statutory Authority
The repeal is 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 repeal 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.
§355.7001.Telemedicine Services Reimbursement.
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 19, 2008.
TRD-200806614
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 1, 2009
For further information, please call: (512) 424-6900
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 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 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.
§355.7001.Telemedicine Services Reimbursement.
(a) Physicians as telemedicine distant site providers, as defined in §354.1430(2) of this title (relating to Definitions), are reimbursed for their Medicaid telemedicine professional services in the same manner as their other professional services in accordance with §355.8085 of this title (relating to Texas Medicaid Reimbursement Methodology (TMRM) for Physicians and Certain Other Practitioners).
(b) Telemedicine patient site locations, as defined in §354.1430(5) of this title, are reimbursed a facility fee determined by the Health and Human Services Commission.
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 19, 2008.
TRD-200806615
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: February 1, 2009
For further information, please call: (512) 424-6900