1 TAC §353.2, §353.4
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.2, concerning Definitions; and §353.4, concerning Managed Care Organization Requirements Concerning Out-of-Network
Providers.
BACKGROUND AND
PURPOSE
The purpose of the proposed amendment to §353.4 is to require Medicaid health care managed care organizations (MCOs) to reimburse
an out-of-network physician for providing Medicaid telemedicine medical
services to a child in a primary or secondary school-based setting
without prior authorization, even if the physician is not the child's
primary care provider. This requirement is in accordance with Texas
Government Code §531.0217(c-4) and is currently implemented through
contracts between health care MCOs and HHSC. Texas Government Code §531.0217(c-4)
was added by House Bill 1878, 84th Legislature, Regular Session, 2015,
and amended by Senate Bill 670, 86th Legislature, Regular Session,
2019.
The proposed amendment to §353.2 adds definitions of "nursing
facility," "nursing facility add-on services," "nursing facility services,"
and "nursing facility unit rate." The proposed amendment also removes
a definition not used in the
chapter.
SECTION-BY-SECTION
SUMMARY
The proposed amendment to §353.2 adds the definitions for
"Nursing facility," "Nursing facility add-on services," "Nursing facility
services," and "Nursing facility unit rate" to provide definitions
of terms used in §353.4 and to align the definitions with language
in managed care contracts. The proposed amendment removes the definition
for "Main dental home provider" because this term is not used in the
chapter.
The proposed amendment to §353.4 adds paragraph (3) to subsection
(b) to include requirements for health care MCOs to reimburse out-of-network
physicians for delivering a telemedicine medical service to a child
in a primary or secondary school-based setting, even if the physician
is not the child's primary care provider. The proposed amendment to
add paragraph (3) to subsection (b) implements Texas Government Code §531.0217(c-4)
and further aligns rule language with language in managed care contracts.
The proposed amendment to §353.4 reformats paragraph (1) of
subsection (f) so that subparagraph (A) provides out-of-network nursing
facilities that are located within the MCO's service area must be
reimbursed at or above 95 percent of the nursing facility unit rate
and subparagraph (B) provides out-of-network nursing facilities that
are located outside of the MCO's service area must be reimbursed at
or above 100 percent of the nursing facility unit rate. The proposed
amendment also removes existing language in subparagraph (B) from
paragraph (1) of subsection (f) as that language pertains to the definition
of nursing facility unit rates, which is now defined in paragraph
(77) of
§353.2.
The proposed amendments to §353.2 and §353.4 also reformat
the rules as necessary and make minor editorial
changes.
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.
MCOs are currently contractually required to reimburse an out-of-network
physician providing school-based telemedicine medical services. Therefore,
HHSC will not be required to adjust the MCO capitation
payment.
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
rule;
(6) the proposed rules will expand existing
rules;
(7) the proposed rules will not change the number of individuals
subject to the rule(s);
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
to comply with the proposed rules. 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 do not impose a cost on regulated persons and are
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 rules are in effect, the public
benefit will be more clarity about what is required of health care
MCOs regarding reimbursement for out-of-network physicians who provide
telemedicine medical services in school-based
settings.
Trey Wood has also determined that for the first five years the
rules are in effect, there are no expected economic costs for those
required to comply because there are no requirements to alter current
business practices and there are no new fees or costs imposed on a
health care
MCO.
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 HHSRulesCoordinationOffice@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 23R038" 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
authorizes the Executive Commissioner of HHSC to adopt rules as necessary
to carry out the commission's duties; Human Resources Code §32.021
and Texas Government Code §531.021(a), which authorize HHSC to
administer the federal medical assistance (Medicaid) program; and
Texas Government Code §533.002, which authorizes HHSC to implement
the Medicaid managed care
program.
§353.2.Definitions.
The following words and terms, when used in this chapter, have
the following meanings, unless the context clearly indicates
otherwise.
(1)
Action--
(A)
An action is defined
as:
(i)
the denial or limited authorization of a requested
Medicaid service, including the type or level of
service;
(ii)
the reduction, suspension, or termination of a
previously authorized
service;
(iii)
the failure to provide services in a timely manner;
(iv)
the denial in whole or in part of payment for
a service;
or
(v)
the failure of a managed care organization (MCO)
to act within the timeframes set forth by the Texas Health and Human
Services Commission (HHSC) and state and federal
law.
(B)
"Action" does not include expiration of a time-limited
service.
(2)
Acute care--Preventive care, primary care, and
other medical or behavioral health care provided by the provider or
under the direction of a provider for a condition having a relatively
short
duration.
(3)
Acute care hospital--A hospital that provides acute
care
services.
(4)
Adoption Assistance Program--The program administered
by DFPS in accordance with 40 TAC Chapter 700, Subchapter H (relating
to Adoption Assistance
Program).
(5)
Agreement or Contract--The formal, written, and
legally enforceable contract and amendments thereto between HHSC and
an
MCO.
(6)
Allowable revenue--All managed care revenue received
by the MCO pursuant to the contract during the contract period, including
retroactive adjustments made by HHSC. This would include any revenue
earned on Medicaid managed care funds such as investment income, earned
interest, or third party administrator earnings from services to delegated
networks.
(7)
Appeal--The formal process by which a member or
his or her representative requests a review of the MCO's
action.
(8)
Applicant Provider--A physician or other health
care provider applying for expedited credentialing as defined in Texas
Government Code
§533.0064.
(9)
Behavioral health service--A covered service for
the treatment of mental, emotional, or substance use
disorders.
(10)
Capitated service--A benefit available to members
under the Texas Medicaid program for which an MCO is responsible for
payment.
(11)
Capitation rate--A fixed predetermined fee paid
by HHSC to the MCO each month, in accordance with the contract, for
each enrolled member in exchange for which the MCO arranges for or
provides a defined set of covered services to the member, regardless
of the amount of covered services used by the enrolled
member.
(12)
CFR--Code of Federal
Regulations.
(13)
Children's Medicaid Dental Services--The dental
services provided through a dental MCO to a client birth through age
20.
(14)
Clean claim--A claim submitted by a physician
or provider for health care services rendered to a member, with the
data necessary for the MCO or subcontracted claims processor to adjudicate
and accurately report the claim. A clean claim must meet all requirements
for accurate and complete data as further defined under the terms
of the contract executed between the MCO and
HHSC.
(15)
Client--Any Medicaid-eligible
recipient.
(16)
CMS--The Centers for Medicare & Medicaid Services,
which is the federal agency responsible for administering Medicare
and overseeing state administration of
Medicaid.
(17)
Complainant--A member, or a treating provider
or other individual designated to act on behalf of the member, who
files a
complaint.
(18)
Complaint--Any dissatisfaction expressed by a
complainant, orally or in writing, to the MCO about any matter related
to the MCO other than an action. Subjects for complaints may
include:
(A)
the quality of care of services
provided;
(B)
aspects of interpersonal relationships such as
rudeness of a provider or employee;
and
(C)
failure to respect the member's
rights.
(19)
Consumer Directed Services (CDS) option--A service
delivery option (also known as self-directed model with service budget)
in which an individual or legally authorized representative employs
and retains service providers and directs the delivery of certain
program
services.
(20)
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, 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 HHSC,
including:
(A)
all services or items comprising "medical assistance"
as defined in §32.003 of the Human Resources Code;
and
(B)
all value-added services under such
contract.
(21)
Credentialing--The process through which an MCO
collects, assesses, and validates qualifications and other relevant
information pertaining to a Medicaid enrolled health care provider
to determine whether the provider may be contracted to deliver covered
services as part of the network of the managed care
organization.
(22)
Cultural competency--The ability of individuals
and systems to provide services effectively to people of various disabilities,
cultures, races, ethnic backgrounds, and religions in a manner that
recognizes, values, affirms, and respects the worth of the individuals
and protects and preserves their
dignity.
(23)
Day--A calendar day, unless specified
otherwise.
(24)
Default enrollment--The process established by
HHSC to assign a Medicaid managed care enrollee to an MCO when the
enrollee has not selected an
MCO.
(25)
Dental contractor--A dental MCO that is under
contract with HHSC for the delivery of dental
services.
(26)
Dental home--A provider who has contracted with
a dental MCO to serve as a dental home to a member and who is responsible
for providing routine preventive, diagnostic, urgent, therapeutic,
initial, and primary care to patients, maintaining the continuity
of patient care, and initiating referral for care. Provider types
that can serve as dental homes are federally qualified health centers
and individuals who are general dentists or pediatric
dentists.
(27)
Dental managed care organization (dental MCO)--A
dental indemnity insurance provider or dental health maintenance organization
licensed or approved by the Texas Department of
Insurance.
(28)
Dental service--The routine preventive, diagnostic,
urgent, therapeutic, initial, and primary care provided to a member
and included within the scope of HHSC's agreement with a dental contractor.
For purposes of this chapter, "dental service" does not include dental
devices for craniofacial anomalies; treatment rendered in a hospital,
urgent care center, or ambulatory surgical center setting for craniofacial
anomalies; or emergency services provided in a hospital, urgent care
center, or ambulatory surgical center setting involving dental trauma.
These types of services are treated as health care services in this
chapter.
(29)
DFPS--The Texas Department of Family and Protective
Services.
(30)
Disability--A physical or mental impairment that
substantially limits one or more of an individual's major life activities,
such as caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, socializing, or
working.
(31)
Disproportionate Share Hospital (DSH)--A hospital
that serves a higher than average number of Medicaid and other low-income
patients and receives additional reimbursement from the
State.
(32)
Dual eligible--A Medicaid recipient who is also
eligible for
Medicare.
(33)
Elective enrollment--Selection of a primary care
provider (PCP) and MCO by a client during the enrollment period established
by
HHSC.
(34)
Emergency behavioral health condition--Any condition,
without regard to the nature or cause of the condition, that in the
opinion of a prudent layperson possessing an average knowledge of
health and
medicine:
(A)
requires immediate intervention and/or medical
attention without which the client would present an immediate danger
to themselves or others;
or
(B)
renders the client incapable of controlling, knowing,
or understanding the consequences of his or her
actions.
(35)
Emergency medical condition--A medical condition
manifesting itself by acute symptoms of recent onset and sufficient
severity (including severe pain), such that a prudent layperson, who
possesses an average knowledge of health and medicine, could reasonably
expect the absence of immediate medical care to result
in:
(A)
placing the patient's health in serious
jeopardy;
(B)
serious impairment to bodily
functions;
(C)
serious dysfunction of any bodily organ or
part;
(D)
serious disfigurement;
or
(E)
serious jeopardy to the health of a pregnant woman
or her unborn
child.
(36)
Emergency service--A covered inpatient and outpatient
service, furnished by a network provider or out-of-network provider
that is qualified to furnish such service, that is needed to evaluate
or stabilize an emergency medical condition and/or an emergency behavioral
health condition. For health care MCOs, the term "emergency service"
includes post-stabilization care
services.
(37)
Encounter--A covered service or group of covered
services delivered by a provider to a member during a visit between
the member and provider. This also includes value-added
services.
(38)
Enrollment--The process by which an individual
determined to be eligible for Medicaid is enrolled in a Medicaid MCO
serving the service area in which the individual
resides.
(39)
EPSDT--The federally mandated Early and Periodic
Screening, Diagnosis, and Treatment program defined in 25 TAC Chapter
33 (relating to Early and Periodic Screening, Diagnosis, and Treatment).
The State of Texas has adopted the name Texas Health Steps (THSteps)
for its EPSDT
program.
(40)
EPSDT-CCP--The Early and Periodic Screening, Diagnosis,
and Treatment-Comprehensive Care Program described in Chapter 363
of this title (relating to Texas Health Steps Comprehensive Care Program).
(41)
Exclusive provider benefit plan (EPBP)--An MCO
that complies with 28 TAC §§3.9201 - 3.9212, relating to
the Texas Department of Insurance's requirements for EPBPs, and contracts
with HHSC to provide Medicaid
coverage.
(42)
Expedited Credentialing--The process under Texas
Government Code §533.0064 in which an MCO allows an applicant
provider to provide Medicaid services to members on a provisional
basis pending completion of the credentialing
process.
(43)
Experience rebate--The portion of the MCO's net
income before taxes that is returned to the State in accordance with
the MCO's contract with
HHSC.
(44)
Fair hearing--The process adopted and implemented
by HHSC in Chapter 357, Subchapter A of this title (relating to Uniform
Fair Hearing Rules) in compliance with federal regulations and state
rules relating to Medicaid fair
hearings.
(45)
Federal Poverty Level (FPL)--The household income
guidelines issued annually and published in the Federal Register by the United States Department of Health
and Human Services under the authority of 42 U.S.C. §9902(2)
and as in effect for the applicable budget period determined in accordance
with 42 C.F.R. §435.603(h). HHSC uses the FPL to determine an
individual's eligibility for
Medicaid.
(46)
Federal waiver--Any waiver permitted under federal
law and approved by CMS that allows states to implement Medicaid managed
care.
(47)
Federally Qualified Health Center (FQHC)--An entity
that is certified by CMS to meet the requirements of 42 U.S.C. §1395x(aa)(3)
as a Federally Qualified Health Center and is enrolled as a provider
in the Texas Medicaid
program.
(48)
Former Foster Care Children (FFCC) program--The
Medicaid program for young adults who aged out of the conservatorship
of DFPS, administered in accordance with Chapter 366, Subchapter J
of this title (relating to Former Foster Care Children's
Program).
(49)
Functional necessity--A member's need for services
and supports with activities of daily living or instrumental activities
of daily living to be healthy and safe in the most integrated setting
possible. This determination is based on the results of a functional
assessment.
(50)
Habilitation--Acquisition, maintenance, and enhancement
of skills necessary for the individual to accomplish ADLs, IADLs,
and health-related tasks based on the individual's person-centered
service
plan.
(51)
Health and Human Services Commission (HHSC)--The
single state agency charged with administration and oversight of the
Texas Medicaid program or its
designee.
(52)
Health care managed care organization (health
care MCO)--An entity that is licensed or approved by the Texas Department
of Insurance to operate as a health maintenance organization or to
issue an
EPBP.
(53)
Health care provider group--A legal entity, such
as a partnership, corporation, limited liability company, or professional
association, enrolled in Medicaid, under which certified or licensed
individual health care providers provide health care items or
services.
(54)
Health care services--The acute care, behavioral
health care, and health-related services that an enrolled population
might reasonably require in order to be maintained in good health,
including, at a minimum, emergency services and inpatient and outpatient
services.
(55)
Health maintenance organization (HMO)--An organization
that holds a certificate of authority from the Texas Department of
Insurance to operate as an HMO under Chapter 843 of the Texas Insurance
Code, or a certified Approved Non-Profit Health Corporation formed
in compliance with Chapter 844 of the Texas Insurance
Code.
(56)
Hospital--A licensed public or private institution
as defined in the Texas Health and Safety Code at Chapter 241, relating
to hospitals, or Chapter 261, relating to municipal
hospitals.
(57)
Intermediate care facility for individuals with
an intellectual disability or related condition (ICF-IID)--A facility
providing care and services to individuals with intellectual disabilities
or related conditions as defined in §1905(d) of the Social Security
Act (42 U.S.C.
1396(d)).
(58)
Legally authorized representative (LAR)--A person
authorized by law to act on behalf of an individual with regard to
a matter described in this chapter, 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.
(59)
Long term service and support (LTSS)--A service
provided to a qualified member in his or her home or other community-based
setting necessary to allow the member to remain in the most integrated
setting possible. LTSS includes services provided under the Texas
State Plan as well as services available to persons who qualify for
STAR+PLUS Home and Community-Based Program services or Medicaid 1915(c)
waiver services. LTSS available through an MCO in STAR+PLUS, STAR
Health, and STAR Kids varies by program
model.
[(60)
Main dental home provider--See
definition of "dental home" in this
section.]
(60)
[(61)] Main dentist--See
definition of "dental home" in this
section.
(61)
[(62)] Managed care--A health
care delivery system or dental services delivery system in which the
overall care of a patient is coordinated by or through a single provider
or
organization.
(62)
[(63)] Managed care organization
(MCO)--A dental MCO or a health care
MCO.
(63)
[(64)] Marketing--Any communication
from an MCO to a client who is not enrolled with the MCO that can
reasonably be interpreted as intended to influence the client's decision
to enroll, not to enroll, or to disenroll from a particular
MCO.
(64)
[(65)] Marketing materials--Materials
that are produced in any medium by or on behalf of the MCO that can
reasonably be interpreted as intending to market to potential members.
Materials relating to the prevention, diagnosis, or treatment of a
medical or dental condition are not marketing
materials.
(65)
[(66)] MDCP--Medically Dependent
Children Program. 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.
(66)
[(67)] Medicaid--The medical
assistance program authorized and funded pursuant to Title XIX of
the Social Security Act (42 U.S.C. §1396 et seq) and administered
by
HHSC.
(67)
[(68)] Medicaid for transitioning
foster care youth (MTFCY) program--The Medicaid program for young
adults who aged out of the conservatorship of DFPS, administered in
accordance with Chapter 366, Subchapter F of this title (relating
to Medicaid for Transitioning Foster Care
Youth).
(68)
[(69)] Medical Assistance
Only (MAO)--A person who qualifies financially and functionally for
Medicaid assistance but does not receive Supplemental Security Income
(SSI) benefits, as defined in Chapters 358, 360, and 361, of this
title (relating to Medicaid Eligibility for the Elderly and People
with Disabilities, Medicaid Buy-In Program, and Medicaid
Buy-In for Children
Program).
(69)
[(70)] Medical home--A PCP
or specialty care provider who has accepted the responsibility for
providing accessible, continuous, comprehensive, and coordinated care
to members participating in an MCO contracted with
HHSC.
(70)
[(71)] Medically
necessary--
(A)
For Medicaid members birth through age 20, the
following Texas Health Steps
services:
(i)
screening, vision, dental, and hearing services;
and
(ii)
other health care services or dental services
that are necessary to correct or ameliorate a defect or physical or
mental illness or condition. A determination of whether a service
is necessary to correct or ameliorate a defect or physical or mental
illness or
condition:
(I)
must comply with the requirements of a final court
order that applies to the Texas Medicaid program or the Texas Medicaid
managed care program as a whole;
and
(II)
may include consideration of other relevant factors,
such as the criteria described in subparagraphs (B)(ii) - (vii) and
(C)(ii) - (vii) of this
paragraph.
(B)
For Medicaid members over age 20, non-behavioral
health services that
are:
(i)
reasonable and necessary to prevent illnesses or
medical conditions, or provide early screening, interventions, or
treatments for conditions that cause suffering or pain, cause physical
deformity or limitations in function, threaten to cause or worsen
a disability, cause illness or infirmity of a member, or endanger
life;
(ii)
provided at appropriate facilities and at the
appropriate levels of care for the treatment of a member's health
conditions;
(iii)
consistent with health care practice guidelines
and standards that are endorsed by professionally recognized health
care organizations or governmental
agencies;
(iv)
consistent with the member's medical
need;
(v)
no more intrusive or restrictive than necessary
to provide a proper balance of safety, effectiveness, and
efficiency;
(vi)
not experimental or investigative;
and
(vii)
not primarily for the convenience of the member
or
provider.
(C)
For Medicaid members over age 20, behavioral health
services
that:
(i)
are reasonable and necessary for the diagnosis
or treatment of a mental health or substance use disorder, or to improve,
maintain, or prevent deterioration of functioning resulting from such
a
disorder;
(ii)
are in accordance with professionally accepted
clinical guidelines and standards of practice in behavioral health
care;
(iii)
are furnished in the most appropriate and least
restrictive setting in which services can be safely
provided;
(iv)
are the most appropriate level or supply of service
that can safely be
provided;
(v)
could not be omitted without adversely affecting
the member's mental and/or physical health or the quality of care
rendered;
(vi)
are not experimental or investigative;
and
(vii)
are not primarily for the convenience of the
member or
provider.
(71)
[(72)] Member--A person
who is eligible for benefits under Title XIX of the Social Security
Act and Medicaid, is in a Medicaid eligibility category included in
the Medicaid managed care program, and is enrolled in a Medicaid
MCO.
(72)
[(73)] Member education
program--A planned program of
education:
(A)
concerning access to health care services or dental
services through the MCO and about specific health or dental
topics;
(B)
that is approved by HHSC;
and
(C)
that is provided to members through a variety of
mechanisms that must include, at a minimum, written materials and
face-to-face or audiovisual
communications.
(73)
[(74)] Member materials--All
written materials produced or authorized by the MCO and distributed
to members or potential members containing information concerning
the managed care program. Member materials include member ID cards,
member handbooks, provider directories, and marketing
materials.
(74)
[(75)] Non-capitated service--A
benefit available to members under the Texas Medicaid program for
which an MCO is not responsible for
payment.
(75)
Nursing facility--As defined
in §358.103 of this title (relating to Definitions) and 26 TAC §554.101
(relating to Definitions), an entity or institution, also called nursing
home or skilled nursing facility, that provides organized and structured
nursing care and services and is subject to licensure under Texas
Health and Safety Code Chapter
242.
(76)
Nursing facility add-on services--The
types of services that are provided in a nursing facility setting
by a nursing facility provider or another provider, but are not included
in the nursing facility unit rate, including emergency dental services,
physician-ordered rehabilitative services, customized power wheel
chairs, augmentative communication devices, tracheostomy care for
youth under age 22, and ventilator
care.
(77)
Nursing facility services--The
services included in the nursing facility unit rate, nursing facility
Medicare coinsurance, and nursing facility add-on
services.
(78)
Nursing facility unit rate--The
rate for the type of services included in the Medicaid fee-for-service
(FFS) daily rate for nursing facility providers as defined in 26 TAC §554.2601
(relating to Vendor Payment (Items and Services Included)), including
room and board, medical supplies and equipment, personal needs items,
social services, and over-the-counter drugs. The nursing facility
unit rate also includes applicable nursing facility staff rate enhancements
as described in §355.308 of this title (relating to Direct Care
Staff Rate Component), and professional and general liability insurance
add-on payments as described in §355.312 of this title (relating
to Reimbursement Setting Methodology--Liability Insurance Costs).
The nursing facility unit rate excludes nursing facility add-on services.
(79)
[(76)] Outside regular business
hours--As applied to FQHCs and rural health clinics (RHCs), means
before 8 a.m. and after 5 p.m. Monday through Friday, weekends, and
federal
holidays.
(80)
[(77)] Participating MCO--An
MCO that has a contract with HHSC to provide services to
members.
(81)
[(78)] Permanency Care Assistance
Program--The program administered by DFPS in accordance with 40 TAC
Chapter 700, Subchapter J, Division 2 (relating to Permanency Care
Assistance
Program).
(82)
[(79)] Person-centered care--An
approach to care that focuses on members as individuals and supports
caregivers working most closely with 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.
(83)
[(80)] Person-centered planning--A
documented service planning process that includes people chosen by
the individual, is directed by the individual to the maximum extent
possible, enables the individual to make choices and decisions, is
timely and occurs at times and locations convenient to the individual,
reflects cultural considerations of the individual, includes strategies
for solving conflict or disagreement within the process, offers choices
to the individual regarding the services and supports they receive
and from whom, includes a method for the individual to require updates
to the plan, and records alternative settings that were considered
by the
individual.
(84)
[(81)] Post-stabilization
care service--A covered service, related to an emergency medical condition,
that is provided after a Medicaid member is stabilized in order to
maintain the stabilized condition, or, under the circumstances described
in 42 C.F.R. §438.114(b) and (e) and 42 C.F.R. §422.113(c)(iii)
to improve or resolve the Medicaid member's
condition.
(85)
[(82)] Primary care provider
(PCP)--A physician or other provider who has agreed with the health
care MCO to provide a medical home to members and who is responsible
for providing initial and primary care to patients, maintaining the
continuity of patient care, and initiating referral for
care.
(86)
[(83)] Provider--A credentialed
and licensed individual, facility, agency, institution, organization,
or other entity, and its employees and subcontractors, that has a
contract with the MCO for the delivery of covered services to the
MCO's
members.
(87)
[(84)] Provider education
program--Program of education about the Medicaid managed care program
and about specific health or dental care issues presented by the MCO
to its providers through written materials and training
events.
(88)
[(85)] Provider network
or Network--All providers that have contracted with the MCO for the
applicable managed care
program.
(89)
[(86)] Quality improvement--A
system to continuously examine, monitor, and revise processes and
systems that support and improve administrative and clinical
functions.
(90)
[(87)] Rural Health Clinic
(RHC)--An entity that meets all of the requirements for designation
as a rural health clinic under §1861(aa)(1) of the Social Security
Act (42 U.S.C. §1395x(aa)(1)) and is approved for participation
in the Texas Medicaid
program.
(91)
[(88)] Service area--The
counties included in any HHSC-defined service area as applicable to
each
MCO.
(92)
[(89)] Significant traditional
provider (STP)--A provider identified by HHSC as having provided a
significant level of care to the target population, including a
DSH.
(93)
[(90)] STAR--The State of
Texas Access Reform (STAR) managed care program that operates under
a federal waiver and primarily provides, arranges for, and coordinates
preventive, primary, acute care, and pharmacy services for low-income
families, children, and pregnant
women.
(94)
[(91)] STAR Health--The
managed care program that operates under the Medicaid state plan and
primarily
serves:
(A)
children and youth in DFPS
conservatorship;
(B)
young adults who voluntarily agree to continue
in a foster care placement (if the state as conservator elects to
place the child in managed care);
and
(C)
young adults who are eligible for Medicaid as a
result of their former foster care status through the month of their
21st
birthday.
(95)
[(92)] STAR Kids--The program
that operates under a federal waiver and primarily provides, arranges,
and coordinates preventative, primary, acute care, and long-term services
and supports to persons with disabilities under the age of 21 who
qualify for
Medicaid.
(96)
[(93)] STAR+PLUS--The managed
care program that operates under a federal waiver and primarily provides,
arranges, and coordinates preventive, primary, acute care, and long-term
services and supports to persons with disabilities and elderly persons
age 65 and over who qualify for Medicaid by virtue of their SSI or
MAO
status.
(97)
[(94)] STAR+PLUS Home and
Community-Based Services 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.
(98)
[(95)] State plan--The agreement
between the CMS and HHSC regarding the operation of the Texas Medicaid
program, in accordance with the requirements of Title XIX of the Social
Security
Act.
(99)
[(96)] Supplemental Security
Income (SSI)--The federal cash assistance program of direct financial
payments to people who are 65 years of age or older, are blind, or
have a disability administered by the Social Security Administration
(SSA) under Title XVI of the Social Security Act. All persons who
are certified as eligible for SSI in Texas are eligible for Medicaid.
Local SSA claims representatives make SSI eligibility determinations.
The transactions are forwarded to the SSA in Baltimore, which then
notifies the states through the State Data Exchange
(SDX).
(100)
[(97)] Texas Health Steps
(THSteps)--The name adopted by the State of Texas for the federally
mandated Early and Periodic Screening, Diagnosis, and Treatment (EPSDT)
services, described at 42 U.S.C. §1396d(r) and 42 CFR §440.40
and §§441.40 -
441.62.
(101)
[(98)] Value-added service--A
service provided by an MCO that is not "medical assistance," as defined
by §32.003 of the Texas Human Resources
Code.
§353.4.Managed Care Organization Requirements
Concerning Out-of-Network Providers.
(a)
Network adequacy. HHSC is the state agency responsible
for overseeing and monitoring the Medicaid managed care program. Each
managed care organization (MCO) participating in the Medicaid managed
care program must offer a network of providers that is sufficient
to meet the needs of the Medicaid population who are MCO members.
HHSC monitors MCO members' access to an adequate provider network
through reports from the MCOs and complaints received from providers
and members. Certain reporting requirements are discussed in subsection
(g) of this
section.
(b)
MCO requirements concerning coverage for treatment
of members by out-of-network providers for non-emergency
services.
(1)
Nursing facility services. A health care MCO must
reimburse an out-of-network nursing facility for medically necessary
services authorized by HHSC, using the reasonable reimbursement methodology
in subsection (f) of this section. Nursing facility add-on services
are considered "other authorized services" under paragraph (2) of
this subsection, and are authorized by STAR+PLUS
MCOs.
(2)
Other authorized services. The MCO must allow referral
of its member(s) to an out-of-network provider, must timely issue
the proper authorization for such referral, and must timely reimburse
the out-of-network provider for authorized services provided if the
criteria in this paragraph are met. If all of the following criteria
are not met, an out-of-network provider is not entitled to Medicaid
reimbursement for non-emergency
services:
(A)
Medicaid covered services are medically necessary
and these services are not available through an in-network
provider;
(B)
a participating provider currently providing authorized
services to the member requests authorization for such services to
be provided to the member by an out-of-network provider;
and
(C)
the authorized services are provided within the
time period specified in the MCO's authorization. If the services
are not provided within the required time period, a new request for
referral from the requesting provider must be submitted to the MCO
prior to the provision of
services.
(3)
School-based telemedicine medical
services. If a telemedicine medical service provided by an out-of-network
physician to a member in a primary or secondary school-based setting
meets the conditions for reimbursement in §354.1432 of this title
(relating to Telemedicine and Telehealth Benefits and Limitations),
a health care MCO must reimburse the out-of-network physician without
prior authorization, even if the physician is not the member's primary
care provider. The MCO must use the reasonable reimbursement methodology
described in subsection (f)(2) of this section to reimburse an out-of-network
physician.
(c)
MCO requirements concerning coverage for treatment
of members by out-of-network providers for emergency
services.
(1)
An MCO may not refuse to reimburse an out-of-network
provider for medically necessary emergency
services.
(2)
Health care MCO requirements concerning emergency
services.
(A)
A health care MCO may not refuse to reimburse an
out-of-network provider for post-stabilization care services provided
as a result of the MCO's failure to authorize a timely transfer of
a
member.
(B)
A health care MCO must allow its members to be
treated by any emergency services provider for emergency services,
and services to determine if an emergency condition exists. The health
care MCO must pay for such
services.
(C)
A health care MCO must reimburse for transport
provided by an ambulance provider for a Medicaid recipient whose condition
meets the definition of an emergency medical condition. Facility-to-facility
transports are considered emergencies if the required treatment for
the emergency medical condition, as defined in §353.2 of this
subchapter (relating to Definitions), is not available at the first
facility and the MCO has not included payment for such transports
in the hospital
reimbursement.
(D)
A health care MCO is prohibited from requiring
an authorization for emergency services or for services to determine
if an emergency condition
exists.
(3)
Dental MCO requirements concerning emergency services.
(A)
A dental MCO must allow its members to be treated
for covered emergency services that are provided outside of a hospital
or ambulatory surgical center setting, and for covered services provided
outside of such settings to determine if an emergency condition exists.
The dental MCO must pay for such
services.
(B)
A dental MCO is prohibited from requiring an authorization
for the services described in subparagraph (A) of this
paragraph.
(C)
A dental MCO is not responsible for payment of
non-capitated emergency services and post-stabilization care provided
in a hospital or ambulatory surgical center setting, or devices for
craniofacial anomalies. A dental MCO is not responsible for hospital
and physician services, anesthesia, drugs related to treatment, and
post-stabilization care
for:
(i)
a dislocated jaw, traumatic damage to a tooth,
and removal of a
cyst;
(ii)
an oral abscess of tooth or gum origin;
and
(iii)
craniofacial
anomalies.
(D)
The services and benefits described in subparagraph
(C) of this paragraph are
reimbursed:
(i)
by a health care MCO, if the member is enrolled
in a managed care program;
or
(ii)
by HHSC's claims administrator, if the member
is not enrolled in a managed care
program.
(d)
Health care MCO requirements concerning coverage
for services provided to certain members by an out-of-network "specialty
provider" as that term is defined in §353.7(c) of this subchapter
(relating to Continuity of Care with Out-Of-Network Specialty Providers).
(1)
A health care MCO may not refuse to reimburse an
out-of-network "specialty provider" enrolled as a provider in the
Texas Medicaid program for services provided to a member under the
circumstances set forth in §353.7 of this
subchapter.
(2)
In reimbursing a provider for the services described
in paragraph (1) of this subsection, a health care MCO must use the
reasonable reimbursement methodology in subsection (f)(2) of this
section.
(e)
An MCO may be required by contract with HHSC to
allow members to obtain services from out-of-network providers in
circumstances other than those described in subsections (b) - (d)
of this
section.
(f)
Reasonable reimbursement
methodology.
(1)
Out-of-network nursing
facilities.
(A)
Out-of-network nursing facilities must be reimbursed[:
]
[(i)]
at or above 95 [ninety-five
] percent of the nursing facility unit rate established by HHSC
for the dates of service for services provided inside of the MCO's
service area. [;
and]
(B)
Out-of-network nursing facilities
must be reimbursed
[(ii)]
at or above 100 [one
hundred] percent of the nursing facility unit rate for the dates
[date] of services for services provided outside
of the MCO's service
area.
[(B)
The nursing facility unit rate
refers to the Medicaid fee-for-service (FFS) daily rate for nursing
facility providers as determined by HHSC. The rate includes items
such as room and board, medical supplies and equipment, personal needs
items, social services, and over-the-counter drugs. The nursing facility
unit rate also includes professional and general liability insurance
and applicable nursing facility rate enhancements. The nursing facility
unit rate excludes nursing facility add-on
services.]
(2)
Emergency and authorized services performed by
out-of-network
providers.
(A)
Except as provided in §353.913 of this chapter
(relating to Managed Care Organization Requirements Concerning Out-of-Network
Outpatient Pharmacy Services) or subsection (j)(2) of this section,
the MCO must reimburse an out-of-network, in-area service provider
the Medicaid FFS rate in effect on the date of service less five percent,
unless the parties agree to a different reimbursement
amount.
(B)
Except as provided in §353.913 of this chapter,
an MCO must reimburse an out-of-network, out-of-area service provider
at 100 percent of the Medicaid FFS rate in effect on the date of service,
unless the parties agree to a different reimbursement amount, until
the MCO arranges for the timely transfer of the member, as determined
by the member's attending physician, to a provider in the MCO's network.
(3)
For purposes of this subsection, the Medicaid FFS
rates are defined as those rates for providers of services in the
Texas Medicaid program for which reimbursement methodologies are specified
in Chapter 355 of this title (relating to Reimbursement Rates), exclusive
of the rates and payment structures in Medicaid managed
care.
(g)
Reporting
requirements.
(1)
Each MCO that contracts with HHSC to provide health
care services or dental services to members in a service area must
submit quarterly information in its Out-of-Network quarterly report
to
HHSC.
(2)
Each report submitted by an MCO must contain information
about members enrolled in each HHSC Medicaid managed care program
provided by the MCO. The report must include the following
information:
(A)
the types of services provided by out-of-network
providers for the MCO's
members;
(B)
the scope of services provided by out-of-network
providers to the MCO's
members;
(C)
for a health care MCO, the total number of hospital
admissions, as well as the number of admissions that occur at each
out-of-network hospital. Each out-of-network hospital must be identified;
(D)
for a health care MCO, the total number of emergency
room visits, as well as the total number of emergency room visits
that occur at each out-of-network hospital. Each out-of-network hospital
must be
identified;
(E)
total dollars for paid claims by MCOs, other than
those described in subparagraphs (C) and (D) of this paragraph, as
well as total dollars billed by out-of-network providers for other
services;
and
(F)
any additional information required by
HHSC.
(3)
HHSC determines the specific form of the report
described in this subsection and includes the report form as part
of the Medicaid managed care contract between HHSC and the
MCOs.
(h)
Utilization.
(1)
Upon review of the reports described in subsection
(g) of this section that are submitted to HHSC by the MCOs, HHSC may
determine that an MCO exceeded maximum out-of-network usage standards
set by HHSC for out-of-network access to health care services and
dental services during the reporting
period.
(2)
Out-of-network usage
standards.
(A)
Inpatient admissions: No more than 15 percent of
a health care MCO's total hospital admissions, by service area, may
occur in out-of-network
facilities.
(B)
Emergency room visits: No more than 20 percent
of a health care MCO's total emergency room visits, by service area,
may occur in out-of-network
facilities.
(C)
Other services: For services that are not included
in subparagraph (A) or (B) of this paragraph, no more than 20 percent
of total dollars for paid claims by the MCO for services provided
may be provided by out-of-network
providers.
(3)
Special considerations in calculating a health
care MCO's out-of-network usage of inpatient admissions and emergency
room
visits.
(A)
In the event that a health care MCO exceeds the
maximum out-of-network usage standard set by HHSC for inpatient admissions
or emergency room visits, HHSC may modify the calculation of that
health care MCO's out-of-network usage for that standard
if:
(i)
the admissions or visits to a single out-of-network
facility account for 25 percent or more of the health care MCO's admissions
or visits in a reporting period;
and
(ii)
HHSC determines that the health care MCO has made
all reasonable efforts to contract with that out-of-network facility
as a network provider without
success.
(B)
In determining whether the health care MCO has
made all reasonable efforts to contract with the single out-of-network
facility described in subparagraph (A) of this paragraph, HHSC considers
at least the following
information:
(i)
how long the health care MCO has been trying to
negotiate a contract with the out-of-network
facility;
(ii)
the in-network payment rates the health care MCO
has offered to the out-of-network
facility;
(iii)
the other, non-financial contractual terms the
health care MCO has offered to the out-of-network facility, particularly
those relating to prior authorization and other utilization management
policies and
procedures;
(iv)
the health care MCO's history with respect to
claims payment timeliness, overturned claims denials, and provider
complaints;
(v)
the health care MCO's solvency status;
and
(vi)
the out-of-network facility's reasons for not
contracting with the health care
MCO.
(C)
If the conditions described in subparagraph (A)
of this paragraph are met, HHSC may modify the calculation of the
health care MCO's out-of-network usage for the relevant reporting
period and standard by excluding from the calculation the inpatient
admissions or emergency room visits to that single out-of-network
facility.
(i)
Provider
complaints.
(1)
HHSC accepts provider complaints regarding reimbursement
for or overuse of out-of-network providers and conducts investigations
into any such
complaints.
(2)
When a provider files a complaint regarding out-of-network
payment, HHSC requires the relevant MCO to submit data to support
its position on the adequacy of the payment to the provider. The data
includes a copy of the claim for services rendered and an explanation
of the amount paid and of any amounts
denied.
(3)
Not later than the 60th day after HHSC receives
a provider complaint, HHSC notifies the provider who initiated the
complaint of the conclusions of HHSC's investigation regarding the
complaint. The notification to the complaining provider
includes:
(A)
a description of the corrective actions, if any,
required of the MCO in order to resolve the complaint;
and
(B)
if applicable, a conclusion regarding the amount
of reimbursement owed to an out-of-network
provider.
(4)
If HHSC determines through investigation that an
MCO did not reimburse an out-of-network provider based on a reasonable
reimbursement methodology as described in subsection (f) of this section,
HHSC initiates a corrective action plan. Refer to subsection (j) of
this section for information about the contents of the corrective
action
plan.
(5)
If, after an investigation, HHSC determines that
additional reimbursement is owed to an out-of-network provider, the
MCO
must:
(A)
pay the additional reimbursement owed to the out-of-network
provider within 90 days from the date the complaint was received by
HHSC or 30 days from the date the clean claim, or information required
that makes the claim clean, is received by the MCO, whichever comes
first;
or
(B)
submit a reimbursement payment plan to the out-of-network
provider within 90 days from the date the complaint was received by
HHSC. The reimbursement payment plan provided by the MCO must provide
for the entire amount of the additional reimbursement to be paid within
120 days from the date the complaint was received by
HHSC.
(6)
If the MCO does not pay the entire amount of the
additional reimbursement within 90 days from the date the complaint
was received by HHSC, HHSC may require the MCO to pay interest on
the unpaid amount. If required by HHSC, interest accrues at a rate
of 18 percent simple interest per year on the unpaid amount from the
90th day after the date the complaint was received by HHSC, until
the date the entire amount of the additional reimbursement is
paid.
(7)
HHSC pursues any appropriate remedy authorized
in the contract between the MCO and HHSC if the MCO fails to comply
with a corrective action plan under subsection (j) of this
section.
(j)
Corrective action
plan.
(1)
HHSC requires a corrective action plan in the following
situations:
(A)
the MCO exceeds a maximum standard established
by HHSC for out-of-network access to health care services and dental
services described in subsection (h) of this section;
or
(B)
the MCO does not reimburse an out-of-network provider
based on a reasonable reimbursement methodology as described in subsection
(f) of this
section.
(2)
A corrective action plan imposed by HHSC requires
one of the
following:
(A)
reimbursements by the MCO to out-of-network providers
at rates that equal the allowable rates for the health care services
as determined under §32.028 and §32.0281, Texas Human Resources
Code, for all health care services provided during the
period:
(i)
the MCO is not in compliance with a utilization
standard established by HHSC;
or
(ii)
the MCO is not reimbursing out-of-network providers
based on a reasonable reimbursement methodology, as described in subsection
(f) of this
section;
(B)
initiation of an immediate freeze by HHSC on the
enrollment of additional recipients in the MCO's managed care plan
until HHSC determines that the provider network under the managed
care plan can adequately meet the needs of the additional
recipients;
(C)
education by the MCO of members enrolled in the
MCO regarding the proper use of the MCO's provider network;
or
(D)
any other actions HHSC determines are necessary
to ensure that Medicaid recipients enrolled in managed care plans
provided by the MCO have access to appropriate health care services
or dental services, and that providers are properly reimbursed by
the MCO for providing medically necessary health care services or
dental services to those
recipients.
(k)
Application to Pharmacy Providers. The requirements
of this section do not apply to providers of outpatient pharmacy benefits,
except as noted in §353.913 of this chapter (relating to Managed
Care Organization Requirements Concerning Out-of-Network Outpatient
Pharmacy
Services).
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 November 20,
2023.
TRD-202304327
Karen
Ray
Chief
Counsel
Texas Health and Human Services
Commission
Earliest possible date of adoption: January 7,
2024
For further information, please call: (512)
221-6857