PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES
CHAPTER 19. NURSING FACILITY REQUIREMENTS FOR LICENSURE AND MEDICAID CERTIFICATION
SUBCHAPTER V. ENFORCEMENT
DIVISION 3. REMEDIES IN MEDICAID-CERTIFIED FACILITIES
The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), an amendment to §19.2146, concerning termination of provider agreement on the basis of the imposition of enforcement actions three times within an accountability period, in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification.
BACKGROUND AND PURPOSE
The purpose of the amendment is to update DADS rules to be consistent with Senate Bill (SB) 1318, 80th Legislature, 2007, which amended Texas Human Resources Code, §32.021(m), to require adoption of criteria under which DADS may waive the requirement to terminate a nursing facility's provider agreement when three Category II or Category III remedies have been imposed within a 24-month accountability period. The Centers for Medicare and Medicaid Services (CMS) imposes Medicaid remedies on dually certified facilities while DADS imposes Medicaid remedies on facilities that are Medicaid-certified only. DADS developed the waiver criteria to assist in achieving reasonable consistency in the remedies applied by DADS and CMS.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §19.2146 states the criteria DADS will use to determine whether it may waive termination of a nursing facility provider agreement. The proposal also updates state agency names to ensure that the rule reflects changes resulting from the consolidation of health and human services agencies in 2004.
FISCAL NOTE
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed amendment is in effect, enforcing or administering the amendment does not have foreseeable implications relating to costs or revenues of state or local governments.
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS
DADS has determined that the proposed amendment will not have an adverse economic effect on small businesses or micro-businesses, because it does not place any new requirements on a nursing facility.
PUBLIC BENEFIT AND COSTS
Barry Waller, DADS Assistant Commissioner for Provider Services, has determined that, for each year of the first five years the amendment is in effect, the public benefit expected as a result of enforcing the amendments is that DADS will have greater flexibility in evaluating a facility to continue a provider agreement. In addition, when DADS chooses to continue a contract under the criteria, an individual residing in a facility will not have to relocate to another facility.
Mr. Waller anticipates that there will not be an economic cost to persons who are required to comply with the amendment. The amendment will not affect a local economy.
TAKINGS IMPACT ASSESSMENT
DADS 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.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Geri Willems at (512) 438-3159 in DADS' Provider Services Section. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-020, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st Street, Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 020" in the subject line.
STATUTORY AUTHORITY
The amendment is proposed 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; 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; and Texas Human Resources Code, §32.021(m), which requires the adoption of rules establishing criteria under which DADS may waive termination of a provider agreement.
The amendment affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §32.021(m) and §161.021.
§19.2146.Termination of Provider Agreement on the Basis of the Imposition of Enforcement Actions Three Times Within an Accountability Period.
(a) If DADS [When the Provider Enrollment
Section of the Texas Department of Human Services (DHS)] determines
that DADS or CMS [DHS or the Health Care Financing
Administration] has imposed a required Category II
or III remedy [remedies] (as defined in
42 Code of Federal Regulations (CFR) [designated on the
chart in 59 Federal Register, 56183]) on a facility three times
within an accountability period, a recommendation is made to terminate
the facility's provider agreement, unless DADS waives termination
after considering the factors described in subsection (e) of this
section [DHS makes an affirmative finding that good cause
exists to waive this requirement to facilitate a change in ownership
to protect residents of a facility].
(b) DADS [DHS] notifies a facility [
the facilities] in writing of its intention
to terminate the facility's provider agreement. Notification occurs within:
(1) three calendar days after [from]
receipt of the recommendation of remedies for a facility [
facilities] found in immediate jeopardy; or
(2) 15 calendar days after [from]
receipt of the recommendation of remedies for a facility [
facilities] not found in immediate jeopardy.
(c) The provider agreement is terminated on the 20th
calendar day after the facility receives notice of DADS' [
DHS's] decision to terminate the provider agreement.
(d) An [The] appeal for this
remedy is the appeal on the issue of noncompliance that led to the
imposition of a Category II or III remedy [enforcement
actions] for the third time within the accountability period.
The appeal [Appeals] for this remedy
follows [follow] the federal procedures in 42
CFR Part [Code of Federal Regulations (CFR)] 498 for
a dually-participating facility [facilities
] or in 42 CFR Part 431 for a facility that is Medicaid-certified only
[Medicaid-only facilities].
(e) DADS may waive termination of a facility's provider agreement when a facility has received a Category II or III remedy three times within an accountability period of 24 consecutive months. DADS may consider one or more of the following to waive termination of a facility's provider agreement:
(1) the history of violations committed by the facility resulting in three Category II or III remedies within an accountability period and the resulting enforcement action compared with the history of violations committed by other facilities that received Category II or III remedies three times within an accountability period and the resulting enforcement action;
(2) the history of ownership of the facility when the Category II or III remedies were imposed; or
(3) the efforts the facility has made to correct the violations that resulted in the imposition of the Category II or IIII remedies.
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 January 8, 2009.
TRD-200900084
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: February 22, 2009
For further information, please call: (512) 438-3734
SUBCHAPTER D. BILLINGS AND PAYMENT
(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 Department of Aging and Disability Services or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), the repeal of §49.43, concerning the expedited payments system (EPS), in Chapter 49, Contracting for Community Care Services.
BACKGROUND AND PURPOSE
The EPS was implemented in the early 1980's to expedite claims for eligible providers delivering personal assistance services. At that time, providers had to wait for up to 21 days to receive reimbursement after submitting a paper request for claims payment. Using the EPS reduced the amount of time for reimbursement by allowing a provider to receive a substantial portion of payment at the beginning of the month after services were provided.
Since the implementation of the Claims Management System (CMS) in 1999, DADS has made several improvements to claims submittal available to providers. For example, providers can now: (1) submit multiple claims per month instead of submitting only one claim per month; (2) create templates to expedite data entry and avoid duplicate data entry; (3) monitor and resubmit claims denied for payment immediately; and (4) submit unlimited supplemental claims per month. Due to these improvements, providers are able to receive payment more expediently, generally within five to seven days of a claim submittal. In addition, the Texas Medicaid and Healthcare Partnership claims systems currently processes provider claims in a timely fashion, eliminating the need for the EPS.
Thus, DADS proposes to repeal the rule containing EPS requirements.
SECTION-BY-SECTION SUMMARY
The repeal of §49.43 deletes the requirements governing the EPS, including provider eligibility requirements, participation requirements, and billing options.
FISCAL NOTE
Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years after the repeal, there are no foreseeable implications relating to costs or revenues of state or local governments.
SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS
DADS has determined that the proposed repeal will have no adverse economic effect on small businesses or micro-businesses, because the CMS is more efficient and is capable of paying a claim after five to seven days after submittal, so the EPS is obsolete and unnecessary.
PUBLIC BENEFIT AND COSTS
Gordon Taylor, DADS Chief Financial Officer, has determined that, for each year of the first five years after the repeal, the public benefit expected as a result of repealing the section is that DADS rule base will reflect current program policy concerning provider reimbursement.
Mr. Taylor anticipates that there will not be an economic cost to persons who are affected by the repeal. The repeal will not affect a local economy.
TAKINGS IMPACT ASSESSMENT
DADS 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.
PUBLIC COMMENT
Questions about the content of this proposal may be directed to Larry North at (512) 438-3922 in DADS' Claims Management Section. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-028, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030 or street address 701 West 51st Street, Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be either (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 028" in the subject line.
STATUTORY AUTHORITY
The repeal is proposed 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.
The repeal affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.
§49.43.Expedited Payments System.
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 January 8, 2009.
TRD-200900085
Kenneth L. Owens
General Counsel
Department of Aging and Disability Services
Earliest possible date of adoption: February 22, 2009
For further information, please call: (512) 438-3734