PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §355.8085, concerning Reimbursement Methodology for Physicians and Other Practitioners; and §355.8441, concerning Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services.
BACKGROUND AND PURPOSE
The purpose of the proposal is to clarify the current structure of reimbursement methodologies for certain services and programs administered by HHSC. The amendments add details to describe the methodology HHSC uses to determine reimbursement amounts to Licensed Behavior Analysts (LBAs) and Licensed Assistant Behavior Analysts (LaBAs) for Applied Behavior Analysis (ABA) professional services. The amendment also adds wage statistic data as an element to be considered for reimbursement methodology for Physicians and Other Practitioners.
In addition, following a Centers for Medicare & Medicaid Services (CMS) revision of their reimbursement methodologies, references to the Medicare reimbursement methodology are being updated to be in line with the CMS changes. The intent is to remove outdated reimbursement percentages and references to the Medicare average sales price and replace them with simpler references to the Medicare fee schedules where applicable. Where §355.8085 currently specifies its applicability to the Texas Medicaid program, the language has been revised to include "and other programs administered by Texas HHSC" in order to add clarity that the rule can apply to other programs in addition to Medicaid. This update provides clarification regarding the scope of the reimbursement methods.
SECTION-BY-SECTION SUMMARY
Edits were made throughout §355.8085 and §355.8441 to correct punctuation, grammar, and references, and to clarify phrases.
Proposed amendment to §355.8085(a) adds an analysis of wage statistics data as one of the elements HHSC considers when reviewing fees for individual services at least every two years.
Proposed amendment to §355.8085(b) adds LBAs and LaBAs to the list of eligible providers.
Proposed amendment to §355.8085(e)(5) removes any references to a percentage of Medicare average sales price and replaces previous references with a reference to the Medicare rate.
Proposed amendment §355.8085(g)(6) adds a reference to §355.8441 as the location in which reimbursement methodology for LaBAs is defined.
Proposed amendment §355.8441(a)(13) defines reimbursement methodologies for LBAs and LaBAs.
FISCAL NOTE
Trey Wood, 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 not expand, limit, or repeal 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 do not impose any additional costs or requirements on small businesses, micro-businesses, or rural communities that are required to comply with the rules. The proposed rules clarify reimbursement methodologies for services that are already covered.
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.
PUBLIC BENEFIT AND COSTS
Victoria Grady, Director of Provider Finance, has determined that for each year of the first five years the rules are in effect, the public will benefit from added transparency regarding reimbursement for these services.
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 is no cost associated with this rule update.
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 HEARING
A public hearing to receive comments on the proposal will be held via webinar. The meeting date and time will be posted on the HHSC Communications and Events Website at https://hhs.texas.gov/about-hhs/communications-events and the HHSC Provider Finance communications website at https://pfd.hhs.texas.gov/provider-finance-communications.
Persons requiring further information, special assistance, or accommodations should email the Provider Finance Acute Care's section at PFDAcuteCare@hhs.texas.gov, if you have questions.
PUBLIC COMMENT
Written comments on the proposal may be submitted to HHSC, Provider Finance Department (Acute Care), 4601 W. Guadalupe St, Austin, Texas 78751; Mail Code H-400, P.O. Box 149030, Austin, Texas 78714-9030; or by email to PFDAcuteCare@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 24R091" in the subject line.
DIVISION 5. GENERAL ADMINISTRATION
STATUTORY AUTHORITY
The amendment is 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, and by Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.021(b-1), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Texas Human Resources Code Chapter 32.
The amendment affects Texas Government Code Chapter 531 and Texas Human Resources Code Chapter 32.
§355.8085.Reimbursement Methodology for Physicians and Other Practitioners.
(a) Introduction. This section describes the [Texas
Medicaid] reimbursement methodology that the Texas Health and
Human Services Commission (HHSC) uses to calculate payment for covered
services provided by physicians and other practitioners within
Texas Medicaid and other programs administered by HHSC.
(1) There is no geographical or specialty reimbursement differential for individual services.
(2) HHSC reviews the fees for individual services at least every two years based upon:
(A) analysis of Medicare fees for the same or similar item or service;
(B) analysis of Medicaid fees for the same or similar
item or service in other states; [or]
(C) analysis of commercial fees for the same or similar
item or service; or[.]
(D) an analysis of wage statistics data.
(3) HHSC may use data sources or methodologies other
than those listed in paragraph (2) of this subsection to establish reimbursement
[Medicaid] fees for physicians and other practitioners
when HHSC determines that those methodologies are unreasonable or insufficient.
(4) Fees for these services are adjusted within available
funding as described in §355.201 of this chapter [title
] (relating to Establishment and Adjustment of Reimbursement
Rates for Medicaid [by the Health and Human Services Commission]).
(b) Eligible Providers. Eligible providers include the
following.[:]
(1) Providers of Laboratory and X-ray Services;
(2) Providers of Radiation Therapy;
(3) Physical, Occupational, and Speech Therapists;
(4) Physical, Occupational, and Speech Therapy Assistants;
(5) Physicians;
(6) Podiatrists;
(7) Chiropractors;
(8) Optometrists;
(9) Dentists;
(10) Psychologists;
(11) Licensed Psychological Associates;
(12) Provisionally Licensed Psychologists;
(13) Licensed Psychological Interns and Fellows;
(14) Maternity clinics;
(15) State Supported Living Centers;
(16) Tuberculosis clinics; [and]
(17) Peer Specialists;[.]
(18) Licensed Behavior Analysts (LBAs); and
(19) Licensed Assistant Behavior Analysts (LaBAs).
(c) Definitions. When used in this section, these
words and terms have the following meanings unless the context clearly
indicates otherwise. [The following words and terms, when
used in this section, have the following meanings, unless the context
clearly indicates otherwise.]
(1) Access-based fees (ABF)--Fees for individual services, where HHSC deems necessary, to account for deficiencies relating to the adequacy of access to health care services.
(2) Biological--A substance that is made from a living organism or its products and is used in the prevention, diagnosis, or treatment of cancer and other diseases.
(3) Conversion factor--The dollar amount by which the sum of the three cost component relative value units (RVUs) is multiplied to obtain a reimbursement fee for each individual service.
(4) Drug--Any substance that is used to prevent, diagnose, treat or relieve symptoms of a disease or abnormal condition.
(5) HHSC--The Texas Health and Human Services Commission or its designee.
(6) Relative value units (RVUs)--The relative value
assigned to each of the three individual components that comprise
the cost of providing individual [Medicaid] services for
Medicaid and other programs administered by HHSC. The three
cost components of each reimbursement fee are intended to reflect
the work, overhead, and professional liability expense required to
provide each individual service.
(7) Resource-based fees (RBF)--Fees for individual services based upon HHSC's determination of the resources that an economically efficient provider requires to provide individual services.
(8) Vaccine--An immunogen, the administration of which is intended to stimulate the immune system to result in the prevention, amelioration or therapy of any disease or infection.
(d) Calculating the payment amounts. Subject to qualifications,
limitations, and exclusions as provided in this chapter, payment to
eligible providers must not exceed the lesser of the provider's billed
amount or the amount derived from the methodology described in this
section. The fee schedule that results from the reimbursement methodology
may be composed of both ABFs [access-based fees (ABFs)]
and (RBFs) [resource-based fees (RBFs)].
(1) ABF methodology allows the state to:
(A) reimburse for procedure codes not covered by Medicare;
(B) account for inadequate reimbursement rates for particularly difficult procedures;
(C) encourage participation in the HHSC administered
programs [Medicaid program] by physicians and other
practitioners; and
(D) set reimbursement to allow the eligible HHSC administered program's [Medicaid] population
to receive adequate health care services in an appropriate setting.
(2) An RBF is calculated using the following formula:
RBF = (total RVU * CF), where RBF = Resource-Based Fee, total RVU
= the sum of the three Relative Value Units that comprise the cost
of providing individual [Medicaid] services, and CF = Conversion Factor.
(A) Except when [as otherwise]
specified otherwise, HHSC bases the RVUs that are employed
in the HHSC [Texas Medicaid] reimbursement methodologies
on [methodology upon] the RVUs of the individual
services as specified in the Medicare Fee Schedule. HHSC reviews any
changes to, or revisions of, the various Medicare RVUs and, if applicable,
adopts the changes as part of the reimbursement methodology within
available funding.
(B) HHSC may develop and apply multiple conversion factors for various classes of service, such as obstetrics, pediatrics, general surgeries, and/or primary care services.
(e) Reimbursement for physician-administered drugs,
vaccines, and biologicals. In determining the reimbursement methodology
for physician-administered drugs, vaccines, and biologicals, HHSC
may consider information such as costs, utilization, data sufficiency,
and public input. Reimbursement for physician-administered drugs,
vaccines, and biologicals is [are] based on
the lesser of the billed amount, a percentage of the Medicare rate,
or one of the following methodologies:
(1) If the drug or biological is considered a new drug
or biological (that is, approved for marketing by the Food and Drug
Administration within 12 months of implementation as a benefit of HHSC-administered
programs [Texas Medicaid]), it may be reimbursed
at an amount equal to 89.5 percent of the average wholesale
price (AWP).
(2) If the drug or biological does not meet the definition of a new drug or biological, it may be reimbursed at an amount equal to 85 percent of AWP.
(3) Vaccines may be reimbursed at an amount equal to 89.5 percent of AWP.
(4) Infusion drugs furnished through an item of implanted Durable Medical Equipment may be reimbursed at an amount equal to 89.5 percent of AWP.
(5) Drugs, other than vaccines and infusion drugs,
may be reimbursed at a percentage of the Medicare rate [an
amount equal to 106 percent of the average sales price (ASP)].
(6) HHSC may use other data sources or methodologies
to establish its [Medicaid] fees for physician-administered
drugs, vaccines, and biologicals when HHSC determines that the above
methodologies are unreasonable or insufficient.
(f) Reimbursement for services provided under the supervision
of a licensed psychologist. Services [Reimbursement
for services] provided under the supervision of a licensed psychologist
by a licensed psychological associate (LPA) or a provisionally licensed
psychologist (PLP) are [is] reimbursed to the
licensed psychologist at 70 percent of the fee paid to the licensed
psychologist for the same service. Services [Reimbursement
for services] provided under the supervision of a licensed psychologist
by a licensed psychology intern or fellow are [is]
reimbursed at 50 percent of the fee paid to a licensed psychologist
for the same service.
(g) Reimbursement for certain other providers. The descriptions for reimbursement of certain other providers are described in sections of this chapter.
(1) Reimbursement for physician assistants is described
in §355.8093 of this chapter [title] (relating
to Reimbursement Methodology for Physician Assistants).
(2) Reimbursement for nurse practitioners and clinical
nurse specialists is described in §355.8281 of this chapter [title] (relating to Reimbursement Methodology for Nurse Practitioners
and Clinical Nurse Specialists).
(3) Reimbursement for services provided under Early
and Periodic Screening, Diagnosis, and Treatment (EPSDT)
is described in §355.8441 of this chapter [title]
(relating to Reimbursement Methodologies for Early and Periodic Screening,
Diagnosis, and Treatment (EPSDT) Services).
(4) Reimbursement for Licensed Professional Counselors,
Licensed Clinical Social Workers, and Licensed Marriage and Family
Therapists is described in §355.8091 of this chapter [title] (relating to Reimbursement to Licensed Professional Counselors,
Licensed Clinical Social Workers, and Licensed Marriage and Family Therapists).
(5) Reimbursement for Physical, Occupational, and Speech
Therapy Services is described in §355.8097 of this chapter [title] (relating to Reimbursement Methodology for
Physical, Occupational, and Speech Therapy Services).
(6) Reimbursement methodology for LaBAs is described in §355.8441 of this subchapter (relating to Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services).
(h) Fees for services provided by physicians or other
practitioners are adjusted within available funding as described in
§355.201 of this chapter [title] (relating
to Establishment and Adjustment of Reimbursement Rates for Medicaid [by the Health and Human Services
Commission]).
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 January 16, 2025.
TRD-202500120
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: March 2, 2025
For further information, please call: (512) 217-1686
STATUTORY AUTHORITY
The amendment is 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, and by Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and Texas Government Code §531.021(b-1), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under the Texas Human Resources Code Chapter 32.
The amendment affects Texas Government Code Chapter 531 and Texas Human Resources Code Chapter 32.
§355.8441.Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services.
(a) The following are reimbursement methodologies for services provided under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program, delivered to Medicaid clients under age 21, also known as Texas Health Steps (THSteps) and the THSteps Comprehensive Care Program (CCP). Reimbursement methodologies for services provided to all Medicaid clients, including clients under age 21, are located elsewhere in this chapter.
(1) Counseling and psychotherapy services are reimbursed to freestanding psychiatric facilities in accordance with §355.8060 of this subchapter (relating to Reimbursement Methodology for Freestanding Psychiatric Facilities).
(2) Durable Medical Equipment (DME)[medical
equipment], prosthetics, orthotics and supplies (DMEPOS) are
reimbursed in accordance with §355.8023 of this subchapter (relating
to Reimbursement Methodology for Durable Medical Equipment, Prosthetics,
Orthotics and Supplies (DMEPOS)).
(3) Nursing services, including, but not limited to,
private duty nursing, registered nurse (RN) services, licensed vocational
nurse/licensed practical nurse (LVN/LPN) services, skilled nursing
services delegated to qualified aides by RNs in accordance with the
licensure standards promulgated by the Texas Board of Nursing, and
nursing assessment services, are reimbursed the lesser of the provider's
billed charges or fees established by the Texas Health and Human Services
Commission (HHSC) for each of the applicable provider types as follows.[:]
(A) Independently enrolled RNs and LVNs/LPNs, under §355.8085 of this subchapter (relating to Reimbursement Methodology for Physicians and Other Practitioners);
(B) Home health agencies (HHAs), under §355.8021 of this subchapter (relating to Reimbursement Methodology for Home Health Services); and
(C) Advanced Practice Registered Nurses (APRNs), under §355.8281(a) of this subchapter (relating to Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists).
(4) Physician Assistants (PA), under §355.8093 of this subchapter (relating to Reimbursement Methodology for Physician Assistants).
(5) Physical therapy services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:
(A) independently enrolled therapists, under §355.8097 of this subchapter (relating to Reimbursement Methodology for Physical, Occupational, and Speech Therapy Services);
(B) HHAs, under §355.8097 of this subchapter;
(C) Medicare-certified outpatient facilities known as comprehensive outpatient rehabilitation facilities (CORFs) and outpatient rehabilitation facilities (ORFs), under §355.8097 of this subchapter;
(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and
(E) outpatient hospitals, under §355.8061 of this subchapter (relating to Outpatient Hospital Reimbursement).
(6) Occupational therapy services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:
(A) independently enrolled therapists, under §355.8097 of this subchapter;
(B) HHAs, under §355.8097 of this subchapter;
(C) CORFs and ORFs, under §355.8097 of this subchapter;
(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and
(E) outpatient hospitals, under §355.8061 of this subchapter.
(7) Speech-language pathology services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:
(A) independently enrolled therapists, under §355.8097 of this subchapter;
(B) HHAs, under §355.8097 of this subchapter;
(C) CORFs and ORFs, under §355.8097 of this subchapter;
(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and
(E) outpatient hospitals, under §355.8061 of this subchapter.
(8) Nutritional services provided by licensed dietitians are reimbursed the lesser of the provider's billed charges or fees determined by HHSC in accordance with §355.8085 of this subchapter.
(9) Providers are reimbursed for the administration of immunizations the lesser of the provider's billed charges or fees determined by HHSC in accordance with §355.8085 of this subchapter.
(10) Vaccines are reimbursed the lesser of the provider's billed charges or the fees determined by HHSC in accordance with §355.8085 of this subchapter.
(11) Dental services are reimbursed in accordance with
the following Medicaid reimbursement methodologies.[:]
(A) Dental services provided by enrolled dental providers are reimbursed in accordance with §355.8085 of this subchapter.
(B) Dental services provided by Federally Qualified
Health Centers [federally qualified health centers]
(FQHCs) are reimbursed in accordance with §355.8261 of this subchapter
(relating to Federally Qualified Health Center Services Reimbursement).
(C) For services provided through September 30, 2019,
publicly owned dental providers may be eligible to receive Uncompensated
Care (UC) payments for dental services under the Texas Healthcare
Transformation and Quality Improvement 1115 Waiver, as described in
this section. For services provided beginning October 1, 2019, eligibility
for publicly owned dental providers to receive waiver payments, and
the methodology for calculating payment amounts, is described in §355.8208
[section 355.8208] of this subchapter (relating
to Waiver Payments to Publicly-Owned Dental Providers for Uncompensated
Charity Care) [title]. For purposes of this section,
Uncompensated Care payments are payments intended to defray the uncompensated
costs of services that meet the definition of "medical assistance"
contained in §1905(a) of the Social Security Act. HHSC will calculate
UC payments using the following methodology.[:]
(i) Eligible dental providers must submit an annual cost report based on the federal fiscal year. HHSC will provide the cost report form with detailed instructions to enrolled dental providers. Cost reports are due to HHSC 180 days after the close of the applicable reporting period. Providers must certify that expenditures submitted on the cost report have not been claimed on any other cost report.
(ii) Payments to eligible providers will be based on cost and payment data reported on the cost report along with supporting documentation. As defined in the cost report and detailed instructions, a cost-to-billed-charges ratio will be used to calculate the total allowable cost. The total allowable cost minus any payments will be the UC payment due to the provider. The UC payment is calculated yearly and is contingent on receipt of funds as specified in clause (iii) of this subparagraph.
(iii) The funding for the state share of UC payments
is limited to[,] and obtained through, intergovernmental
transfers of funds from the governmental entity that owns and operates
the dental provider. An intergovernmental transfer that is not received
in the manner and by the date specified by HHSC may not be accepted.
(iv) UC payments are limited by the publicly owned dental provider pool aggregate limit as determined by §355.8201 of this subchapter (relating to Waiver Payments to Hospitals for Uncompensated Care).
(v) If actual UC costs for all eligible publicly owned
dental providers are [is] greater than the publicly
owned dental provider pool aggregate limit as described in clause
(iv) of this subparagraph, then HHSC will reduce the UC payments for
all eligible publicly owned dental providers proportionately.
(vi) If a UC payment results in an overpayment or if the federal government disallows federal financial participation related to the receipt or use of supplemental payments under this section, HHSC may recoup an amount equal to the federal share of supplemental payments overpaid or disallowed. To satisfy the amount owed, HHSC may recoup from any current or future Medicaid payments.
(12) Personal care services (PCS) are reimbursed in
accordance with the following Medicaid reimbursement methodologies
for the applicable provider type.[:]
(A) School districts delivering PCS under School Health
and Related Services (SHARS) are reimbursed in accordance with §355.8443
of this division (relating to Reimbursement Methodology for School
Health and Related Services (SHARS)).[; and]
(B) Providers other than school districts delivering PCS are reimbursed as follows:
(i) PCS and PCS delivered in conjunction with delegated nursing services are reimbursed fees determined by HHSC. HHSC reviews the fees for individual services at least every two years based upon:
(I) analysis of Medicare fees for the same or similar item or service;
(II) analysis of Medicaid fees for the same or similar item or service in other states; or
(III) analysis of commercial fees for the same or similar item or service.
(ii) HHSC may use data sources or methodologies other than those listed in clause (i) of this subparagraph to establish Medicaid fees for physicians and other practitioners when HHSC determines that those methodologies are unreasonable or insufficient.
(iii) PCS delivered through the Consumer Directed Services payment option are reimbursed in accordance with §355.114 of this chapter (relating to Consumer Directed Services Payment Option).
(13) Licensed Behavior Analysts (LBAs) are reimbursed in accordance with §355.8085 of this subchapter and Licensed Assistant Behavior Analysts (LaBAs) are reimbursed at a percentage of LBAs' reimbursement rate.
(b) Fees for EPSDT services are adjusted within available
funding as described in §355.201 of this chapter [title
] (relating to Establishment and Adjustment of Reimbursement
Rates for Medicaid [by the Health and Human Services
Commission]).
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 January 16, 2025.
TRD-202500121
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: March 2, 2025
For further information, please call: (512) 217-1686