PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 11. GENERAL ADMINISTRATION
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §354.1149, concerning Exclusions and Limitations.
BACKGROUND AND PURPOSE
The purpose of the proposal is to align Texas Medicaid coverage of vaccines for adults with federal requirements in section 11405 of the Inflation Reduction Act (IRA) of 2022 (Public Law 117-169). On June 27, 2023, the Centers for Medicare & Medicaid Services issued guidance on its interpretation of the amendments to the Social Security Act made by the IRA to require Medicaid programs to cover vaccines and their administration, provided that the vaccine is approved by the U.S. Food and Drug Administration (FDA) for use by adult populations and is administered in accordance with recommendations of the Advisory Committee on Immunization Practices (ACIP), effective October 1, 2023. States are directed to add coverage for all ACIP-recommended vaccines for adults, including vaccines solely for travel to or from foreign countries. As a result, the Texas Health and Human Services Commission (HHSC) is removing the exclusion of all FDA-approved and ACIP-recommended vaccines used solely for occupation and/or travel as Medicaid benefits for the adult population.
SECTION-BY-SECTION SUMMARY
The proposed amendment to §354.1149 removes the exclusion in subsection (a)(9) of the rule for immunizations specifically for travel to or from foreign countries. This change is consistent with the requirements of the IRA of 2022. The proposed amendment renumbers the remaining paragraphs in subsection (a) and makes minor editing changes.
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 will be an estimated additional cost to state government as a result of enforcing and administering the rule as proposed. Enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of local government.
The effect on state government for each year of the first five years the proposed rule is in effect is an estimated cost of $9,405 for all funds in fiscal year (FY) 2025, $9,305 in FY 2026, $9,207 in FY 2027, $9,108 in FY 2028, and $9,012 in FY 2029.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years 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 require an increase in future legislative appropriations;
(4) the proposed rule will not affect fees paid to HHSC;
(5) the proposed rule will not create a new regulation;
(6) the proposed rule will expand existing regulation;
(7) the proposed rule will not change the number of individuals subject to the rule; and
(8) HHSC has insufficient information to determine the proposed rule's effect on 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, microbusinesses, or rural communities because participation in providing the immunizations described in the proposed rule is optional.
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 this rule because the rule is necessary to protect the health, safety, and welfare of the residents of Texas; does not impose a cost on regulated persons; and is necessary to comply with federal law.
PUBLIC BENEFIT AND COSTS
Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rule is in effect, Texas Medicaid clients will have the option of receiving a wider array of vaccines helping to improve the quality of life for many.
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 rules because the proposed rule is optional for facilities to provide the covered immunizations and the proposed rule will provide Medicaid coverage to adult recipients for the additional immunizations.
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 24R026" in the subject line.
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; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and 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.
The amendment affects Texas Government Code §531.0055.
§354.1149.Exclusions and Limitations.
(a) Notwithstanding any other provision of this subchapter, Medicaid services or supplies that are not medically necessary will not be considered for Medicaid reimbursement. The following benefit exclusions and limitations are applicable under the Medicaid program for services provided under this subchapter. They do not apply to Medicaid services provided through the Texas Health Steps Comprehensive Care Program. Additional exclusions and limitations are listed in the Texas Medicaid Provider Procedures Manual. The following benefits are not included in the Texas Medicaid Program:
(1) services provided to any individual who is an inmate in a public institution (except as a patient in a medical institution approved for participation in the Medicaid program), or is a patient in:
(A) the hospital or nursing sections of facilities for persons with intellectual and developmental disabilities; or
(B) an institution for mental disease if the patient is between the ages of 22 and 64;
(2) special shoes or other supportive devices for the feet and ambulation aids (except as provided for in the home health services program);
(3) any services provided by military medical facilities, except:
(A) those military hospitals enrolled to provide inpatient emergency services;
(B) Veterans Administration facilities; or
(C) United States Public Health Service hospitals;
(4) care and treatment related to any condition covered by workers' compensation laws;
(5) care, treatment, or other services by a doctor of dentistry unless:
(A) the recipient's dental diagnosis is causally related to a life-threatening medical condition; or
(B) the treatment is specifically authorized by the Health and Human Services Commission (HHSC) or its designee;
(6) any care or services to the extent that a benefit is paid or payable under Medicare;
(7) any services or supplies provided to an individual before the effective date of designation by HHSC as an eligible recipient or after the effective date of denial as an eligible recipient except orthodontic services that are authorized and initiated while the recipient is eligible for Medicaid may be continued for 36 months after a recipient is no longer Medicaid eligible;
(8) any services or supplies provided in connection with cosmetic surgery except as required for the prompt repair of accidental injury or for improvement of the functioning of a malformed body member;
[(9) immunizations specifically for travel to or from foreign countries. Immunizations included on the immunization schedule approved by the Advisory Committee on Immunization Practices (ACIP) are a benefit unless an immunization is specifically excluded by HHSC;]
(9) [(10)] any services provided by an immediate relative of the eligible recipient or member of the eligible recipient's household except for personal care services;
(10) [(11)] custodial care;
(11) [(12)] any services or supplies provided outside of the United States, except for Medicare deductible and coinsurance amounts subject to the limits specified in §354.1143
of this division [title] (relating to Coordination
of Medicaid with Medicare Parts A, B, and C);
(12) [(13)] any services or supplies
not provided for in this chapter;
(13) [(14)] any services or supplies
not provided for in this chapter for:
(A) the treatment of flat foot conditions and the prescription of supportive devices therefor;
(B) the treatment of subluxations of the foot; or
(C) routine foot care (including the cutting or removal of corns, warts, or calluses, the trimming of nails, and other routine hygiene care);
(14) [(15)] any medical and remedial
care, services, and supplies provided to a hospital inpatient after
total hospitalization-related expenditures under the Medicaid Program
reach $200,000 per recipient, per 12-month benefit period unless the
services are exempted by subparagraphs (A) - (C) of this paragraph.
For the purposes of this limit, "12-month benefit period" means 12
consecutive months beginning November 1 of each year and ending October
31 of the next year. The limit applies to hospitalization-related
services while the recipient is a hospital inpatient regardless of
where the services are provided, how soon within the 12-month period
the limit is reached, and how many hospital stays are involved. For
the purposes of this limit, HHSC or its designee processes and pays
claims, if payable, based on the sequential date of service. The services
exempted from the $200,000 limit are:
(A) covered benefits under §354.1175 of this division
[title] (relating to Organ Transplants);
(B) care, services, and supplies otherwise authorized by HHSC; and
(C) physician services as allowed by Title XIX laws and regulations and state law; and
(15) [(16)] any services or supplies
that are experimental or investigational.
(b) Outpatient Behavioral Health Services. Benefits to an individual for the diagnosis or treatment of mental disease, psychoneurotic, and personality disorders while not confined as an inpatient in a hospital are limited to 30 visits to enrolled practitioners per calendar year. This utilization control limitation may be exceeded when prior authorized on a case-by-case-basis.
(c) Private Room Facilities. Private room facilities are not a benefit unless a facility submits a physician's certification of medical necessity to HHSC or its designee certifying that one of the following conditions is met:
(1) the recipient, based on a medical opinion, has a critical or contagious illness;
(2) the eligible recipient's condition results in undue disturbance to other patients; or
(3) the need for care is emergent and lower cost facilities are not immediately available.
(d) Institutional Care. Separate payments are not made for services and supplies in an institution where the reimbursement formula and vendor payment include such services or supplies as a part of the institutional care.
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 May 29, 2024.
TRD-202402393
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 14, 2024
For further information, please call: (512) 438-4651
SUBCHAPTER G. ADMINISTRATIVE ACTIONS AND SANCTIONS
DIVISION 3. ADMINISTRATIVE ACTIONS AND SANCTIONS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Office of Inspector General (OIG), proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 371, Subchapter G, Division 3, new §371.1721, concerning Recoupment of Overpayments Identified by Inspection.
BACKGROUND AND PURPOSE
The purpose of the proposal is to describe the OIG's inspection procedures related to records requests, inspection processes, notices, final reports, and due process.
Texas Government Code Section 531.102 authorizes the OIG to conduct inspections related to the provision and delivery of all health and human services in Texas to identify fraud, waste, or abuse.
SECTION-BY-SECTION SUMMARY
The proposed new §371.1721(a) summarizes OIG's performance of inspections, including the recovery of overpayments when identified during an inspection.
The proposed new §371.1721(b) describes the procedures related to an inspection records request, including the time deadline required to submit records in response to a records request. The proposed new §371.1721(b) also states that failure to timely produce requested records may result in an OIG enforcement action.
The proposed new §371.1721(c) describes the standards OIG inspections follow, the time scope, notice prior to the start of an inspection, and the opportunity to submit documentation to address an inspection finding. A person, as defined in §371.1 of this chapter, is subject to an OIG inspection.
The proposed new §371.1721(d) specifies the notices OIG sends during an inspection, consisting of the draft inspection report and final inspection report.
The proposed new §371.1721(e) outlines the contents of an inspection final report, including a management response, if any, and any recommendations, findings, or overpayment amounts.
The proposed new §371.1721(f) describes the due process provided to a person subject to an OIG inspection, including the requirements for requesting an administrative hearing at the HHSC Appeals Division.
The proposed new §371.1721(g) specifies the timing and circumstances under which results of an OIG inspection become final.
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 will be an estimated reduction in cost to state government as a result of enforcing and administering the rule as proposed. The effect on state government for each year of the first five years the proposed rule is in effect is an estimated reduction in cost for all funds of $100,000 in fiscal year (FY) 2025, $100,000 in FY 2026, $100,000 in FY 2027, $100,000 in FY 2028, and $100,000 in FY 2029. The estimate for FY 2025 may vary depending on the rule implementation date.
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 rule does not impose any additional costs on small businesses, micro-businesses, or rural communities that are required to comply with the rules.
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 this new rule because it does not impose a cost on regulated persons; is necessary to receive a source of federal funds or comply with federal law; and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.
PUBLIC BENEFIT AND COSTS
Kacy VerColen, OIG Chief of Audits and Inspections, has determined that for each year of the first five years the rule is in effect, the public benefit will be the identification and inspection of fraud, waste, and abuse, in the provision and delivery of health and human services in the state of Texas.
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 an overpayment recovery is a returning of funds that should have never been received, not a cost to the business.
TAKINGS IMPACT ASSESSMENT
OIG 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 HHS Office of Inspector General - Chief Counsel Division, P.O. Box 85200, Austin, Texas 78708, or street address 4601 W. Guadalupe Street, Austin, Texas 78751-3146; or by email to IG_Rules_Comments_Inbox@hhsc.state.tx.us.
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 23R031" in the subject line.
STATUTORY AUTHORITY
The proposed new rule is authorized by Texas Government Code §531.0055(e), which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code §531.102(a), which grants the OIG the responsibility for the prevention, detection, audit, inspection, review, and investigation of fraud, waste, and abuse in the provision and delivery of all health and human services in the state, including services through any state-administered health or human services program that is wholly or partly federally funded, and which provides the OIG with the authority to obtain any information or technology necessary to enable it to meet its responsibilities; Texas Government Code §531.102(a-2), which requires the Executive Commissioner of HHSC to work in consultation with the Office of the Inspector General to adopt rules necessary to implement a power or duty of the office; Texas Government Code §531.102(x), which requires the Executive Commissioner of HHSC, in consultation with the Office of Inspector General, to adopt rules establishing criteria for determining enforcement and punitive actions with regard to a provider who has violated state law, program rules, or the provider's Medicaid provider agreement; Texas Government Code §531.033, which requires the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties under Chapter 531; 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, to administer Medicaid funds, and to adopt rules necessary for the proper and efficient regulations of the Medicaid program; Texas Government Code §531.1131(e), which requires the Executive Commissioner of HHSC to adopt rules necessary to implement §531.1131, including rules establishing due process procedures that must be followed by managed care organizations when engaging in payment recovery efforts as provided by Section 531.1131; and Texas Human Resources Code §32.039, which provides authority to assess administrative penalties and damages and provides due process for persons potentially subject to damages and penalties.
The proposed new rule affects Texas Government Code §531.0055 and Texas Human Resources Code Chapter 32.
§371.1721.Recoupment of Overpayments Identified by Inspection.
(a) Introduction. The OIG conducts inspections related to the provision and delivery of all health and human services in the state. The OIG may recover an overpayment identified in an inspection.
(b) Records.
(1) A person who receives a request for records and documentation for an OIG inspection must provide the records and documentation to the OIG within the time period requested by the OIG or 10 calendar days from the date of receipt of the request, whichever is later, except when OIG determines an element of surprise is critical to the inspection objective. When an element of surprise is critical, the person must provide the records and documentation to OIG when requested.
(2) When requested, a person subject to an OIG inspection must submit a signed and notarized OIG-approved records affidavit that properly authenticates the records provided to OIG as business records pursuant to Texas Rules of Evidence Rule 803(6) and Rule 902(10).
(3) Failure to produce requested records and affidavits may result in an OIG enforcement action under this chapter.
(c) Inspection procedures. During an inspection, the OIG:
(1) follows the Quality Standards for Inspection and Evaluation adopted by the Council of the Inspectors General on Integrity and Efficiency;
(2) limits the scope covered to a five year period;
(3) notifies the person subject to an inspection in writing of the impending inspection not later than the seventh calendar day before the first day of the site visit, if any, except when the OIG determines an element of surprise is critical to the inspection objective; and
(4) permits the person subject to an inspection to produce documentation to address any finding found during an inspection by the date specified by the OIG.
(d) Notice.
(1) Draft inspection report. The OIG delivers the draft inspection report to the person subject to the inspection after field work is completed.
(2) Final inspection report. The OIG delivers a final inspection report to the person subject to the inspection.
(3) Electronic mail. OIG notices may be sent by electronic mail.
(e) Final report. The final inspection report includes:
(1) a statement of compliance with the Quality Standards for Inspection and Evaluation;
(2) the management response, if provided, which may be summarized; and
(3) any recommendations, findings, or overpayment amount.
(f) Management response; overpayments; and due process.
(1) Draft inspection report. A person who is the subject of a draft inspection report may provide a written management response. The OIG must receive the written management response by the date specified by the OIG. The OIG may revise the draft inspection report as needed to incorporate management responses, if provided, or other relevant considerations; or the OIG may issue a final report.
(2) Final inspection report. A person who receives a final inspection report that includes an overpayment amount must:
(A) pay the overpayment amount no later than 60 calendar days after receipt of the final inspection report;
(B) timely request and execute a final payment plan agreement approved by the OIG; or
(C) make a timely request to the OIG for an administrative hearing at the HHSC Appeals Division.
(3) Request for payment plan agreement. A request for a final payment plan agreement must be in writing and received by the OIG no later than 15 calendar days after receipt of the final inspection report.
(4) Request for administrative hearing appeal. A request for an appeal must be in writing and received by the OIG no later than 15 calendar days after receipt of the final inspection report. The request must:
(A) be signed by the person or the person's attorney;
(B) specify the issues, findings, or legal authority being challenged and the basis for each challenge;
(C) for inspection findings that are not being challenged, state whether the person will remit payment no later than 60 calendar days after receipt of the final inspection report or seek a payment plan agreement; and
(D) include a copy of the final inspection report.
(5) Administrative hearing appeal. Upon timely receipt of a written request for appeal that meets the requirements in paragraph (4) of this subsection, the OIG notifies the HHSC Appeals Division of the person's hearing request. The appeal then proceeds pursuant to Chapter 357, Subchapter I of this title (relating to Hearings Under the Administrative Procedure Act).
(g) Scope and effect.
(1) A final inspection report becomes final and unappealable 30 calendar days after the person's receipt of the final inspection report, unless the OIG has received a timely and complete request for an appeal.
(2) If the person has timely and completely requested an appeal, the contested amount of the overpayment becomes final 30 calendar days after the person receives written notice of the appeal results. Recovery of any overpayments at issue on appeal is not initiated until the appeal has been finally determined.
(3) The effect of a final overpayment identified in a final inspection report is to create a final debt in favor of the State of Texas.
(4) Failure to pay a delinquent debt may result in OIG collection efforts or enforcement action under this chapter.
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 May 29, 2024.
TRD-202402392
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: July 14, 2024
For further information, please call: (512) 221-7320