PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 363. COUNTY INDIGENT HEALTH CARE PROGRAM

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §363.1, concerning State Assistance Fund; §363.3, concerning Eligibility Dispute; §363.53, concerning Residence; §363.59, concerning Resources; and §363.101, concerning Basic and Optional Services; and new §363.5, concerning Eligibility of a County for State Assistance.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with House Bill 4510, 88th Legislature, Regular Session, 2023, which authorizes HHSC to require a county to provide certain tax information for the purpose of determining eligibility for state assistance under the County Indigent Health Care Program (CIHCP). This proposal also makes updates to reflect the previous transfer of program administration from the Department of State Health Services (DSHS) to HHSC and other minor administrative edits to improve clarity throughout the chapter.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §363.1, State Assistance Fund, makes updates to refer to "HHSC" rather than "DSHS" and minor administrative edits to clarify rule language that may be confusing to stakeholders and the public.

The proposed amendment to §363.3, Eligibility Dispute, makes updates to refer to "HHSC" rather than "department" and the term "provider of assistance" to "health care provider."

Proposed new §363.5, Eligibility of a County for State Assistance, includes new requirements and guidance for counties to report certain tax information to HHSC in order to be eligible to receive state assistance under CIHCP, as authorized by House Bill 4510. The proposed rule includes the eligibility rules being removed from §363.1(b) and (c) in the proposed amendment to §363.1. This is being done to organize the rules related to eligibility of a county for state assistance into one rule section.

The proposed amendment to §363.53, Residence, clarifies language regarding who can be counted as a county resident with minor administrative edits to clarify language that may be confusing to stakeholders and the public.

The proposed amendment to §363.59, Resources, makes updates to refer to "HHSC" rather than "DSHS" and minor administrative edits to clarify rule language that may be confusing to stakeholders and the public.

The proposed amendment to §363.101, Basic and Optional Services, makes updates to refer to "HHSC" rather than "DSHS" and updates licensing language for Advanced Practice Registered Nurses, certified nurse practitioners, and certified midwives.

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 create a new regulation;

(6) the proposed rules will not expand existing regulations;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood, Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rules do 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 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

Rob Ries, Deputy Executive Commissioner for Family Health Services, has determined that for each year of the first five years the rules are in effect, the public benefit will be compliance with current statute and improved readability of the rule language.

Trey Wood, Chief Financial Officer, 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 the proposed rules do not impose any additional costs or fees.

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 the 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 by e-mail to CIHCP@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, hand-delivered or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 24R050" in the subject line.

SUBCHAPTER A. PROGRAM ADMINISTRATION

26 TAC §§363.1, 363.3, 363.5

STATUTORY AUTHORITY

The amendments and new section 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; Health and Safety Code §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the administration of Health and Safety Code Chapter 1001; Health & Safety Code §§61.006-61.009, which require the establishment of eligibility standards and application, documentation, verification, and reporting procedures for counties in determining eligibility under the program; and Health and Safety Code §61.040(a), which provides that HHSC may require a county to provide certain information for determining eligibility for state assistance under Chapter 61, and §61.040(b), which requires HHSC to prescribe the manner in which a county must provide such information.

The amendments and new section affect Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075 and §§61.006-61.009 and §61.040.

§363.1.State Assistance Fund.

(a) The Health and Human Services Commission (commission) [Department of State Health Services (department)] is responsible for distributing state assistance to eligible counties to the extent appropriated state funds are available.

[(b) The department establishes the eligibility requirements and internal procedures for a county applying for state assistance.]

[(c) The department determines a county's eligibility for state assistance.]

(b) [(d)] The commission [ department] distributes funds to eligible counties based on a maximum annual allocation.

(1) The maximum annual allocation will be based on such factors as spending history, population, and the number of residents living below the Federal Poverty Guideline.

(2) The commission-established [department-established ] allocation of the state assistance funds will distinguish the amount of funds allocated between the counties that [actually] were eligible and received state assistance funds the prior state fiscal year, and other potentially eligible counties.

(3) The commission [Up to the legislatively-mandated or department-established appropriated state assistance funds for each county, the department] may reallocate the unspent funds to eligible counties, up to the appropriated state assistance funds available for each county.

(4) No county can be approved for more than the legislatively mandated [legislatively-mandated] or commission-established [department-established] percent of the appropriated state assistance fund within a state fiscal year.

§363.3.Eligibility Dispute.

(a) If a health care provider [of assistance ] and a governmental entity or hospital district cannot agree on a household's eligibility for assistance, the provider or the governmental entity or hospital district may submit the matter to the Health and Human Services Commission (commission) [department] not later than the 90th day after the eligibility determination was issued.

(b) The health care provider [of assistance ] and the governmental entity or hospital shall submit all relevant information to the commission [department] in accordance with the internal procedures established by the commission [department].

(c) From the information submitted, the commission [department] shall determine the household's eligibility for assistance.

(d) Not later than the 45th day after the receipt of the matter, the commission [department] shall notify each governmental entity or hospital district and the health care provider [of assistance] of the decision and the reasons for the decision.

§363.5.Eligibility of a County for State Assistance.

(a) The Health and Human Services Commission (commission) establishes the eligibility requirements and internal procedures for a county applying for state assistance.

(b) The commission determines a county's eligibility for state assistance.

(c) To be eligible for state assistance under this chapter, a county must provide the following information for September 1 to August 31 of each fiscal year:

(1) the taxable value of property taxable by the county;

(2) the county's applicable general revenue tax levy; and

(3) the amount of sales and use tax revenue received by the county.

(d) A county must submit the information required by subsection (c) of this section:

(1) according to commission guidelines in the program policy manual; and

(2) by the deadline prescribed by the 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 May 24, 2024.

TRD-202402343

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 438-2350

26 TAC §363.53, §363.59

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; Health and Safety Code §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the administration of Health and Safety Code Chapter 1001; Health & Safety Code §§61.006-61.009, which require the establishment of eligibility standards and application, documentation, verification, and reporting procedures for counties in determining eligibility under the program; and Health and Safety Code §61.040(a), which provides that HHSC may require a county to provide certain information for determining eligibility for state assistance under Chapter 61, and §61.040(b), which requires HHSC to prescribe the manner in which a county must provide such information.

The amendments affect Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075 and §§61.006-61.009 and §61.040.

§363.53.Residence.

(a) A person must live in the Texas county where the person [to which he] applies for assistance.

(b) No time limit is placed on a person's absence from the county. If a person proves county residency at application, the person remains a county resident until factual evidence proves otherwise.

(c) A person is not required to live in a county [There are no durational requirements] for any specific period of time to be considered a resident [residency].

(d) A person is not considered a county resident, even if the person lives in the county, if the person:

(1) is [Even if] a student who is a minor; and

(2) is [student lives in the county, the minor student] primarily supported by a parent [his parents,] whose [home] residence is in another county or state[, is not considered a county resident].

(e) A person cannot qualify for county health care assistance from more than one county simultaneously.

(f) A person is not required to have a permanent dwelling or [a] fixed residence in the person's county to be considered a resident.

§363.59.Resources.

(a) Definitions. The following words and terms when used in [within] this section [chapter] shall have the following meanings, unless the context clearly indicates otherwise.

(1) Assets--All items of monetary value owned by an individual, excluding personal possessions.

(2) Resources--Both liquid and non-liquid assets a person can convert to meet his immediate needs. As established by the Health and Human Services Commission (commission) [department ], resources are either countable or exempt.

(A) Liquid resources are resources that are readily negotiable, such as cash, checking or savings accounts, savings certificates, stocks, or bonds.

(B) Non-liquid resources include vehicles, buildings, land, or certain other property.

(3) Accessible resource--A resource that is legally available to the household.

(4) Inaccessible resource--A resource that is not legally available to the household.

(5) Personal possessions--Furniture, appliances, jewelry, clothing, livestock, farm equipment, and other items if the household uses them to meet personal needs essential for daily living.

(6) Real property--Land and any improvements on it.

(7) Fair market value--The amount of money an item would bring if sold in the current local market.

(8) Equity--The fair market value of an item minus all money owed on it and the cost associated with its sale or transfer.

(b) Resource Limit. The total value of non-exempt resources available to the household cannot exceed:

(1) $3,000 for households which include the applicant or a relative living in the home who is aged or disabled; or

(2) $2,000 for all other households.

(c) The following criteria will be used to determine the household's resource limit category.

(1) A related person is a person who meets the Temporary Assistance for Needy Families (TANF) [TANF] relationship criteria, either biologically or by adoption.

(2) An aged person is a person age 60 or older as of the last day of the month for which benefits are being requested.

(3) A disabled person is a person who meets the TANF disability criteria.

(d) In determining eligibility:

(1) a county must not consider the value of the applicant's homestead;

(2) a county must consider as a resource the value of a vehicle under commission-established [department-established ] guidelines;

(3) a county must consider a household ineligible for assistance if [, within three months before application or any time after certification,] the household transfers title of a countable resource for less than its fair market value within three months before application or any time after certification to reach [qualify for assistance, the county must consider the household ineligible for the department-established length of time. This penalty applies if the total of the transferred] resource eligibility guidelines [added to other resources affects eligibility for assistance];

(4) a county must consider as a resource real property other than a homestead and must count that property in determining eligibility;

(5) a county may disregard the applicant's real property if the applicant agrees to the terms of an enforceable obligation negotiated with the county to reimburse the county for all or part of the benefits received under the County Indigent Health Care Program; and

(6) resources from non-household members or [and/or] disqualified household members are excluded, unless a county chooses to include the resources of a person who executed an affidavit of support on behalf of a sponsored alien, as defined in §363.57(a)(4) [at §14.104(a)(4)] of this subchapter (relating to Income) [title], and the resources of the person's spouse, as authorized by Health and Safety Code, §61.008(a)(6).

(e) If a county chooses to include the resources of a person who executed an affidavit of support on behalf of a sponsored alien and the resources of the person's spouse, the county shall adopt written procedures for processing the resources of the sponsor and the sponsor's spouse.

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 24, 2024.

TRD-202402344

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 438-2350

26 TAC §363.101

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; Health and Safety Code §1001.075, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the administration of Health and Safety Code Chapter 1001; Health & Safety Code §§61.006-61.009, which require the establishment of eligibility standards and application, documentation, verification, and reporting procedures for counties in determining eligibility under the program; and Health and Safety Code §61.040(a), which provides that HHSC may require a county to provide certain information for determining eligibility for state assistance under Chapter 61, and §61.040(b), which requires HHSC to prescribe the manner in which a county must provide such information.

The amendment affects Texas Government Code §531.0055 and Texas Health and Safety Code §1001.075 and §§61.006-61.009 and §61.040.

§363.101.Basic and Optional Services.

(a) Except as specified in the Health and Human Services Commission-established [department-established] service exclusions and limitations, counties are required to provide the following basic health care services to eligible households by reimbursing providers of services who meet the requirements of this chapter and the responsible county.

(1) Inpatient hospital services. Services must be medically necessary and:

(A) provided in an acute care hospital;

(B) provided to hospital inpatients;

(C) provided by or under the direction of a physician; and

(D) provided for the care and treatment of patients.

(2) Outpatient hospital services. Services must be medically necessary and:

(A) provided in an acute care hospital or hospital-based ambulatory surgical center;

(B) provided to hospital outpatients;

(C) provided by or under the direction of a physician; and

(D) are diagnostic, therapeutic, or rehabilitative.

(3) Physician services. Services must be medically necessary and provided by a physician in the doctor's office, a hospital, a skilled nursing facility, or elsewhere.

(4) Up to three prescriptions for drugs per recipient per month. New and refilled prescriptions count equally toward this total prescription limit. Drugs must be prescribed by a physician or other practitioner within the scope of practice under law. The quantity of drugs prescribed depends on the prescribing practice of the physician or other practitioner and the needs of the patient.

(5) Skilled nursing facility services (SNF). Services must be medically necessary, ordered by a physician, and provided in a SNF [skilled nursing facility] that provides daily services on an inpatient basis.

(6) Rural health clinic services. Rural health clinic services must be provided in a rural health clinic by a physician, a physician [physician's] assistant (PA), an advanced practice registered nurse (APRN) licensed by the Texas Board of Nursing, such as a certified nurse practitioner, a certified nurse midwife, or other specialized nurse practitioner.

(7) Family planning services. These are preventive health and medical services that assist an individual in controlling fertility and achieving optimal reproductive and general health.

(8) Laboratory and x-ray services. These are technical laboratory and radiological services ordered and provided by, or under the direction of, a physician in an office or a similar facility other than a hospital outpatient department or clinic.

(9) Immunizations. These are given when appropriate.

(10) Medical screening services. These medical services include blood pressure, blood sugar, and cholesterol screening.

(11) Annual physical examinations. These are examinations provided once per calendar year by a physician or a PA[physician's assistant (PA)]. Associated testing, such as mammograms, can be covered with a physician's referral. These services may also be provided by an APRN [Advanced Practice Nurse (APN)] if the services [they] are within the scope of practice of the APRN [APN] in accordance with the standards established by the Texas Board of Nursing [Nurse Examiners and published in 22 Texas Administrative Code, §221.13].

(b) The following services are optional health care services.

(1) Ambulatory surgical center (ASC) services. These services must be provided in a freestanding ASC, and are limited to items and services provided in reference to an ambulatory surgical procedure, including those services on the Center for Medicare & [and] Medicaid Services [(CMS)]-approved list and selected Medicaid-only procedures.

(2) Federally Qualified Health Center (FQHC) services. These services must be provided in an FQHC by a physician, a PA [physician's assistant], an APRN [a nurse practitioner ], a clinical psychologist, or a clinical social worker.

(3) PA [Physician assistant (PA)] services. These services must be medically necessary and provided by a PA under the direction of a physician and may be billed by and paid to the supervising physician.

(4) APRN [Advanced practice nurse (APN)] services. These services must be provided by an APRN licensed by the Texas Board of Nursing as [An APN must be licensed as a registered nurse (RN) within the categories of practice, specifically, ] a certified nurse practitioner, a clinical nurse specialist, a certified nurse midwife[(CNM) and], or a certified registered nurse anesthetist[(CRNA), as determined by the Board of Nurse Examiners]. APRN [APN] services must be medically necessary, provided within the scope of practice of an APRN[APN], and covered in the Texas Medicaid Program.

(5) Counseling services. Psychotherapy services must be medically necessary based on a physician referral, and provided by a licensed professional counselor[(LPC)], a licensed master social worker-advanced clinical practitioner [(LMSW-ACP)], a licensed marriage family therapist[(LMFT)], or a doctorate-level [Ph.D.] psychologist. These services may also be provided based on an APRN [APN] referral if the referral is within the scope of the APRN's [their] practice in accordance with the standards established by the Texas Board of Nursing [Nurse Examiners and published in 22 Texas Administrative Code, §221.13].

(6) Diabetic medical supplies and equipment. These supplies and equipment must be medically necessary and prescribed by a physician. The county may require the supplier to receive prior authorization. Items covered are lancets, alcohol prep pads, syringes, test strips, Humulin [humulin] pens, and glucometers. These supplies and equipment may also be prescribed by an APRN [APN] if this is within the scope of the APRN's [their] practice in accordance with the standards established by the Texas Board of Nursing[Nurse Examiners and published in 22 Texas Administrative Code, §221.13].

(7) Colostomy medical supplies and equipment. These supplies and equipment must be medically necessary and prescribed by a physician. The county may require the supplier to receive prior authorization. Items covered are colostomy bags/pouches; cleansing irrigation kits, paste, or powder; and skin barriers with flange (wafers). These supplies and equipment may also be prescribed by an APRN [APN] if this is within the scope of the APRN's [their ] practice in accordance with the standards established by the Texas Board of Nursing[Nurse Examiners and published in 22 Texas Administrative Code, §221.13].

(8) Durable medical equipment. This equipment must be medically necessary; meet the Medicare/Medicaid requirements; and provided under a written, signed, and dated physician's prescription. The county may require the supplier to receive prior authorization. Items can be rented or purchased, whichever is the least costly. Items covered are crutches, canes, walkers, standard wheel chairs, hospital beds, home oxygen equipment (including masks, oxygen hose, and nebulizers), and reasonable and appropriate appliances for measuring blood pressure. These supplies and equipment may also be prescribed by an APRN [APN] if this is within the scope of the APRN's [their ] practice in accordance with the standards established by the Texas Board of Nursing[Nurse Examiners and published in 22 Texas Administrative Code, §221.13].

(9) Home and community health care services. These services must be medically necessary; meet the Medicare/Medicaid requirements; and provided by a certified home health agency. A plan of care must be recommended, signed, and dated by the recipient's attending physician prior to care being given. A plan of care may also be recommended, signed, and dated by a PA or APRN who is licensed by the Texas Board of Nursing as a certified nurse practitioner or clinical nurse specialist. The county may require prior authorization. Items covered are registered nurse [Registered Nurse] (RN) visits for skilled nursing observation, assessment, evaluation, and treatment provided a physician specifically requests the RN visit for this purpose. A home health aide to assist with administering medication is also covered. Visits made for performing housekeeping services are not covered.

(10) Dental care. These services must be medically necessary and provided by a doctor of dental surgery, a doctor of medicine in dentistry, or a doctor of dental medicine[DDS, a DMD, or a DDM]. The county may require prior authorization. Items covered are an annual routine dental exam and the least costly service for emergency dental conditions for the removal or filling of a tooth due to abscess, infection, or extreme pain.

(11) Vision care, including eyeglasses. The county may require prior authorization. Items covered are one examination of the eyes by refraction and one pair of prescribed glasses every 24 months.

(12) Emergency medical services. These services are ground ambulance transport services. When the client's condition is life-threatening and requires the use of special equipment, life support systems, and close monitoring by trained attendants while en route to the nearest appropriate facility, ground ambulance transport is an emergency service.

(13) Physical therapy services. These services must be medically necessary and may be covered if provided in a physician's office, a therapist's office, in an outpatient rehabilitation or freestanding rehabilitation facility, or in a licensed hospital. Services must be within the provider's scope of practice, as defined by Texas Occupations Code Chapter 453.

(14) Occupational therapy services. These services must be medically necessary and may be covered if provided in a physician's office, a therapist's office, in an outpatient rehabilitation or free-standing rehabilitation facility, or in a licensed hospital. Services must be within the provider's scope of practice, as defined by Texas Occupations Code Chapter 454.

(15) Other medically necessary services or supplies that the local governmental municipality/entity determines to be cost effective.

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 24, 2024.

TRD-202402345

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: July 7, 2024

For further information, please call: (512) 438-2350