PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER O. ELECTRONIC VISIT VERIFICATION
The Texas Health and Human Services Commission (HHSC) adopts amendments to §354.4001, concerning Purpose and Authority; and §354.4003, concerning Definitions; the repeal of §354.4005, concerning Applicability; §354.4007, concerning EVV System; §354.4009, concerning Requirements for Claims Submission and Approval; §354.4011, concerning Member Rights and Responsibilities; and §354.4013, concerning Additional Requirements; and new §354.4005, concerning Personal Care Services that Require the Use of EVV; §354.4006, concerning Home Health Care Services that Require the Use of EVV; §354.4007, concerning EVV System; §354.4009, concerning EVV Visit Transaction and EVV Claim; §354.4011, concerning Visit Maintenance; §354.4013, concerning HHSC and MCO Compliance Reviews and Enforcement Actions; §354.4015, concerning EVV Training Requirements; §354.4017, concerning Process to Request Approval of a Proposed EVV Proprietary System and Additional Requirements for a PSO; §354.4019, concerning Access to EVV System and EVV Documentation; §354.4021, concerning Additional Requirements; §354.4023, concerning Sanctions; and §354.4025, concerning Administrative Hearing.
Sections 354.4001, 354.4003, 354.4005, 354.4006, 354.4007, 354.4009, 354.4011, 354.4013, 354.4015, 354.4017, 354.4019, 354.4021, 354.4023, and 354.4025; and the repeals of Sections 354.4005, 354.4007, 354.4009, 354.4011, and 354.4013; are adopted without changes to the proposed text as published in the September 8, 2023, issue of the Texas Register (48 TexReg 4950). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
In accordance with Section 1903(l) of the Social Security Act (42 U.S.C. §1396b(l)), HHSC requires that electronic visit verification (EVV) be used to document the provision of certain personal care services provided through Medicaid. One purpose of the adopted rules is to ensure that HHSC complies with the requirement in Section 1903(l) that EVV be used to document the provision of Medicaid home health care services. Although Section 1903(l) requires the use of EVV for Medicaid home health services to have begun January 1, 2023, the Centers for Medicare & Medicaid Services (CMS) granted HHSC an extension allowing HHSC to implement this requirement by January 1, 2024.
Another purpose of the adopted rules is to codify in rules current policies and procedures related to EVV including training requirements, visit maintenance requirements, compliance reviews, and the process for HHSC to recognize a health care provider's proprietary EVV system as described in Texas Government Code §531.024172(g).
COMMENTS
The 31-day comment period ended October 9, 2023.
During this period, HHSC received a comment regarding the proposed rules from one commenter representing Grace Personal Assistance Services and Vidanta Personal Assistance Services. A summary of the comment relating to the rules and HHSC's response follows.
Comment: The commenter disagrees with the rules and expressed a concern that HHSC is implementing the rules too soon, making it difficult for providers to comply with the rules.
Response: It is not clear why the commenter disagrees with the rules or why providers will not be able to comply with the rules. The only new requirement in the proposed rules is the use of EVV for the home health care services listed in §354.4006 to comply with Section 1903(l) of the Social Security Act. HHSC notified stakeholders of the expansion of EVV to home health care services effective January 1, 2024, through multiple methods prior to the publication of the proposed EVV rules in the Texas Register. HHSC announced the expansion of EVV on the EVV website in October 2022 when CMS granted Texas' request to extend the implementation date. HHSC posted the draft rules for informal comment in January 2023 prior to presentation at the Medical Care Advisory Committee and the HHSC Executive Council meetings in June 2023. In addition, HHSC has a recurring workgroup on the home health care services expansion that has included monthly updates on the status of the rules. Other changes in the proposed rules codify or clarify existing policies and procedures. No changes were made in response to this comment.
STATUTORY AUTHORITY
The amendments and new sections are adopted under 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; Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Government Code, §531.024172, which provides that the Executive Commissioner of HHSC may adopt rules to implement an electronic visit verification system to electronically verify that personal care services or other services identified by HHSC are provided to Medicaid recipients.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 20, 2023.
TRD-202304334
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 1, 2024
Proposal publication date: September 8, 2023
For further information, please call: (737) 867-7813
STATUTORY AUTHORITY
The repeals are adopted under 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; Human Resources Code, §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Government Code, §531.024172, which provides that the Executive Commissioner of HHSC may adopt rules to implement an electronic visit verification system to electronically verify that personal care services or other services identified by HHSC are provided to Medicaid recipients.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on November 20, 2023.
TRD-202304335
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 1, 2024
Proposal publication date: September 8, 2023
For further information, please call: (737) 867-7813