PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER R. TELECOMMUNICATIONS IN MANAGED CARE SERVICE COORDINATION AND ASSESSMENTS
1 TAC §§353.1502, 353.1504, 353.1506
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), proposes amendments to §353.1502, concerning Definitions; §353.1504, concerning Use of Telecommunications in Service Coordination and Service Management; and §353.1506, concerning Additional Requirements for Assessments and Service Management in STAR Health.
BACKGROUND AND PURPOSE
The proposal allows a STAR Health managed care organization (MCO) to conduct assessments and provide service coordination services using telecommunications or information technology when it is clinically effective and cost-effective to do so.
HHSC is proposing amended rules in Chapter 353 that will reflect the STAR Health programmatic changes and incorporate service coordination levels, replace the term "service management" with "service coordination," and apply House Bill 4, 87th Legislature, Regular Session, 2021 telecommunications allowances to the new service coordination levels.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §353.1502: (1) replaces the term "Interactive" with the term "Synchronous interactive" in the definitions of "Audio-only" and "Audio-visual;" (2) removes the definitions for "service management" and "service manager;" (3) renumbers the remaining paragraphs accordingly; and (4) updates language for better readability.
The proposed amendment to §353.1504: (1) removes "and Service Management" from the title of the rule; (2) replaces references to "service management" with "service coordination"; (3) replaces references to "service manager" with "service coordinator;" (4) adds the current contract requirement for the STAR Health MCO to ensure all members receive at least one in-person service coordination visit per year; (5) adds a requirement that allows HHSC to issue direction during a declared state of disaster to the STAR Health MCO regarding whether service coordination that is required to be conducted using face-to-face communication may be conducted through audio-only communication; (6) updates language for better readability; and (7) makes minor edits to formatting.
The proposed amendment to §353.1506: (1) replaces the term "Management" with "Coordination" in the title of the rule; (2) replaces the term "service management" with "service coordination;" and (3) updates language for better readability.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;
(2) implementation of the proposed rules will not affect the number of HHSC employee positions;
(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;
(4) the proposed rules will not affect fees paid to HHSC;
(5) the proposed rules will not create a new regulation;
(6) the proposed rules will expand existing regulations;
(7) the proposed rules will not change the number of individuals subject to the rules; and
(8) the proposed rules will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.
The rules only apply to Medicaid MCOs, and no Texas Medicaid MCO qualifies as a small business, micro-business, or rural community.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and do not impose a cost on regulated persons.
PUBLIC BENEFIT AND COSTS
Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public benefit will be STAR Health members will have clear options to receive assessments and service coordination visits via telecommunications or information technology.
Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there are no requirements to alter current business practices, and there are no new fees or costs imposed on those required to comply.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the 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
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to MCSRulesPublicComments@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R061" in the subject line.
STATUTORY AUTHORITY
The amendments are authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration in Texas and to establish methods of administration and adopt necessary rules for the proper and efficient operation of the medical assistance program.
The amendments implement Texas Government Code §531.02161.
§353.1502.Definitions.
The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.
(1) Assessments--Managed care organization (MCO) evaluation of a member's medical and functional service needs, including community-based long-term services and supports, behavioral health services, therapies (e.g., physical, occupational, speech), and nursing services. This includes the MCO's completion of program-specific instruments and forms.
(2) Audio-only--Synchronous interactive [An
interactive], two-way audio communication that uses only sound
and that meets the privacy requirements of the Health Insurance Portability
and Accountability Act. Audio-only includes the use of telephonic
communication. Audio-only does not include face-to-face communication.
(3) Audio-visual--Synchronous interactive [Interactive], two-way audio and video communication that conforms
to privacy requirements under the Health Insurance Portability and
Accountability Act. Audio-visual does not include audio-only or in-person communication.
(4) C.F.R.--Code of Federal Regulations.
(5) Change in condition--A significant change in a member's health, caregiver support, or functional status that will not normally resolve itself without further intervention and requires review of and revision to the member's current service plan or individual service plan.
(6) Community-based long-term services and supports
(LTSS)--Services provided to a qualified member in the member's [their] home or another community-based setting necessary to
allow the member to remain in the most integrated setting possible.
Community-based LTSS includes Medicaid state plan services available
to all members, as well as services available to members who qualify
for the Home and Community Based Services (HCBS) Program or Medicaid
1915(c) waiver programs, including the STAR+PLUS Home and Community-Based
Services (HCBS) Program and the Medically Dependent Children Program.
Community-based LTSS is available to both HCBS -eligible and non-HCBS
eligible members. Community-based LTSS in Medicaid managed care varies
by program model.
(7) Community First Choice (CFC)--A Medicaid state plan benefit described in 1 TAC Chapter 354, Subchapter A, Division 27 (relating to Community First Choice).
(8) Covered services--Unless a service or item is specifically excluded under the terms of the state plan, a federal waiver, a managed care services contract, or an amendment to any of these, the phrase "covered services" means all health care, long term services and supports, nonemergency medical transportation services, or dental services or items that the MCO must arrange to provide and pay for on a member's behalf under the terms of the contract executed between the MCO and the Texas Health and Human Services Commission, including:
(A) all services or items comprising "medical assistance" as defined in Human Resources Code §32.003; and
(B) all value-added services under such contract.
(9) Declared state of disaster--A State of Disaster declared by the governor in accordance with Texas Government Code §418.014.
(10) Face-to-face--In-person or audio-visual communication that meets the requirements of the Health Insurance Portability and Accountability Act. Face-to-face does not include audio-only communication.
(11) Functionally necessary covered services--Community-based long-term services and supports provided to assist members with activities of daily living based on a functional assessment of the member's activities of daily living and a determination of the amount of supplemental supports necessary for the member to remain independent or in the most integrated setting.
(12) Healthcare service plan--An individualized plan developed with and for a member with special healthcare needs in the STAR Health program. The healthcare service plan includes the following:
(A) the member's history;
(B) a summary of current medical and social needs and concerns;
(C) short and long-term needs and goals; and
(D) a treatment plan to address the member's physical, psychological, and emotional healthcare problems and needs, including:
(i) a list of required services;
(ii) the frequency of each service;
(iii) a description of who will provide each service; and
(iv) for a member in the Early Childhood Intervention program, the individual family service plan.
(13) HHSC--The Texas Health and Human Services Commission or its designee. HHSC is the single state agency charged with administration and oversight of the Texas Medicaid program, including Medicaid managed care. HHSC's authority is established in Texas Government Code Chapter 531.
(14) HIPAA--Health Insurance Portability and Accountability Act. Collectively, the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. §§1320d et seq., and regulations adopted under that act, as modified by the Health Information Technology for Economic and Clinical Health Act (HITECH) (P.L. 111-105), and regulations adopted under that act at 45 CFR Parts 160 and 164.
(15) Individual service plan (ISP)--An individualized and person-centered plan in which a member enrolled in the STAR Kids, STAR Health or STAR+PLUS HCBS program operated by an MCO, with assistance as needed, identifies and documents the member's preferences, strengths, and health and wellness needs in order to develop short term objectives and action steps to ensure personal outcomes are achieved within the most integrated setting by using identified supports and services. The ISP is supported by the results of a member's program-specific assessment and must meet the requirements of 42 C.F.R. §441.301.
(16) Information technology--Includes text, email, fax, secure transmission of clinical information, and HIPAA-compliant telecommunication tools such as health plan websites where a member or the member's legally authorized representative can access the member's healthcare information, including service plans.
(17) In-person (or in person)--Within the physical presence of another person. In-person or in person does not include audio-visual or audio-only communication.
(18) Legally authorized representative (LAR)--A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, and may, depending on the circumstances, include a parent, guardian, or managing conservator of a minor, or the guardian of an adult, or a representative designated pursuant to 42 C.F.R. §435.923.
(19) Managed care organization (MCO)--An entity licensed and approved by the Texas Department of Insurance with which HHSC contracts to provide Medicaid services and that complies with Chapter 353 of this title (relating to Medicaid Managed Care).
(20) Medical consenter--The person who may consent to medical care for a member under Texas Family Code Chapter 266.
(21) Medically Dependent Children Program (MDCP)--A 1915(c) waiver program that provides community-based services to assist Medicaid beneficiaries under age 21 to live in the community and avoid institutionalization.
(22) Medically necessary--Has the meaning as defined in §353.2 of this chapter (relating to Definitions).
(23) Medical Necessity Level of Care (MN/LOC)--An assessment instrument used to determine medical necessity for a nursing facility as defined by 26 TAC §554.2601. An MN/LOC is required for STAR+PLUS HCBS Program and CFC eligibility.
(24) Member--A person who is eligible for benefits under Medicaid, is in a Medicaid eligibility category included in the Medicaid managed care program, and is enrolled in a Medicaid MCO.
(25) Minimum data set (MDS)--Has the meaning as defined in 26 TAC §554.101.
(26) Nursing facility--An entity that provides organized and structured nursing care and services, and is subject to licensure under Texas Health and Safety Code, Chapter 242.
(27) Nursing facility level of care--The determination that the level of care required to adequately serve a member is at or above the level of care provided by a nursing facility.
(28) Person-centered care--An approach to care that
focuses on members as individuals and supports caregivers working
most closely with members [them]. It involves
a continual process of listening, testing new approaches, and changing
routines and organizational approaches in an effort to individualize
and de-institutionalize the care environment.
(29) Resident Assessment Instrument (RAI)--Has the meaning as defined in 26 TAC §554.101.
(30) Resource Utilization Group (RUG)--A categorization method, consisting of multiple categories based on the minimum data set core elements in a resident assessment instrument, that is used to determine a recipient's service and care requirements for a nursing facility. A RUG determination is necessary for MDCP and the STAR+PLUS HCBS Program eligibility because these programs require a nursing facility level of care.
(31) Service coordination--A specialized care management service that is performed or arranged by the MCO to identify needs, including physical health, mental health services and long term support services, facilitate development of a service plan or individualized service plan to address those identified needs, and coordination of services among the member's primary care provider, specialty providers, and non-medical providers to ensure timely access to covered services, non-capitated services, and community services.
(32) Service coordinator--The person with primary responsibility for providing service coordination to Medicaid managed care members.
[(33) Service management--A clinical
service performed by the STAR Health MCO for members with special
health care needs and other members in the STAR Health program when
appropriate to facilitate development of a healthcare service plan
and coordination of clinical services among a member's primary care
provider and specialty providers to ensure members have access to,
and appropriately utilize, medically necessary covered services.]
[(34) Service manager--The person with primary responsibility for providing service management to STAR Health members.]
(33) [(35)] Service plan (SP)--An
individualized and person-centered plan in which a member, with assistance
as needed, identifies and documents the member's [his
or her] preferences, strengths, and needs in order to develop
short-term objectives and action steps to ensure personal outcomes
are achieved within the most integrated setting by using identified
supports and services. The service plan is supported by the results
of the member's program-specific assessment. In STAR+PLUS, a service
plan applies to members who are not enrolled in the STAR+PLUS HCBS Program.
(34) [(36)] STAR+PLUS Home and
Community-Based Services (HCBS) Program--The program that provides
person-centered care services that are delivered in the home or in
a community setting, as authorized through a federal waiver under §1115
of the Social Security Act, to qualified Medicaid-eligible clients
who are age 21 or older, as cost-effective alternatives to institutional
care in nursing facilities.
(35) [(37)] Telecommunications--An
exchange of information by electronic and electrical means.
(36) [(38)] Telephonic--Audio-only
communication using a telephone. Telephonic communication does not
include audio-visual communication.
(37) [(39)] Verbal consent--The
spoken agreement of a member, a member's legally authorized representative,
or a member's medical consenter.
§353.1504.Use of Telecommunications in
Service Coordination [and Service Management].
(a) STAR+PLUS.
(1) Managed care organizations (MCOs) must ensure all level 1 and 2 members receive at least one in-person service coordination visit per year.
(2) An in-person assessment satisfies the annual in-person service coordination visit requirement for level 1 and 2 members.
(3) MCOs may offer level 1 and 2 members in STAR+PLUS a choice of audio-visual communication for service coordination in place of an in-person visit if no assessment is occurring.
(A) When an MCO conducts service coordination using audio-visual communication, verbal consent must be obtained and documented, and a HIPAA-compliant audio-visual communication product must be used.
(B) If verbal consent for audio-visual communication is not received, the MCO must use in-person communication.
(C) The MCO must inform members who utilize audio-visual communication for service coordination that the member's services will be subject to the following:
(i) the [The] MCO must monitor
services for fraud, waste, and abuse; [.]
(ii) the [The] MCO must determine
whether additional social services or supports are needed; and [.]
(iii) the [The] MCO must ensure
that verbal consent to use telecommunications is documented in writing.
(4) During a declared state of disaster, HHSC may issue direction to MCOs regarding whether service coordination required to be conducted using face-to-face communication may be conducted through audio-only communication.
(5) MCOs may offer level 3 members in STAR+PLUS a choice of in-person, audio-visual, or audio-only communication for service coordination.
(6) Nursing facility residents must have at least one in-person service coordination visit per year for service planning purposes.
(7) STAR+PLUS MCOs must conduct nursing facility discharge planning visits in-person, including when a member is transitioning to the STAR+PLUS HCBS Program. The in-person nursing facility discharge planning visit may satisfy the requirement for the in-person STAR+PLUS HCBS initial assessment when a nursing facility member is transitioning to the STAR+PLUS HCBS Program. The requirement to conduct the in-person STAR+PLUS HCBS initial assessment is satisfied during the in-person nursing facility discharge planning visit if the MCO:
(A) uses the member's valid Minimum Data Set (MDS) assessment to gather the information necessary to complete the STAR+PLUS HCBS individual service plan; or
(B) conducts a Medical Necessity and Level of Care assessment if the member does not have a valid MDS or in lieu of the member's valid MDS to gather the information necessary to complete the STAR+PLUS HCBS individual service plan.
(8) MCOs must provide service coordination in accordance with §353.609 of this chapter (relating to Service Coordination).
(b) STAR Kids.
(1) MCOs must ensure all members receive at least one in-person service coordination visit per year.
(2) An in-person assessment using the HHSC-developed STAR Kids assessment tool satisfies the annual in-person service coordination visit requirement.
(3) MCOs may offer STAR Kids members a choice of audio-visual communication for service coordination in place of in-person service coordination visits if no assessment is occurring.
(A) When an MCO conducts service coordination using audio-visual communication, verbal consent must be obtained and documented, and a HIPAA-compliant audio-visual communication product must be used.
(B) If verbal consent for audio-visual communication is not received, the MCO must use in-person communication.
(C) The MCO must inform members who utilize audio-visual communication for service coordination that the member's services will be subject to the following:
(i) the [The] MCO must monitor
services for fraud, waste, and abuse; [.]
(ii) the [The] MCO must determine
whether additional social services or supports are needed; and
[.]
(iii) the [The] MCO must ensure
that verbal consent to use telecommunications is documented in writing.
(4) During a declared state of disaster, HHSC may issue direction to MCOs regarding whether service coordination required to be conducted using face-to-face communication may be conducted through audio-only communication.
(5) STAR Kids MCOs must provide service coordination in accordance with §353.1205 of this chapter (relating to Service Coordination).
(c) STAR Health.
(1) The MCO must ensure all members receive at least one in-person service coordination visit per year.
(2) [(1)] The MCO must ensure
that the service coordinator [manager] for a
Medically Dependent Children Program member continues to make required
contacts with the member and the member's [their]
medical consenter to ensure the member's needs are met.
(3) [(2)] The MCO may offer members
or the member's [their] medical consenter a
choice of using audio-visual or telephonic communication to conduct
a service coordination [management] visit in
place of conducting the visit in-person if an assessment is not conducted
during the visit.
(A) When an MCO conducts service coordination [management] using audio-visual communication, verbal consent
must be obtained and documented, and a HIPAA-compliant audio-visual
communication product must be used.
(B) The MCO must inform members who utilize audio-visual
or telephonic communication for service coordination [management
] that the member's services will be subject to the following:
(i) the [The] MCO must monitor
services for fraud, waste, and abuse; [.]
(ii) the [The] MCO must determine
whether additional social services or supports are needed; and [.]
(iii) the [The] MCO must ensure
that verbal consent to use telecommunications is documented in writing.
(C) During a declared state of disaster, HHSC may issue direction to the MCO regarding whether service coordination required to be conducted using face-to-face communication may be conducted through audio-only communication.
§353.1506.Additional Requirements for Assessments and Service Coordination [Management] in STAR Health.
(a) Information technology, including HIPAA-compliant text or email, may supplement audio-visual or in-person assessments, but may not be used as the sole means of conducting an assessment or service coordination [management] visit.
(b) When a managed care organization (MCO) conducts
an assessment or service coordination [management]
visit using telecommunications, the MCO must:
(1) monitor the health care services provided to the recipient for evidence of fraud, waste, and abuse;
(2) determine whether additional social services or supports are needed;
(3) document verbal consent to use telecommunications; and
(4) adhere to HIPAA, including the use of a HIPAA-compliant audio-visual communication product.
(c) HHSC may, on a case-by-case basis, require an MCO
to discontinue telecommunications for the delivery of service coordination
[management] or assessments if HHSC determines that
the discontinuation is in the best interest of the member.
(d) An MCO may conduct additional in-person visits with members, as determined by the MCO.
(e) MCOs must have a means to document verbal consent
to the use of telecommunications for the delivery of assessments or
service coordination [management].
(f) Audio-visual may not be used if an initial or annual assessment for the Medically Dependent Children Program or functionally necessary covered services is being conducted, unless HHSC issues direction allowing audio-visual assessments during a declared state of disaster.
(g) MCOs may not leave blank fields in assessment tools, including tools to evaluate home and community-based service needs, nursing needs, and functional needs. Audio-visual is not an appropriate means of assessing a member if it results in blank fields.
(h) MCOs must explain to the member or medical consenter what verbal consent means, and what the member or medical consenter is consenting to.
(1) The verbal consent for an audio-visual in place of an in-person visit applies only to that visit.
(2) Verbal consent must be obtained for each audio-visual service coordination visit conducted in place of an in-person visit.
(i) When telephonic screenings or service coordination
[management] visits are authorized by contract,
these visits may continue to be provided by telephonic communication.
(j) An MCO must honor a member's request to receive
service coordination [management] or assessment
in person. Only when HHSC issues direction to MCOs during a declared
state of disaster that service coordination [management]
or assessments must be conducted using audio-visual or audio-only
communication due to the specific nature of the [a
governor declared] disaster, may an MCO deny a member's request
for in-person contact.
(k) MCOs may use [their] discretion on how
to document verbal consent in a HIPAA-compliant manner. However, MCOs
must be able to produce the documentation of verbal consent for audit
and compliance purposes.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 3, 2024.
TRD-202405809
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: January 19, 2025
For further information, please call: (512) 438-2910
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 1. MEDICAID PROCEDURES FOR PROVIDERS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §354.1006, concerning Prohibition of Provider Discrimination Based on Immunization Status.
BACKGROUND AND PURPOSE
The proposal is necessary to implement Texas Government Code §531.02119, added by House Bill 44, 88th Legislature, Regular Session, 2023, which requires HHSC to adopt rules necessary to prohibit Medicaid and Children's Health Insurance Program (CHIP) providers from discriminating against Medicaid recipients or CHIP members by refusing to provide health care services based solely on immunization status.
Texas Government Code §531.02119 outlines the requirements for the prohibition of discrimination based on immunization status, exceptions to this prohibition, requires HHSC or its designee to withhold payment from providers that violate the requirements until HHSC finds the provider is in compliance, and requires HHSC to establish administrative and judicial reviews for providers who are alleged to be in violation.
SECTION-BY-SECTION SUMMARY
Proposed new §354.1006 prohibits Medicaid provider discrimination of Medicaid recipients based solely on the recipient's vaccination status. Specifically, the proposed rule (1) contains the express prohibition of discrimination based on vaccination status dictated by Texas Government Code §531.02119; (2) outlines the types of requests Medicaid providers must accept for Medicaid recipients who are seeking to be exempt from a provider's vaccination requirement policy; (3) contains a list of providers exempt from these requirements; (4) outlines when HHSC will withhold payment from a provider found to be noncompliant and when HHSC may not withhold payment; and (5) establishes the right of a provider to seek administrative and judicial review of an HHSC decision to withhold payment.
FISCAL NOTE
Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, there is potential for a decrease in costs to state government as a result of enforcing and administering the rule as proposed, since HHSC will not pay for any health care services provided by a Medicaid provider who refuses to provide health care services because of a recipient's refusal or failure to obtain a vaccination or immunization. HHSC is unable to determine the cost savings because it is unknown how many providers will not comply with the proposed rule and how many health care services will not be paid for by HHSC.
Trey Wood has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rule will be in effect:
(1) the proposed rule will not create or eliminate a government program;
(2) implementation of the proposed rule will not affect the number of HHSC employee positions;
(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;
(4) the proposed rule will not affect fees paid to HHSC;
(5) the proposed rule will create a new regulation;
(6) the proposed rule will not expand, limit, or repeal existing regulations.
(7) the proposed rule will not change the number of individuals subject to the rule; and
(8) the proposed rule will not affect the state's economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. The proposed rule prohibits Medicaid providers from refusing health care services because a member refuses or fails to obtain a vaccination or immunization and provides a process for administrative and judicial review of an alleged violation of the provision. Although a provider may continue to refuse services, HHSC will not pay the provider for any healthcare services until the provider complies with the proposed rule.
LOCAL EMPLOYMENT IMPACT
The proposed rule will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to the rule because the rule does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.
PUBLIC BENEFIT AND COSTS
Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the section is in effect the public benefit will be that Medicaid recipients may experience less discrimination by providers based on the recipient's vaccination status.
Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule because a Medicaid provider may choose to not provide services to a member based on vaccination status. The proposed rule provides a process for administrative and judicial review of an alleged violation of the provision, and the provider can still choose not to comply with the proposed rule. HHSC will not pay a provider for services only when HHSC determines the provider has violated the proposed rule.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the 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
Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to mcsrulespubliccomments@hhs.texas.gov.
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If the last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R058" in the subject line.
STATUTORY AUTHORITY
The new section is authorized by Texas Government Code §531.02119, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to prohibit a Medicaid provider from refusing to provide health care services to a Medicaid recipient based solely on the recipient's immunization status; Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.033, which directs the Executive Commissioner of HHSC to adopt rules as necessary to carry out the commission's duties; and Human Resources Code §32.021 and Texas Government Code §531.021(a), which authorize HHSC to administer the federal medical assistance (Medicaid) program.
The new section affects Texas Government Code §§531.02119, 531.0055, 531.033, and 531.021(a) and Human Resources Code §32.021.
§354.1006.Prohibition of Provider Discrimination Based on Immunization Status.
(a) Pursuant to Texas Government Code §531.02119, a Medicaid provider may not refuse to provide health care services to a Medicaid recipient based solely on the recipient's refusal or failure to obtain a vaccine or immunization for a particular infectious or communicable disease.
(b) Notwithstanding subsection (a) of this section, a provider is not in violation of this section if the provider:
(1) adopts a policy requiring some or all the provider's patients, including patients who are Medicaid recipients to be vaccinated or immunized against a particular infection or communicable disease to receive health care services from the provider; and
(2) provides an exemption to the policy described in paragraph (1) of this subsection and accepts an oral or written request from the Medicaid recipient or legally authorized representative, as defined by Texas Health and Safety Code §241.151, for an exemption from each required vaccination or immunization based on:
(A) a reason of conscience, including a sincerely held religious belief, observance, or practice, that is incompatible with the administration of the vaccination or immunization; or
(B) a recognized medical condition for which the vaccination or immunization is contraindicated.
(c) This section does not apply to a provider who is a specialist in:
(1) oncology; or
(2) organ transplant services.
(d) HHSC or its designee withholds payments to any Medicaid participating provider only if HHSC determines the provider is in violation of this section.
(1) HHSC withholds payments for services to the provider until HHSC determines the provider corrected the circumstances resulting in the vendor hold.
(2) A provider has the right to appeal an HHSC vendor hold as provided by Chapter 357, Subchapter I of this title (relating to Hearings Under the Administrative Procedure Act).
(3) If the final decision in the administrative review is adverse to the appellant, the appellant may obtain a judicial review by filing for review with a district court in Travis County not later than the 30th day after the date of the notice of the final decision as provided under Texas Government Code Chapter 2001.
(e) Subsection (d) of this section applies only to an individual provider. HHSC or its designee may not refuse to reimburse a provider who did not violate this section based on the provider's membership in a provider group or medical organization with an individual provider who violated this section.
The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.
Filed with the Office of the Secretary of State on December 3, 2024.
TRD-202405800
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: January 19, 2025
For further information, please call: (512) 438-2910