Proposed Rules Title 1

TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §351.4, concerning Health and Human Services Commission Executive Council; §351.11, concerning Reports on Efforts to Streamline and Simplify Delivery of Services; §351.504, concerning Caseload Reduction Plan for Adult Protective Services; §351.507, concerning Adverse Licensing, Listing, or Registration Decisions by Health and Human Services Agencies; §351.701, concerning Unrelated Donor Umbilical Cord Blood Bank Program; §351.751, concerning Integrated eligibility services call centers; §351.801, concerning Authority and General Provisions; §351.807, concerning Behavioral Health Advisory Committee; §351.809, concerning Drug Utilization Review Board; §351.811, concerning Intellectual and Developmental Disability System Redesign Advisory Committee; §351.821, concerning Value-Based Payment and Quality Improvement Advisory Committee; §351.823, concerning e-Health Advisory Committee; §351.825, concerning Texas Brain Injury Advisory Council; §351.827, concerning Palliative Care Interdisciplinary Advisory Council; and §351.841, concerning Joint Committee on Access and Forensic Services.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendments update the affected citations to the Texas Government Code.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Services 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 on small businesses, micro-businesses, or rural communities that are required to comply with the rules because the amendments only update references to existing laws.

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

Libby Elliott, Deputy Executive Commissioner, Office of Policy and Rules, has determined that for each year of the first five years the rules are in effect, the public will benefit from rules that accurately cite the laws governing HHSC, Medicaid, and other social 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 the amendments only update references to existing laws.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to the owner's 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 24R084" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §§351.4, 351.11, 351.504, 351.507, 351.701, 351.751

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, and Chapters 521, 523, 525, 542, 546, and 549.

The amendments affect Texas Government Code §531.0055 and Chapters 521, 523, 525, 542, 546, and 549.

§351.4.Health and Human Services Commission Executive Council.

(a) Statutory authority. Texas Government Code §523.0101 [~~§531.0051~~] establishes the Health and Human Services Commission Executive Council and requires the Executive Commissioner to adopt rules for its operation.

(b) Applicability of Texas Government Code Chapter 2110. The Health and Human Services Commission Executive Council is not subject to Texas Government Code Chapter 2110.

(c) Applicability of Texas Government Code Chapter 551. The Health and Human Services Commission Executive Council is not subject to Texas Government Code Chapter 551.

(d) Definitions. For the purpose of this section, the following terms are defined as follows:

(1) Executive Commissioner--The executive commissioner of the Health and Human Services Commission.

(2) Executive Council--The Health and Human Services Commission Executive Council.

(3) Health and Human Services system--All state agencies and departments under and including the Health and Human Services Commission.

(4) HHSC--The Health and Human Services Commission.

(e) Purpose. The Executive Council is established to receive public input and advise the Executive Commissioner regarding the operation of the Health and Human Services system.

(f) Tasks. The Executive Council reviews policies related to the operation of the HHS system.

(1) The Executive Council seeks and receives public comment on:

(A) proposed rules;

(B) recommendations of advisory committees established under Subchapter B of this Chapter (relating to Advisory Committees);

(D) the operation of health and human services programs; and

(E) other items the Executive Commissioner determines appropriate.

(2) The Executive Council does not have the authority to make administrative or policy decisions.

(g) Membership. The members of the Executive Council serve at the pleasure of the Executive Commissioner.

(1) The Executive Council is composed of:

(A) the Executive Commissioner;

(B) the director of each HHSC division established under Texas Government Code §523.0151(a) [~~§531.008(c)~~];

(D) other individuals appointed by the Executive Commissioner.

(2) When appointing members under paragraph (1)(D) of this subsection, the Executive Commissioner will make every effort to ensure that those appointments result in Executive Council membership that includes:

(A) a balanced representation of a broad range of health and human services industry and consumer interests; and

(B) representation from broad geographic regions of the State of Texas.

(3) Members appointed under paragraph (1)(D) of this subsection are subject to the restrictions applicable to service on the Executive Council provided by Texas Government Code §523.0104(b) [~~§531.006(a-1)~~].

(4) Terms. Members appointed under paragraph (1)(D) of this subsection will serve three-year terms.

(A) No more than half of the terms of members appointed under paragraph (1)(D) of this subsection shall expire in a single state fiscal year.

(B) If more than half of the members appointed under paragraph (1)(D) of this subsection have terms beginning in the same state fiscal year, members will draw for two- or three-year terms. Subsequent terms will be for a period of two years.

(h) Presiding officer. The Executive Commissioner serves as the chair of the Executive Council.

(i) Meetings. The Executive Council meets at the call of the Executive Commissioner, at least quarterly.

(1) A meeting of the individual members of the Executive Council that occurs in the ordinary course of Health and Human Services system operations is not a meeting of the Executive Council, and the provisions of subsection (j) of this section do not apply.

(2) Live video transmissions of each meeting will be publicly available through the HHSC website.

(j) Public notice. The Executive Council will give public notice of the date, time, and place of each meeting.

(k) Quorum. A majority of the members of the Executive Council constitutes a quorum for the transaction of business.

(l) Reimbursement and compensation. Members appointed under subsection (g)(1)(D) of this section may not receive compensation but are entitled to reimbursement for travel expenses incurred while conducting the business of the Executive Council, as provided by the Texas General Appropriations Act.

§351.11.Reports on Efforts to Streamline and Simplify Delivery of Services.

(a) Applicability. This section applies to state health and human services agencies as defined in Texas Government Code §521.0001 [~~§531.001(4), Government Code~~].

(b) Quarterly Reports.

(1) The executive head of each health and human services agency shall report quarterly to the governing body of the agency on the agency's efforts to streamline and simplify the delivery of services.

(2) The reports shall be presented at the governing body's regular meetings in March, June, September, and December for efforts during the previous three months. If the governing body of the agency does not hold a meeting in the designated month, then the report shall be presented at the next meeting after the designated month.

(3) Each agency shall submit a copy of the report to the Health and Human Services Commission within 15 days from the date the report was submitted to the agency's governing body.

(1) Information to be included in the report and the report format will be defined by the Health and Human Services Commission, and will include descriptions of activities that relate to streamlining and simplifying of the delivery of services.

(2) Activities that streamline and simplify the delivery of services may include, but are not limited to the following:

(A) consolidation, coordination, streamlining or simplification of administrative or support functions, including use of automation or the Internet;

(B) state/local collaborations or partnerships;

(D) cost-efficiency or cost-effectiveness initiatives;

(E) efforts to streamline or simplify service delivery at one or more of the following stages:

(i) planning;

(ii) eligibility determination;

(iii) intake or enrollment;

(iv) outreach, marketing, or education;

(v) implementation;

(vi) case management or referral;

(vii) quality assurance; or

(viii) evaluation;

(F) other efforts that increase consumer satisfaction.

§351.504.Caseload Reduction Plan for Adult Protective Services.

(a) Applicability. This section applies to the development by the executive commissioner of HHSC of a Caseload Reduction Plan (the Plan) for the Adult Protective Services (APS) Division of the Department of Family and Protective Services as required by Texas Government Code §526.0401 [~~§531.048, Government Code~~].

(b) Purpose of the Plan. The purpose of the Plan is to reduce caseloads for adult protective services caseworkers to a level that does not exceed professional caseload standards recommended by the National Adult Protective Services Association by more than five cases per worker by January 1, 2011. The Plan must include annual targets for caseload reduction.

(1) APS program description.

(2) Assessment of program and demographic data using historic and forecasted information.

(3) Internal and external influences and impact of those influences.

(4) APS policy and operational factors influencing caseloads.

(5) Identification of options to reduce caseloads.

(6) Program impact of caseload reduction options.

(7) Resource needs and cost impact for caseload reduction options.

(8) Consultation with stakeholders.

(d) Report. Beginning in 2006, not later than December 31 of each even numbered year, a report will be prepared on the APS Caseload Reduction Plan including the amount of funding necessary in the next biennium to fully implement the Plan. The report will be provided to the governor, lieutenant governor, speaker of the house of representatives, and the presiding officer of each house and senate standing committee having jurisdiction over adult protective services.

§351.507.Adverse Licensing, Listing, or Registration Decisions by Health and Human Services Agencies.

(a) This section applies only to the final licensing, listing, or registration decisions of a health and human services agency as defined by Texas Government Code §521.0001 [~~§531.001(4), Government Code~~], with respect to a person under the law authorizing the agency to regulate the following types of persons:

(1) a youth camp licensed under Chapter 141, Health and Safety Code;

(2) a home and community support services agency licensed under Chapter 142, Health and Safety Code;

(3) a hospital licensed under Chapter 241, Health and Safety Code;

(4) an institution licensed under Chapter 242, Health and Safety Code;

(5) an assisted living facility licensed under Chapter 247, Health and Safety Code;

(6) a special care facility licensed under Chapter 248, Health and Safety Code;

(7) an intermediate care facility licensed under Chapter 252, Health and Safety Code;

(8) a chemical dependency treatment facility licensed under Chapter 464, Health and Safety Code;

(9) a mental hospital or mental health facility licensed under Chapter 577, Health and Safety Code;

(10) a child-care facility or child-placing agency licensed under or a family home listed or registered under Chapter 42, Human Resources Code; or

(11) an adult day-care facility licensed under Chapter 103, Human Resources Code.

(b) This section applies only to an agency decision that has become final after all opportunities for appeal have been exhausted or waived.

(c) Each health and human services agency that regulates a person described by subsection (a) of this section must maintain a record of:

(1) each application for a license, including a renewal license or a license that does not expire, a listing, or a registration that is denied by the agency under the law authorizing the agency to regulate the person; and

(2) each license, listing, or registration that is revoked, suspended, or terminated by the agency under the applicable law.

(d) The record of an application required by subsection (c)(1) of this section must be maintained until the tenth anniversary of the date the application is denied. The record of the license, listing, or registration required by subsection (c)(2)of this section must be maintained until the tenth anniversary of the date of the revocation, suspension, or termination.

(e) The record required under subsection (c) of this section must include:

(1) the name and address of the applicant for a license, listing, or registration that is denied as described by subsection (c)(1) of this section;

(2) the name and address of each person listed in the application for a license, listing, or registration that is denied as described by subsection (c)(1) of this section;

(3) the name of each person determined by the applicable regulatory agency to be a controlling person of an entity for which an application, license, listing, or registration is denied, revoked, suspended, or terminated as described by subsection (c) of this section;

(4) the specific type of license, listing, or registration that was denied, revoked, suspended, or terminated by the agency;

(5) the reasons for the denial, revocation, suspension, or termination; and

(6) the period the denial, revocation, suspension, or termination was effective.

(f) Each health and human services agency that regulates a person described in subsection (a) of this section each month must provide a copy of the records maintained under this section to each other health and human services agency that regulates a person described by subsection (a) of this section. The Health and Human Services Commission (HHSC) may access the records provided or maintained under this section.

§351.701.Unrelated Donor Umbilical Cord Blood Bank Program.

(a) Purpose. This section establishes a program to award funding for an unrelated donor umbilical cord blood bank in Texas.

(b) Funding objectives. The funding awarded pursuant to this section is intended to improve public health in Texas through obtaining efficiently delivered services for gathering and retaining unrelated umbilical cord blood from live births for the primary purpose of making the cord blood available for transplantation purposes.

(c) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

(1) Blood bank--A facility that:

(A) obtains a human umbilical cord blood donation from an unrelated donor;

(B) is licensed, certified, or accredited as a blood bank, blood and tissue center, laboratory, or other health care facility and is authorized by:

(i) state and/or federal law, rule, or regulation;

(ii) the American Association of Blood Banks; and

(iii) International Organization of Standardization to collect, process, and preserve human umbilical cord blood donations; and

(C) is operated in compliance with professionally recognized standards regarding quality and safety of collection of human umbilical cord blood donations, including the American Association of Blood Banks and International Organization of Standardization.

(2) Commission--The Texas Health and Human Services Commission or its designee.

(3) Contractor--The recipient of the funding awarded under this section.

(4) Donation--Human umbilical cord blood obtained from an unrelated donor and resulting from a live birth.

(5) Services--Umbilical cord blood collection, storage, preservation, and/or processing services provided by a blood bank.

(6) Unrelated donor--A person who:

(A) is legally authorized or competent;

(B) voluntarily provides a donation; and

(C) is not related by affinity or consanguinity (as determined under Chapter 573, Texas Government Code) to the recipient of the donation.

(7) Unrelated Donor Umbilical Cord Blood Bank Program or Program--The Contractor-operated public blood bank program that provides for gathering and retaining umbilical cord blood for transplantation to recipients who are unrelated to the blood donors.

(d) General conditions of the funding. The funding awarded pursuant to this section, and any extension, continuation, or addition to such funding, is subject to:

(1) the availability of appropriated state funds;

(2) an award process as established by the commission;

(3) the requirements of Texas Government Code Chapter 521 [~~Chapter 531, Texas Government Code~~], and any administrative rules adopted thereunder, including Chapter 391 of this title (relating to Purchase of Goods and Services by the Texas Health and Human Services Commission);

(4) the requirements of the contract executed by the commission with the Contractor as required under subsection (f) of this section; and

(5) an audit by the commission, the State Auditor's Office, or an entity approved by the commission of the Contractor's performance of the services or compliance with applicable auditing standards and State and federal law;

(e) Applicant eligibility criteria. To be eligible for the funding awarded under this section, a blood bank must, at a minimum, demonstrate:

(1) the ability to establish, operate, and maintain an unrelated donor umbilical cord blood bank in Texas and to provide related services, including experience operating similar facilities in this state.

(2) possession of an appropriate, current license, certification, or certificate of good standing to operate as a blood bank from the American Association of Blood Banks and International Organization of Standardization;

(3) a plan to continue the operation of the unrelated donor umbilical cord blood bank beyond the term of the contract required by subsection (f) of this section, including an appropriate financial plan;

(4) the financial stability and resources sufficient to ensure the achievement of the funding objectives and operation of the unrelated donor umbilical cord blood bank;

(5) appropriate skills, qualifications, financial resources, and experience necessary to perform the services and provide the deliverables (both of which are specified in the contract entered under subsection (f) of this section) in an efficient and cost-effective manner, with the highest degree of quality and responsiveness within the context of the requirements of the contract; and

(6) policies relating to non-discrimination regarding the selection and treatment of donors and recipients of donations on the basis of race, sex, national origin, or ability to pay.

(f) Contract. The Contractor must enter into a contract with the commission that requires, among other things, the Contractor to:

(1) operate and maintain an unrelated donor umbilical cord blood bank in this state in accordance with standards described in subsection (c)(1) of this section;

(2) gather, collect, and preserve umbilical cord blood from live births only;

(3) comply with any financial or reporting requirements imposed on the Contractor specified in the contract; and

(4) comply with all applicable federal and state laws and their implementing regulations.

§351.751.Integrated eligibility services call centers.

(a) Applicability. This section applies to integrated eligibility services call centers established by the Health and Human Services Commission ("HHSC") after June 1, 2004.

(b) Definitions. The following words and phrases, when used in this section, have the following meanings, unless the context clearly indicates otherwise:

(1) "Applicant" means a person who asks HHSC to determine, certify, or recertify his or her eligibility for a service.

(2) "Call center" means a place where HHSC or an HHSC contractor receives and responds to applicants' telephone inquiries and processes information in order to assist HHSC to determine, certify, or recertify an applicant's eligibility for a service.

(3) "Contractor" means a public or private entity that is awarded a contract to provide call center services under this section.

(4) "Service" means a benefit or assistance provided under any of the following programs:

(A) the Children's Health Insurance Program ("CHIP") established under Chapter 62, Health and Safety Code;

(B) the Temporary Assistance to Needy Families ("TANF") program established under Chapter 31, Human Resources Code;

(D) the nutritional assistance programs established under Chapter 33, Human Resources Code, including the Food Stamp Program;

(E) long-term care services, as defined by Section 22.0011, Human Resources Code;

(F) community-based support services identified or provided in accordance with Texas Government Code §546.0152 [~~Section 531.02481, Government Code~~]; and

(G) any other health and human services program that HHSC determines is appropriate to include as part of a call center service.

(1) HHSC must establish at least one but not more than four call centers if HHSC determines that it is cost-effective to establish such call centers subject to subsections (c)(2) through (c)(4) of this section.

(2) Subject to subsection (d), HHSC must contract with at least one but not more than four private entities for the operation of call centers identified in subsection (c)(1) of this section, unless HHSC determines that contracting is not cost effective.

(3) HHSC must operate any call center identified under subsection (c)(1) of this section that it determines is not cost effective to contract with a private entity to operate.

(4) All eligibility calls, including overflow calls, will be processed through call centers located in Texas.

(5) Each call center established under this section must provide translation and interpretation services as required by federal law.

(6) HHSC will conduct one or more public hearings around the state before it establishes any call center under this section.

(d) Contracting requirements.

(1) Any contract for call center services will be competitively procured in compliance with Section 2155.144, Government Code; HHSC administrative rules codified at 1 TAC chapter 391; and applicable federal laws and regulations.

(2) Any contract for call center services that HHSC awards under this section must include, at a minimum:

(A) Performance requirements that describe the specific services to be performed by a contractor;

(B) Terms and conditions that are expressly required by state or federal laws, rules or regulations; and

(C) Any other provision that HHSC determines is necessary or beneficial to the State of Texas including, but not limited to, HHSC's Uniform Contract Terms and Conditions published on the HHSC Internet web site.

(e) Performance standards and measurement.

(1) HHSC must develop performance standards to govern the operation of each call center that address, at a minimum:

(A) The call center's ability to serve consumers in a timely manner;

(B) Quality and accuracy of eligibility determinations conducted through the call center;

(D) The call center's management of consumer and public complaints;

(E) Consumer satisfaction with the call center's services;

(F) The accessibility and usability of eligibility call center web sites, including compliance with 1 TAC §206.2, Accessibility and Usability of State Web Sites, and Texas Government Code §525.0252 [~~Government Code §531.0162, Use of Technology~~]; and

(G) Any other standard that HHSC determines is necessary to ensure the desired or expected levels and quality of call center services.

(2) HHSC must develop mechanisms for measuring the operation of each call center and to evaluate call centers' compliance with all performance standards.

(3) HHSC may establish performance standards and measurements for a contracted call center under a competitive procurement

(4) HHSC will publish all call center performance standards and measures.

(f) Establishment of eligibility by personal appearance.

(1) This subsection does not apply to an applicant whose eligibility must be established or who must be certified or recertified through a face-to-face interview under federal law or to an applicant for CHIP services.

(2) An applicant may request the opportunity to appear in person to establish initial eligibility for a service or for certification or recertification purposes.

(3) If an applicant wishes to appear personally to assist HHSC to determine, certify, or recertify his or her eligibility for a service, the applicant must notify HHSC or the health and human services agency that administers the program. An applicant may provide notice in any of the following ways:

(A) In person at an office of the health and human services agency that administers the program;

(B) In writing by using materials that HHSC provides for this purpose or by any other written method;

(D) By an electronic method that HHSC creates for this purpose, including facsimile and electronic mail.

(4) HHSC or its contractor will schedule a personal appearance upon request unless HHSC can establish the applicant's eligibility without a personal appearance. The personal appearance will be scheduled at a time and location that reasonably accommodates the applicant's schedule, location, and circumstances.

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 October 31, 2024.

TRD-202405178

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER B. ADVISORY COMMITTEES

DIVISION 1. COMMITTEES

1 TAC §§351.801, 351.807, 351.809, 351.811, 351.821, 351.823, 351.825, 351.827, 351.841

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 521, 523, 525, 542, 546, and 549.

§351.801.Authority and General Provisions.

(a) Authority to establish advisory committees. In addition to specific statutory authority to establish particular advisory committees, the Texas Health and Human Services Commission has authority under Texas Government Code §523.0201 [~~§531.012~~ ] to establish and maintain advisory committees to consider issues and solicit public input across all major areas of the health and human services system.

(b) Applicability of Texas Government Code Chapter 2110. An advisory committee established under Texas Government Code §523.0201 [~~§531.012~~] is subject to Texas Government Code Chapter 2110. An advisory committee established under another statute is subject to Texas Government Code Chapter 2110 unless the establishing statute expressly states otherwise.

(c) Applicability of Texas Government Code Chapter 551. Unless otherwise expressly provided by statute or rule, an advisory committee established under this subchapter is subject to the Open Meetings Act, Texas Government Code Chapter 551, as if it were a governmental body.

(d) Quorum. Unless expressly provided otherwise, a majority of an advisory committee's voting members constitutes a quorum.

(e) General reporting requirement. In addition to reporting requirements set out in an advisory committee's section of this subchapter, an advisory committee established under Texas Government Code §523.0201 [~~§531.012~~] must:

(1) report recommendations to the Executive Commissioner and the Health and Human Services Commission Executive Council; and

(2) submit a written report to the Texas Legislature of any policy recommendations made under paragraph (1) of this subsection.

(f) Geographic diversity generally. As necessary and appropriate, the members of an advisory committee established under Texas Government Code §523.0201 [~~§531.012~~] will be appointed with a view to having committee members from diverse geographic areas of the state.

(g) Definitions. For purposes of this subchapter, the following terms are defined as follows:

(1) C.F.R.--Code of Federal Regulations.

(2) CHIP--The Texas State Children's Health Insurance Program established under Title XXI of the federal Social Security Act (42 U.S.C. §§1397aa, et seq.) and Chapter 62 of the Texas Health and Safety Code.

(3) Executive Commissioner--The HHSC Executive Commissioner.

(4) Family member--A parent, spouse, grandparent, adult sibling, adult child, guardian, or legally authorized representative.

(5) Health and Human Services system--The Texas Health and Human Services Commission and the Texas Department of State Health Services. For purposes of this subchapter, the term also may include the Texas Department of Family and Protective Services, where appropriate.

(6) HHSC--The Texas Health and Human Services Commission, or its designee.

(7) U.S.C.--United States Code.

§351.807.Behavioral Health Advisory Committee.

(a) Statutory authority. The Behavioral Health Advisory Committee (BHAC) is established under Texas Government Code §523.0201 [~~, §531.012~~] in accordance with the State's obligations under 42 U.S.C. §300x-3, and is subject to §351.801 of this subchapter (relating to Authority and General Provisions).

(b) Purpose. The BHAC advises the HHSC Executive Commissioner on mental health and substance use disorder services in Texas.

(c) Tasks. The BHAC considers and makes recommendations to the Executive Commissioner consistent with the committee's purpose.

(d) Reporting requirements. The BHAC submits an annual written report to the Executive Commissioner and the Texas Legislature of any policy recommendations made to the Executive Commissioner.

(e) Open meetings. The BHAC complies with the requirements for open meetings under Texas Government Code, Chapter 551.

(f) Membership. The BHAC is composed of 19 voting members appointed by the Executive Commissioner and one ex officio member.

(1) The BHAC consists of representatives of the following constituencies:

(A) one adult who received, or is receiving, services for mental health or co-occurring mental health and substance use issues;

(B) one adult who received, or is receiving, services for substance use or co-occurring mental health and substance use issues;

(C) one youth/young adult who received, or is receiving, services for mental health, substance use, or co-occurring mental health and substance use issues;

(D) one family representative of someone who has received, or is receiving services for mental health, substance use, or co-occurring mental health and substance use issues;

(E) one parent of a child who has received, or is receiving, services for serious emotional disturbance;

(F) one certified peer provider;

(G) one representative nominated by the Texas Council of Community Centers;

(H) one representative nominated by the Association of Substance Abuse Programs;

(I) two independent community behavioral health service providers, one of which provides services to families;

(J) two behavioral health advocates or representatives of behavioral health advocacy organizations;

(K) one representative from a faith-based community organization;

(L) one representative of a managed care organization that contracts with HHSC;

(M) two representatives of local government;

(N) one representative from a federally recognized Native American tribe located in Texas (Alabama-Coushatta Tribe of Texas, The Kickapoo Traditional Tribe of Texas, or Ysleta Del Sur Pueblo); and

(O) up to two additional members who have demonstrated an interest in mental and substance use disorders health systems and a working knowledge of mental and substance use disorder health issues.

(2) A member of the Statewide Behavioral Health Coordinating Council, representing state agencies providing behavioral health services or funding, will serve as a non-voting, ex officio member.

(3) Members are appointed for staggered terms so that the terms of an equal or almost equal number of members expire on August 31st of each year. Each member is appointed to serve a term of three years. Regardless of term limit, a member serves until his or her replacement has been appointed. This ensures sufficient, appropriate representation.

(4) If a vacancy occurs, a person is appointed to serve the unexpired portion of that term.

(5) This subsection does not apply to ex officio members, who serve at the pleasure of the Executive Commissioner.

(g) Presiding officers. The BHAC selects a chair and co-chair of the committee from its members.

(1) Unless reelected, the chair and co-chair each serve a term of one year.

(2) A member serves no more than two consecutive terms as chair or co-chair. A chair or co-chair may not serve beyond their membership term.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter and Texas Government Code §523.0201[~~, §531.012~~], and Chapters 551 and 2110. Training will be provided by HHSC.

(i) Date of abolition. The BHAC is required by federal law and will continue as long as the federal law that requires it remains in effect.

§351.809.Drug Utilization Review Board.

(a) Statutory authority. 42 C.F.R. §456.716 and Texas Government Code Chapter 549, Subchapter G requires [~~§531.0736 require~~] HHSC to establish the Drug Utilization Review (DUR Board).

(b) Cross-reference. The DUR Board is governed by rules set out in §354.1941 of this title (relating to Drug Utilization Review Board).

§351.811.Intellectual and Developmental Disability System Redesign Advisory Committee.

(a) Statutory authority. Texas Government Code §542.0052 [~~§534.053~~] establishes the Intellectual and Developmental Disability System Redesign Advisory Committee (IDD-SRAC).

(b) Purpose. IDD-SRAC advises HHSC and the Texas Department of Aging and Disability Services (DADS) on the implementation of the acute care services and long-term services and supports system redesign.

(1) provides recommendations for the continued implementation of and improvements to the acute care and long-term services and supports system; and

(2) performs other tasks consistent with its purpose as requested by the Executive Commissioner.

(d) Reporting requirements. The IDD-SRAC includes its recommendations in an annual report that HHSC prepares and submits to the Texas Legislature in compliance with Texas Government Code §542.0054 [~~§534.054~~]. The report is due on or before September 30th of 2018, 2019, and 2020.

(e) Abolition. The IDD-SRAC is abolished, and this section expires, on the one-year anniversary of the date HHSC completes the transition required by Texas Government Code §542.0201 [~~§534.202~~] or January 1, 2026, whichever comes first.

(f) Membership.

(1) Each member of the IDD-SRAC is appointed jointly by the Executive Commissioner and the Commissioner of the Texas Department of Aging and Disability Services.

(2) Membership is allocated consistently with Texas Government Code §542.0052 [~~§534.053~~].

(3) Members serve at the will of the Executive Commissioner and the Commissioner of the Texas Department of Aging and Disability Services.

(g) Presiding officer. The Executive Commissioner appoints a presiding officer.

§351.821.Value-Based Payment and Quality Improvement Advisory Committee.

(a) Statutory authority. The Value-Based Payment and Quality Improvement Advisory Committee (VBPQIAC) is established under Texas Government Code §523.0201 [~~§531.012~~] and is subject to §351.801 of this division (relating to Authority and General Provisions).

(b) Purpose. The VBPQIAC advises the Texas Health and Human Services (HHSC) Executive Commissioner and Health and Human Services system agencies (HHS agencies) on quality improvement and value-based payment initiatives for Medicaid, other publicly funded health services, and the wider health care system.

(1) studies and makes recommendations regarding:

(A) value-based payment and quality improvement initiatives to promote better care, better outcomes, and lower costs for publicly funded health care services;

(B) core metrics and a data analytics framework to support value-based purchasing and quality improvement in Medicaid and CHIP;

(D) the strategic direction for Medicaid and CHIP value-based programs; and

(2) adopts bylaws to guide the operation of the committee; and

(3) pursues other deliverables consistent with its purpose to improve quality and efficiency in state health care services as requested by the HHSC Executive Commissioner or adopted into the work plan or bylaws of the committee.

(d) Reporting Requirements.

(1) No later than December 31st of each year, the VBPQIAC files an annual written report with the HHSC Executive Commissioner covering the meetings and activities in the immediately preceding year. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(D) a description of how the committee accomplished its tasks;

(E) a description of the activities the VBPQIAC anticipates undertaking in the next year;

(F) recommended amendments to this section; and

(G) the costs related to the VBPQIAC, including the cost of HHSC staff time spent supporting the VBPQIAC's activities and the source of funds used to support the VBPQIAC's activities.

(2) No later than December 1st of each even-numbered year, the VBPQIAC submits a written report to the HHSC Executive Commissioner and Texas Legislature that:

(A) describes current trends and identifies best practices in health care for value-based payment and quality improvement; and

(B) provides recommendations consistent with the purposes of the VBPQIAC.

(e) Meetings.

(1) Open meetings. The VBPQIAC complies with the requirements for open meetings under Texas Government Code Chapter 551, as if it were a governmental body.

(2) Frequency. The VBPQIAC will meet at least twice each year.

(3) Quorum. A majority of members constitutes a quorum for the purpose of transacting official business. (To calculate a majority for a committee with an even number of members, divide the membership by two and add one; for a committee with an odd number of members, divide the membership by two and round up to the next whole number.)

(f) Membership.

(1) The VBPQIAC is composed of 19 voting members and up to four non-voting ex officio members appointed by the HHSC Executive Commissioner. In selecting members to serve on the VBPQIAC, HHSC considers the applicants' qualifications, background, and interest in serving.

(A) The 19 voting members represent the following categories:

(i) Medicaid managed care organizations;

(ii) hospitals;

(iii) physicians;

(iv) nurses;

(v) pharmacies;

(vi) providers of long-term services and supports;

(vii) academic systems; and

(viii) other disciplines or organizations with expertise in health care finance, delivery, or quality improvement.

(B) Four non-voting, ex officio members may be appointed to the VBPQIAC as determined by the HHSC Executive Commissioner.

(2) In selecting voting members, the Executive Commissioner considers ethnic and minority representation and geographic representation.

(3) Members are appointed for staggered terms so that the terms of an equal or almost equal number of members expire on December 31 of each year. Regardless of the term limit, a member serves until his or her replacement has been appointed. This ensures sufficient, appropriate representation.

(A) If a vacancy occurs, the HHSC Executive Commissioner will appoint a person to serve the unexpired portion of that term.

(B) Except as necessary to stagger terms, the term of each member is four years. A member may apply to serve one additional term.

(C) This subsection does not apply to ex officio members, who serve at the pleasure of the HHSC Executive Commissioner and do not have the authority to vote on items before the full committee.

(g) Officers. The VBPQIAC selects a chair and vice chair of the committee from among its members.

(1) The chair serves until December 31 of each odd-numbered year. The vice chair serves until December 31 of each even-numbered year.

(2) A member may serve up to two consecutive terms as chair or vice chair.

(3) A member is not eligible to serve in the role of chair or vice chair once another person has been appointed to fill the member's position on the VBPQIAC.

(h) Required Training. Each member must complete training on relevant statutes and rules, including this section, §351.801 of this division, Texas Government Code §523.0201 [~~§531.012~~ ], Texas Government Code Chapters 551, 552, and 2110, the HHS Ethics Policy, and other relevant HHS policies. Training will be provided by HHSC.

(i) Travel Reimbursement. Unless permitted by the current General Appropriations Act, members of the VBPQIAC are not paid to participate in the VBPQIAC nor reimbursed for travel to and from meetings.

(j) Date of abolition. The VBPQIAC is abolished and this section expires on December 31, 2027.

§351.823.e-Health Advisory Committee.

(a) Statutory authority. The e-Health Advisory Committee (committee) is established under Texas Government Code §523.0201 [~~§531.012~~] and is subject to §351.801 of this division (relating to Authority and General Provisions).

(b) Purpose. The committee advises the Texas Health and Human Services Commission (HHSC) Executive Commissioner and Health and Human Services system agencies (HHS agencies) on strategic planning, policy, rules, and services related to the use of health information technology, health information exchange systems, telemedicine, telehealth, and home telemonitoring services.

(1) advises HHS agencies on the development, implementation, and long-range plans for health care information technology and health information exchange, including the use of electronic health records, computerized clinical support systems, health information exchange systems for exchanging clinical and other types of health information, and other methods of incorporating health information technology in pursuit of greater cost-effectiveness and better patient outcomes in health care and population health;

(2) advises HHS agencies on incentives for increasing health care provider adoption and usage of an electronic health record and health information exchange systems;

(3) advises HHS agencies on the development, use, and long-range plans for telemedicine, telehealth, and home telemonitoring services, including consultations, reimbursements, and new benefits for inclusion in Medicaid telemedicine, telehealth, and home telemonitoring programs;

(4) makes recommendations to HHS agencies through regularly scheduled meetings and verbal or written recommendations communicated to HHSC staff assigned to the committee;

(5) performs other tasks consistent with its purpose as requested by the Executive Commissioner; and

(6) adopts bylaws to guide the operation of the committee.

(d) Reporting Requirements.

(1) No later than December 1 of each even-numbered year, the committee files a written report with the HHSC Executive Commissioner and the Texas Legislature covering the meetings and activities not covered in its most recent report filed with the HHSC Executive Commissioner and Texas Legislature through September 30 of the even-numbered year the report is due to be filed. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(D) a description of how the committee accomplished its tasks;

(E) a summary of the status of any rules that the committee recommended to HHSC;

(F) a description of activities the committee anticipates undertaking in the next fiscal year;

(G) recommended amendments to this section;

(H) any policy recommendations; and

(I) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.

(2) No later than December 1 of each odd-numbered year, the committee submits to the HHSC Executive Commissioner an informational briefing memorandum describing the committee's costs, accomplishments, and areas of focus that covers October 1 of the preceding year through September 30 of the odd-numbered year the informational briefing memorandum is due to be filed.

(e) Meetings.

(1) Open meetings. The committee complies with the requirements for open meetings under Texas Government Code Chapter 551, as if it were a governmental body.

(2) Frequency. The committee will meet at least three times a year at the call of the presiding officer.

(3) Quorum. A majority of members constitutes a quorum.

(f) Membership.

(1) The committee is composed of no more than 24 members appointed by the HHSC Executive Commissioner. In selecting members to serve on the committee, HHSC considers the applicants' qualifications, background, and interest in serving.

(2) The committee includes representatives of HHS agencies, other state agencies, and other health and human services stakeholders concerned with the use of health information technology, health information exchange systems, telemedicine, telehealth, and home telemonitoring services. The committee comprises the following voting and non-voting ex officio members:

(A) Voting members representing the following categories:

(i) at least one representative from the Texas Medical Board;

(ii) at least one representative from the Texas Board of Nursing;

(iii) at least one representative from the Texas State Board of Pharmacy;

(iv) at least one representative from the Statewide Health Coordinating Council;

(v) at least one representative of a managed care organization;

(vi) at least one representative of the pharmaceutical industry;

(vii) at least one representative of a health science center in Texas;

(viii) at least one expert on telemedicine;

(ix) at least one expert on home telemonitoring services;

(x) at least one representative of consumers of health services provided through telemedicine;

(xi) at least one Medicaid provider or child health plan program provider;

(xii) at least one representative from the Texas Health Services Authority established under Texas Health and Safety Code Chapter 182;

(xiii) at least one representative of a local or regional health information exchange; and

(xiv) at least one representative with expertise related to the implementation of electronic health records, computerized clinical support systems, and health information exchange systems for exchanging clinical and other types of health information.

(B) Non-voting ex officio members representing the following categories:

(i) at least two non-voting ex officio representatives from HHSC; and

(ii) at least one non-voting ex officio representative from the Texas Department of State Health Services.

(3) When appointing members, the HHSC Executive Commissioner considers the cultural, ethnic, and geographic diversity of Texas, including representation from at least 6 of the 11 Public Health Regions as defined by the Texas Department of State Health Services in accordance with Texas Health and Safety Code §121.007.

(4) Members are appointed for staggered terms so that the terms of half of the members expire on December 31st of each year. Regardless of the term limit, a member serves until the member's replacement has been appointed. This ensures sufficient, appropriate representation.

(A) If a vacancy occurs, the HHSC Executive Commissioner appoints a person to serve the unexpired portion of that term.

(B) Except as may be necessary to stagger terms, the term of each member is two years. A member may apply and be appointed for a second two-year term, which may be served consecutively or nonconsecutively.

(C) This section does not apply to non-voting ex officio members, who serve at the pleasure of the HHSC Executive Commissioner.

(g) Officers. The committee selects from its members the presiding officer and an assistant presiding officer.

(1) The presiding officer serves until July 1st of each even-numbered year. The assistant presiding officer serves until July 1 of each odd-numbered year.

(2) A member may serve up to two consecutive terms as presiding officer or assistant presiding officer.

(3) A member whose term has expired is not eligible to serve in the officer role of chair or vice chair once another person has been appointed to fill the member's position on the committee.

(h) Required Training. Each member must complete training on relevant statutes and rules, including this section; §351.801 of this subchapter; Texas Government Code §523.0201 [~~§531.012~~]; Texas Government Code Chapters 551, 552, and 2110; the HHS Ethics Policy, and other relevant HHS policies. Training will be provided by HHSC.

(i) Travel Reimbursement. Unless permitted by the current General Appropriations Act, members of the committee are not paid to participate in the committee nor reimbursed for travel to and from meetings.

(j) Date of abolition. The committee is abolished and this section expires on December 31, 2025.

§351.825.Texas Brain Injury Advisory Council.

(a) Statutory authority. The Texas Brain Injury Advisory Council (TBIAC) is established under Texas Government Code §523.0201 [~~§531.012~~] and is subject to §351.801 of this division (relating to Authority and General Provisions).

(b) Purpose. The TBIAC advises the Texas Health and Human Services Commission (HHSC) Executive Commissioner and the Health and Human Services system on strategic planning, policy, rules, and services related to the prevention of brain injury; rehabilitation; and the provision of long-term services and supports for persons who have survived brain injuries to improve their quality of life and ability to function independently in the home and community.

(1) informs state leadership of the needs of persons who have survived a brain injury and their families regarding rehabilitation and the provision of long-term services and supports to improve health and functioning that leads to achieving maximum independence in home and community living and participation;

(2) encourages research into the causes and effects of brain injuries as well as promising and best practice approaches for prevention, early intervention, treatment and care of brain injuries and the provision of long-term services and supports;

(3) recommends policies that facilitate the implementation of the most current promising and evidence-based practices for the care, rehabilitation, and the provision of long-term services and supports to persons who have survived a brain injury;

(4) promotes brain injury awareness, education, and implementation of health promotion and prevention strategies across Texas;

(5) facilitates the development of partnerships among diverse public and private provider and consumer stakeholder groups to develop and implement sustainable service and support strategies that meet the complex needs of persons who have survived a brain injury and those experiencing co-occurring conditions; and

(6) adopts bylaws to guide the operation of the TBIAC.

(d) Reporting requirements.

(1) Reporting to the HHSC Executive Commissioner. By November 1 of each year, the TBIAC files an annual written report with the HHSC Executive Commissioner covering the meetings and activities in the immediately preceding fiscal year and reports any recommendations to the HHSC Executive Commissioner at a meeting of the Texas Health and Human Services Commission Executive Council. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(D) a description of how the TBIAC accomplished its tasks;

(E) a description of activities the TBIAC anticipates undertaking in the next fiscal year;

(F) recommendations made by the TBIAC, if any;

(G) recommended amendments to this section; and

(H) the costs related to the TBIAC, including the cost of HHSC staff time spent supporting the TBIAC's activities and the source of funds used to support the TBIAC's activities.

(2) Reporting to Texas Legislature. The TBIAC shall submit a written report to the Texas Legislature of any policy recommendations made to the HHSC Executive Commissioner by December 1 of each even-numbered year.

(e) Meetings.

(1) Open Meetings. The TBIAC complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body.

(2) Frequency. The TBIAC will meet quarterly.

(3) Quorum. Eight members constitute a quorum.

(f) Membership.

(1) The TBIAC is composed of 15 members appointed by the HHSC Executive Commissioner representing the categories below. In selecting members to serve on the TBIAC, HHSC considers the applicants' qualifications, background, geographic location, and interest in serving.

(A) One representative from acute hospital trauma units.

(B) One representative from post-acute rehabilitation facilities.

(D) One healthcare practitioner or service provider who has specialized training or interest in the prevention of brain injuries or the care, treatment, and rehabilitation of persons who have survived a brain injury.

(E) One representative of an institution of higher education engaged in research that impacts persons who have survived a brain injury.

(F) Five persons who have survived a brain injury representing diverse ethnic or cultural groups and geographic regions of Texas, with:

(i) at least one of these being a transition age youth (age 18-26);

(ii) at least one of these being a person who has survived a traumatic brain injury; and

(iii) at least one of these being a person who has survived a non-traumatic brain injury.

(G) Four family members actively involved in the care of loved ones who have sustained a brain injury, with:

(i) at least one of these being a person whose loved one has survived a traumatic brain injury; and

(ii) at least one of these being a person whose loved one has survived a non-traumatic brain injury.

(H) One representative from the stroke committee of the Governor's Emergency Medical Services (EMS) & Trauma Advisory Council or other stakeholder group with a focus on stroke.

(2) Members are appointed for staggered terms so that the terms of five, or almost five, members expire on December 31 of each year. Regardless of the term limit, a member serves until his or her replacement has been appointed. This ensures sufficient, appropriate representation.

(A) If a vacancy occurs, the HHSC Executive Commissioner will appoint a person to serve the unexpired portion of that term.

(B) Except as may be necessary to stagger terms, the term of each member is three years. A member may apply to serve one additional term.

(g) Officers. The TBIAC selects a chair and vice chair of the TBIAC from among its members. The chair or the vice chair must be a person who has survived a brain injury or a family member actively involved in the care of a loved one who has survived a brain injury.

(1) The chair serves until December 31 of each even-numbered year. The vice chair serves until December 31 of each odd-numbered year.

(2) A member may serve up to two consecutive terms as chair or vice chair.

(h) Required Training. Each member must complete training on relevant statutes and rules, including this section and §351.801 of this division; Texas Government Code §523.0201 [~~§531.012~~ ], Chapters 551, 552, and 2110; the HHS Ethics Policy; the Advisory Committee Member Code of Conduct; and other relevant HHS policies. Training will be provided by HHSC.

(i) Travel Reimbursement. To the extent permitted by the current General Appropriations Act, a member of the TBIAC may be reimbursed for their travel to and from meetings if funds are appropriated and available and in accordance with the HHSC Travel Policy.

(j) Date of abolition. The TBIAC is abolished and this section expires on July 1, 2028, in compliance with Texas Government Code §2110.008(b).

§351.827.Palliative Care Interdisciplinary Advisory Council.

(a) Statutory authority. The Palliative Care Interdisciplinary Advisory Council (Council) is established in accordance with Texas Health and Safety Code Chapter 118.

(b) Purpose. The Council assesses the availability of patient-centered and family-focused, interdisciplinary team-based palliative care in Texas for patients and families facing serious illness. The Council works to ensure that relevant, comprehensive, and accurate information and education about palliative care is available to the public, health care providers, and health care facilities. This includes information and education about complex symptom management, care planning, and coordination needed to address the physical, emotional, social, and spiritual suffering associated with serious illness.

(1) consults with and advises HHSC on matters related to the establishment, maintenance, operation, and outcome evaluation of the palliative care consumer and professional information and education program established under Texas Health and Safety Code §118.011;

(2) studies and makes recommendations to remove barriers to appropriate palliative care services for patients and families facing serious illness in Texas of any age and at any stage of illness; and

(3) pursues other deliverables consistent with its purpose as requested by the Executive Commissioner or adopted into the work plan or bylaws of the council.

(d) Reporting requirements.

(1) Reporting to Executive Commissioner. By December 31 of each year, the Council files a written report with the Executive Commissioner that covers the meetings and activities in the immediately preceding fiscal year. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(D) a description of how the committee accomplished its tasks;

(E) a summary of the status of any rules that the committee recommended to HHSC;

(F) a description of activities the committee anticipates undertaking in the next fiscal year;

(G) recommended amendments to this section; and

(H) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.

(2) Reporting to Executive Commissioner and Texas Legislature. By October 1 of each even-numbered year, the Council submits a written report to the Executive Commissioner and the standing committees of the Texas senate and house with primary jurisdiction over health matters. The report:

(A) assesses the availability of palliative care in Texas for patients in the early stages of serious disease;

(B) analyzes barriers to greater access to palliative care;

(C) analyzes policies, practices, and protocols in Texas concerning patients' rights related to palliative care, including:

(i) whether a palliative care team member may introduce palliative care options to a patient without the consent of the patient's attending physician or practitioner;

(ii) the practices and protocols for discussions between a palliative care team member and a patient on life-sustaining treatment or advance directives decisions; and

(iii) the practices and protocols on informed consent and disclosure requirements for palliative care services; and

(D) provides recommendations consistent with the purposes of the Council.

(e) Open meetings. The Council complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body.

(f) Membership.

(1) The Council is composed of at least 15 voting members appointed by the Executive Commissioner and nonvoting agency, ex officio representatives as determined by the Executive Commissioner. Total membership on the Council will not exceed 24.

(2) Voting membership.

(A) The Council must include:

(i) at least five physician members, including:

(I) two who are board certified in hospice and palliative care; and

(II) one who is board certified in pain management;

(ii) three palliative care practitioner members, including:

(I) two advanced practice registered nurses who are board-certified in hospice and palliative care; and

(II) one physician assistant who has experience providing palliative care;

(iii) four health care professional members, including:

(I) a nurse;

(II) a social worker;

(III) a pharmacist; and

(IV) a spiritual-care professional; and

(iv) at least three members:

(I) with experience as an advocate for patients and the patients' family caregivers;

(II) who are independent of a hospital or other health care facility; and

(III) at least one of whom represents an established patient advocacy organization.

(B) Health care professional members listed in subparagraph (A)(iii) of this paragraph must meet one or more of the following qualifications:

(i) experience providing palliative care to pediatric, youth, or adult populations;

(ii) expertise in palliative care delivery in an inpatient, outpatient, or community setting; or

(iii) expertise in interdisciplinary palliative care.

(C) In selecting voting members, the Executive Commissioner considers ethnic and minority representation and geographic representation.

(D) Members are appointed to staggered terms so that the terms of approximately one-quarter of the members' terms expire on December 31 of each year.

(E) Except as necessary to stagger terms, the term of each voting member is four years.

(g) Officers. The Council selects from its members a presiding officer and an assistant presiding officer.

(1) The presiding officer serves until December 31 of each odd-numbered year. The assistant presiding officer serves until December 31 of each even-numbered year.

(2) The presiding officer and the assistant presiding officer remain in their positions until the Council selects a successor; however, the individual may not remain in office past the individual's membership term.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter (relating to Authority and General Provisions) and Texas Government Code §523.0201 [~~§531.012~~], and Texas Government Code Chapters 551 and 2110. HHSC will provide the training.

(i) Abolition. The Council is required by statute and will continue as long as the state law that requires it remains in effect.

§351.841.Joint Committee on Access and Forensic Services.

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

(1) Executive Commissioner--The Executive Commissioner of the Texas Health and Human Services Commission or the Executive Commissioner's designee.

(2) Forensic patient--The term has the meaning described in Texas Health and Safety Code Chapter 532.013.

(3) Forensic services--A competency examination, competency restoration service, or mental health service provided to a current or former forensic patient in the community or at a facility that receives state funds for providing mental health services for forensic patients.

(4) HHSC--The Texas Health and Human Services Commission.

(5) JCAFS--The Joint Committee on Access and Forensic Services.

(b) Statutory authority. JCAFS is authorized by:

(1) Texas Health and Safety Code §533.051(c), which defines membership requirements and prescribes the duties of the JCAFS; and

(2) Texas Health and Safety Code §533.0515, which authorizes the Executive Commissioner to adopt rules as necessary to implement its provisions.

(1) make recommendations and monitor implementation of updates to a bed day allocation methodology;

(2) make recommendations and monitor implementation of a utilization review protocol for state funded beds in hospitals and other inpatient mental health facilities; and

(3) make recommendations to improve access to mental health services for both civil and forensic patients throughout the full continuum of care from institution to community-based settings.

(d) Tasks. The JCAFS considers and makes recommendations to the Executive Commissioner consistent with the committee's purpose as stated in subsection (c) of this section.

(e) Reporting requirements. The JCAFS submits:

(1) a written report to the Executive Commissioner, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the Senate Finance Committee, the House Appropriations Committee and the standing committees of the legislature having jurisdiction over mental health and human services by December 1 of each even-numbered year, in accordance with Texas Health and Safety Code §533.0515(e); and

(2) a proposal for an updated bed day allocation methodology and bed day utilization review protocol to the Executive Commissioner no later than December 1 of each even-numbered year, in accordance with Texas Health and Safety Code §533.015.

(f) Open meetings. The JCAFS complies with the requirements for open meetings under Texas Government Code Chapter 551.

(g) Membership. The JCAFS is composed of 17 members nominated by the designating organization and appointed by the Executive Commissioner. A majority of the voting members of the JCAFS constitutes a quorum. Each member serves until a replacement is nominated by the designating organization and appointed by the Executive Commissioner.

(1) The membership consists of:

(A) one Texas Department of Criminal Justice-designated representative;

(B) one Texas Association of Counties-designated representative;

(C) two Texas Council of Community Centers-designated representatives, including one representative of an urban local service area and one representative of a rural local service area;

(D) two County Judges and Commissioners Association of Texas-designated representatives, one of which is the presiding judge of a court with jurisdiction over mental health matters;

(E) one Sheriffs' Association of Texas-designated representative;

(F) two Texas Municipal League-designated representatives, one of which is a municipal law enforcement official;

(G) one Texas Conference of Urban Counties-designated representative;

(H) two Texas Hospital Association-designated representatives, one of which is a physician;

(I) one representative designated by an organization identified by HHSC representing individuals with lived experience receiving publicly funded mental health services; and

(J) four representatives designated by the HHSC Behavioral Health Advisory Committee (BHAC), or its successor:

(i) including the chair of the BHAC;

(ii) one representative of the BHAC's members who is a consumer of or advocate for mental health services;

(iii) one representative of the BHAC's members who is a consumer of or advocate for substance abuse treatment; and

(iv) one representative of the BHAC's members who is a family member of or advocate for persons with mental health and substance abuse disorders.

(2) The HHSC Forensic Director and the State Hospital Chief of Forensic Medicine serve as non-voting ex officio members of the JCAFS.

(h) Officers. The JCAFS selects from among its members, a presiding chair and vice-chair. Unless re-elected, the term of the presiding chair and vice-chair is one year. The chair and vice-chair will each serve no more than three one-year terms in each position.

(i) Required training. Each member shall complete all training on relevant statutes and rules, including this section, §351.801 of this subchapter (relating to Authority and General Provisions), Texas Government Code §523.0201 [~~§531.012~~], and Texas Government Code Chapters 551 and 2110. Training will be provided by HHSC.

(j) Date of abolition. The JCAFS will not be abolished as long as the Texas Health and Safety Code §533.051 and §533.0515 remain in effect because the JCAFS is established by statute.

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 October 31, 2024.

TRD-202405179

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 352. MEDICAID AND CHILDREN'S HEALTH INSURANCE PROGRAM PROVIDER ENROLLMENT

1 TAC §352.1, §352.3

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §352.1, concerning Purpose; and §352.3, concerning Definitions.

BACKGROUND AND PURPOSE

FISCAL NOTE

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.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 521 and 532.

§352.1.Purpose.

(a) The enrollment of providers in Medicaid and the Children's Health Insurance Program (CHIP) is conducted under the authority of the Texas Health and Human Services Commission (HHSC), and is administered by HHSC or its designee.

(b) The enrollment requirements in this chapter are consistent with:

(1) Title 42, Part 455, of the Code of Federal Regulations (CFR); and

(2) Texas Government Code Chapter 532 [~~Chapter 531 of the Government Code~~].

(1) Title 1, Texas Administrative Code (TAC), Part 15 (relating to Texas Health and Human Services Commission).

(2) Policy publications issued by HHSC or a health and human services agency, such as:

(A) the Texas Medicaid Provider Procedures Manual;

(B) each Medicaid managed care program provider or operating manual;

(D) each health and human services agency program handbook; and

(E) each policy update and policy explanation (such as provider banners, bulletins, and quarterly updates).

(3) 40 TAC Part 1 (relating to Department of Aging and Disability Services).

(4) 40 TAC Part 2 (relating to Department of Assistive and Rehabilitative Services).

(5) 25 TAC Part 1 (relating to Department of State Health Services).

§352.3.Definitions.

The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Applicant--An individual or an entity that submits an enrollment application to enroll or re-enroll as a provider or to enroll a new practice location in Medicaid or CHIP as described in paragraph (7) of this section.

(2) CHIP--The Texas State Children's Health Insurance Program established under Title XXI of the federal Social Security Act (42 U.S.C. §§1397aa, et seq.) and Chapter 62 of the Health and Safety Code.

(3) Change of ownership--A change of ownership related to a partnership, sole proprietorship, corporation, or leasing arrangement as defined in 42 CFR §489.18.

(4) Designee--An entity to which HHSC has delegated certain functions for provider enrollment purposes. A designee may include:

(A) an HHSC contractor;

(B) a health and human services agency; or

(5) Disenroll--To end a provider's participation in Medicaid or CHIP before the end of the provider's current enrollment period.

(6) Enrollment--The process for applying to become a provider, including contracting and procedures for determining whether to grant approval to enter into a provider agreement.

(7) Enrollment application--Documentation required by HHSC that an applicant submits to HHSC to enroll or re-enroll as a provider or to add a new practice location. An enrollment application includes supplemental forms used to add practice locations for Medicare-enrolled or limited-risk providers, as determined by HHSC.

(8) Enrollment type--A type of enrollment category that identifies how the applicant seeks to enroll, such as individual, group, performing provider, or facility.

(9) Entity--A provider group, a facility, an organization, or a business registered with the Texas Secretary of State.

(10) Health care practitioner--A physician or non-physician licensed or certified health care provider who is recognized by federal law or by HHSC as a provider who can bill for medical services or benefits, submits orders or referrals for services to treat, certifies medical need for services, or supervises other individuals providing services and benefits to Medicaid or CHIP recipients.

(11) Health and human services agency--A state agency identified in Texas Government Code §521.0001(5) [~~§531.001(4) of the Government Code~~].

(12) HHSC--The Texas Health and Human Services Commission or its designee.

(13) Medicaid--The medical assistance program, a state and federal cooperative program authorized under Title XIX of the Social Security Act that pays for certain medical and health care costs for people who qualify.

(14) National Provider Identifier--A unique ten-digit identification number assigned by the Centers for Medicare & Medicaid Services.

(15) Overpayment--A payment made to a provider in excess of the amount that is allowable for the service provided, plus any accrued interest.

(16) Person with an ownership or control interest--Has the meaning assigned by §371.1003 of this title (relating to Definitions).

(17) Provider--An applicant that successfully completes the enrollment process outlined in this chapter and in Chapter 371 of this title (relating to Medicaid and Other Health and Human Services Fraud and Abuse Program Integrity).

(18) Provider agreement--An agreement between HHSC and a provider wherein the provider agrees to certain contract provisions as a condition of participation.

(19) Re-enrolling provider--A provider that submits an enrollment application before the end of the provider's current enrollment period.

(20) Recipient--A person receiving benefits under Medicaid or CHIP.

(21) Surety bond--One or more bonds issued by one or more surety companies under 31 U.S.C. §§9304 - 9308 and 31 CFR parts 223, 224, and 225.

(22)Terminate--To take an adverse action against a provider whose participation in Medicaid or CHIP has ended at federal or state agency direction due to violation of state rules or federal regulations.

(23) Third-party billing vendor--A vendor registered with HHSC or its designee that submits claims for reimbursement on behalf of a provider.

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 October 31, 2024.

TRD-202405180

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 353. MEDICAID MANAGED CARE

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §353.8, concerning Certification of Managed Care Organizations Prior to Contract Awards; §353.101, concerning Purpose; §353.201, concerning Purpose; §353.407, concerning Requirements of Managed Care Plans; §353.425, MCO Processing of Prior Authorization Requests Received with Incomplete or Insufficient Documentation; §353.427, Accessibility of Information Regarding Medicaid Prior Authorization Requirements; §353.501, concerning Purpose; §353.901, concerning Purpose; §353.905, concerning Managed Care Organization Requirements; §353.1153, concerning STAR+PLUS Home and Community Based Services (HCBS) Program; §353.1155, concerning Medically Dependent Children Program; and §353.1451, concerning Purpose and Authority.

BACKGROUND AND PURPOSE

FISCAL NOTE

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.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

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 24R084" in the subject line.

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §353.8

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.8.Certification of Managed Care Organizations Prior to Contract Awards.

(a) As provided by Texas Government Code §540.0203 [~~§533.0035 of the Texas Government Code~~], the Texas Health and Human Services Commission (HHSC) awards a contract under [~~Chapter 533 of the~~] Texas Government Code Chapter 540 to a managed care organization (MCO) only if the MCO has been certified by HHSC as reasonably able to fulfill the terms of the contract, including all requirements of applicable federal and state law.

(b) HHSC determines whether to certify an MCO following the evaluation of the proposals submitted in response to a solicitation. Certification and the certification determination process described in this section do not impact an MCO's final score in the evaluation, but failure to obtain certification results in no further consideration of the MCO for the contract award.

(1) materials submitted by the MCO in response to the solicitation;

(2) materials related to the MCO's past performance in any state, including materials required to be monitored by a state's managed care program under 42 C.F.R. §438.66(c); and

(3) any additional information and assurances requested by HHSC from the MCO for purposes of the certification determination.

(d) HHSC provides notice of approval or denial of certification by electronic mail to an MCO. A notice of denial sets forth the reasons for the denial of certification. If an MCO is denied certification, the MCO may appeal the denial by submitting an appeal to the solicitation's sole point of contact no later than 10 business days after the date HHSC transmits the notice of denial of certification.

(e) An appeal must specifically address the reasons for the denial of the certification as stated in the notice of denial and precisely state the argument, authorities, and evidence the MCO offers in support of its appeal.

(f) To resolve an appeal, HHSC:

(1) dismisses the appeal as untimely;

(2) upholds the denial of certification; or

(3) reverses the denial of certification and certifies the MCO as reasonably able to fulfill the terms of the contract, including all requirements of applicable federal and state law.

(g) After the expiration of the appeal period and the resolution of any pending appeals, MCOs that obtained the required certification will proceed to the next phase of the contract award process.

(h) HHSC's determination whether to certify that an MCO is reasonably able to fulfill the terms of a contract is not a contested case proceeding under the Texas Administrative Procedure Act, Texas Government Code, Chapter 2001.

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 October 31, 2024.

TRD-202405181

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER B. PROVIDER AND MEMBER EDUCATION PROGRAMS

1 TAC §353.101

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.101.Purpose.

This subchapter implements the Health and Human Services Commission's authority to establish provider and member education requirements for managed care organizations participating in the Texas Medicaid program. This authority is granted in Texas Government Code §540.0054 [~~§531.0211~~].

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 October 31, 2024.

TRD-202405182

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER C. MEMBER BILL OF RIGHTS AND RESPONSIBILITIES

1 TAC §353.201

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.201.Purpose.

This subchapter implements the Health and Human Services Commission's authority to adopt a member bill of rights and responsibilities. This authority is granted in Texas Government Code §532.0301 [~~§531.0212~~].

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 October 31, 2024.

TRD-202405183

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER E. STANDARDS FOR MEDICAID MANAGED CARE

1 TAC §§353.407, 353.425, 353.427

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.407.Requirements of Managed Care Plans.

(a) Entities or individuals who subcontract with an MCO to provide benefits, perform services, or carry out any essential function of the MCO contract must meet the same qualifications and contract requirements as the MCO for the service, benefit, or function delegated under the subcontract.

(b) An MCO must reimburse a Federally Qualified Health Center (FQHC), a Rural Health Clinic (RHC), or a municipal health department's public clinic for health care services provided to a member outside of regular business hours, as defined at §353.2 of this title (relating to Definitions), at a rate that is equal to the allowable rate for those services as determined under §32.028(e) and (f), Human Resources Code, if the member does not have a referral from the member's primary care provider.

(c) An MCO must comply with HHSC's policy on contracting and subcontracting with historically underutilized businesses (HUBs). HHSC's policy is to meet the goals and good faith effort requirements as stated in the Comptroller of Public Accounts rules at 34 TAC Chapter 20, Subchapter B (relating to Historically Underutilized Business Program).

(d) An MCO must contract with advance practice registered nurses and physician assistants as primary care providers in compliance with Texas Government Code §540.0269 [~~§533.005(a)(13)~~].

(e) Beginning March 1, 2015, an MCO must provide Medicaid benefits to nursing facility residents and reimburse nursing facility providers in compliance with Texas Government Code §540.0752(b) [~~§533.00251(c)~~].

§353.425.MCO Processing of Prior Authorization Requests Received with Incomplete or Insufficient Documentation.

(a) The rules in this section apply when a prior authorization (PA) request is submitted with incomplete or insufficient information or documentation on behalf of a member who is not hospitalized at the time of the request.

(b) In this section, "incomplete PA request" means a request for service that is missing information or documentation necessary to establish medical necessity as listed in the PA requirements on the managed care organization's (MCO's) website.

(c) An MCO must comply with Title 42 Code of Federal Regulations §438.210, applicable provisions of Texas Government Code Chapter 540 [~~533~~], and the PA process and timeline requirements included in an MCO's contract with the Texas Health and Human Services Commission (HHSC).

(d) If an MCO or an entity reviewing a request on behalf of an MCO receives a PA request with incomplete or insufficient information or documentation, the MCO or reviewing entity must comply with the following HHSC requirements.

(1) An MCO reviewing the request must notify the requesting provider and the member, in writing, of the missing information no later than three business days after the MCO receives an incomplete PA request.

(2) If an MCO does not receive the information requested within three business days after the MCO notifies the requesting provider and the PA request will result in an adverse benefit determination, the MCO must refer the PA request to the MCO medical director for review.

(3) The MCO must offer to the requesting physician an opportunity for a peer-to-peer consultation with a physician no less than one business day before the MCO issues an adverse benefit determination.

(4) The MCO must make a final determination as expeditiously as the member's condition requires but no later than three business days after the date the missing information is provided to an MCO.

(e) The HHSC requirements for MCO reconsideration of an incomplete PA request do not affect any related timeline for:

(1) an MCO's internal appeal process;

(2) a Medicaid state fair hearing;

(3) a review conducted by an external medical reviewer; or

(4) any rights of a member to appeal a determination on a PA request.

§353.427.Accessibility of Information Regarding Medicaid Prior Authorization Requirements.

(a) In this section, "accessible" means publicly available and capable of being found and read without impediment. Usernames and passwords cannot be required to view the information.

(b) A managed care organization (MCO) must maintain on its public-facing website the MCO's criteria and policy for prior authorizations and website links to any prior authorization request forms the provider uses.

(1) Applicable timelines for prior authorization requirements, including:

(A) the timeframe in which the MCO must make a determination on a prior authorization request;

(B) a description of the notice the MCO provides to a provider or member regarding the documentation required to complete a prior authorization determination; and

(2) An accurate and up-to-date catalogue of coverage criteria and prior authorization requirements, including:

(A) the effective date of a prior authorization requirement, if the requirement is first imposed on or after September 1, 2019;

(B) a list or description of any supporting or supplemental documentation necessary to obtain prior authorization for a specified service; and

(C) the date and results of each annual review of the MCO's prior authorization requirements as required by Texas Government Code §540.0304 [~~§533.00283(a)~~].

(3) The process and contact information for a provider or member to contact the MCO to:

(A) clarify prior authorization requirements; and

(B) obtain assistance in submitting a prior authorization request.

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 October 31, 2024.

TRD-202405184

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER F. SPECIAL INVESTIGATIVE UNITS

1 TAC §353.501

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.501.Purpose.

(a) This subchapter implements the Health and Human Services Commission's (HHSC), Office of Inspector General (OIG) authority to approve annually, each managed care organization (MCO) plan to prevent and reduce waste, abuse, and fraud. This authority is granted by Texas Government Code §544.0352 [~~Chapter 531, Subchapter C, Government Code, §531.113~~].

(b) An MCO that provides or arranges for the provision of health care services or dental services to an individual under the Medical Assistance Program (Medicaid), must arrange for a special investigative unit to investigate fraudulent claims and other types of program abuse by recipients and providers. An MCO may choose to:

(1) establish and maintain the special investigative unit within the MCO; or

(2) contract with another entity for the investigation.

(1) develop a plan to prevent and reduce waste, abuse, and fraud;

(2) submit the plan annually to the HHSC-OIG for approval each year the MCO is enrolled with the State of Texas; and

(3) submit the plan 90 days before the start of the State fiscal year.

(d) If HHSC-OIG does not approve the initial plan to prevent and reduce waste, abuse, and fraud, the MCO must resubmit the plan to HHSC-OIG within 15 working days of receiving the denial letter, which will explain the deficiencies. If the plan is not resubmitted within the time allotted, the MCO will be in default and remedies or sanctions may be imposed.

(e) If the MCO elects to contract with another entity for the investigation of fraudulent claims and other types of program abuse as referenced in subsection (b)(2) of this section, the MCO must comply with all requirements of Title 42, §438.230 of the Code of Federal Regulations.

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 October 31, 2024.

TRD-202405185

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER J. OUTPATIENT PHARMACY SERVICES

1 TAC §353.901, §353.905

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.901.Purpose.

The purpose of this subchapter is to implement the requirements of Texas Government Code §540.0273 [~~§533.005~~], which establishes requirements for providing outpatient pharmacy benefits through Medicaid managed care. This subchapter applies to health care managed care organizations.

§353.905.Managed Care Organization Requirements.

(a) A health care managed care organization (health care MCO) must adopt and exclusively use the Health and Human Services Commission's (HHSC's) Medicaid formulary and preferred drug list.

(b) A health care MCO is not authorized to negotiate rebates for covered outpatient drugs with drug manufacturers, or to receive confidential drug pricing regarding covered outpatient drugs from drug manufacturers.

(c) A health care MCO cannot pay claims submitted by a pharmacy provider who is under sanction or exclusion from the Medicaid or CHIP Programs.

(d) Except as provided in subsection (e) of this section, a health care MCO must enter into a network provider agreement with any pharmacy provider that meets the health care MCO's credentialing requirements, and agrees to the health care MCO's financial terms and other reasonable administrative and professional terms.

(e) A health care MCO can enter into selective pharmacy provider agreements for specialty drugs, as defined in §354.1853 of this title (relating to Specialty Drugs), subject to the following limitations:

(1) A health care MCO is prohibited from entering into an exclusive contract for specialty drugs with a pharmacy owned in full or part by a pharmacy benefits manager contracted with the health care MCO.

(2) The selective contracting agreement cannot require the pharmacy provider to contract exclusively with the health care MCO.

(3) A health care MCO cannot require a member to obtain a specialty drug from a mail-order pharmacy.

(f) A health care MCO must allow pharmacy providers to fill prescriptions for covered outpatient drugs ordered by any licensed prescriber regardless of the prescriber's network participation.

(g) A health care MCO must pay claims in accordance with Texas Insurance Code §843.339, relating to prescription drug claims payment requirements.

(h) A health care MCO must comply with Texas Government Code §540.0273 [~~§533.005(a)(23), (a-1), and (a-2) of the Government Code~~] related to outpatient pharmacy benefit requirements in Medicaid managed care.

(i) A health care MCO must comply with the rules in Chapter 354, Subchapter F (relating to Pharmacy Services) of this title with the exception of:

(1) Section 354.1867 (relating to Refills);

(2) Section 354.1873 (relating to Freedom of Choice);

(3) Section 354.1877 (relating to Quantity Limitations); and

(4) Division 6 (relating to Pharmacy Claims).

(j) A health care MCO must require its subcontractors to comply with the requirements of this subchapter when providing outpatient pharmacy benefits through Medicaid managed 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 October 31, 2024.

TRD-202405186

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER M. HOME AND COMMUNITY BASED SERVICES IN MANAGED CARE

1 TAC §353.1153, §353.1155

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.1153.STAR+PLUS Home and Community Based Services (HCBS) Program.

(a) The MCO assesses an individual's eligibility for STAR+PLUS HCBS.

(1) To be eligible for the STAR+PLUS HCBS program, an individual must:

(A) be 21 years of age or older;

(B) reside in Texas;

(D) have an unmet need for support in the community that can be met through one or more of the STAR+PLUS HCBS program services;

(E) choose the STAR+PLUS HCBS program as an alternative to nursing facility services, as described in 42 CFR §441.302(d);

(F) not be enrolled in another Medicaid HCBS waiver program approved by CMS; and

(G) be determined by HHSC to be financially eligible for Medicaid, as described in Chapter 358 of this title (relating to Medicaid Eligibility for the Elderly and People with Disabilities) and Chapter 360 of this title (relating to Medicaid Buy-In Program).

(2) An individual receiving Medicaid nursing facility services is approved for the STAR+PLUS HCBS program if the individual requests services while residing in the nursing facility and meets eligibility criteria listed in paragraph (1) of this subsection. If the individual is voluntarily discharged from the nursing facility into a community setting before being determined eligible for Medicaid nursing facility services and the STAR+PLUS program, the individual is denied immediate enrollment in the program.

(b) HHSC maintains a statewide interest list of individuals not enrolled in STAR+PLUS interested in receiving services through the STAR+PLUS HCBS program. There is no interest list for individuals currently enrolled in STAR+PLUS who are eligible to receive services through the STAR+PLUS HCBS program. Individuals enrolled in STAR+PLUS may contact their MCO for more information about STAR+PLUS HCBS.

(1) A person may request an individual's name be added to the STAR+PLUS HCBS interest list by:

(A) calling HHSC toll-free at 1-855-937-2372;

(B) submitting a written request to HHSC; or

(2) HHSC removes an individual's name from the STAR+PLUS HCBS interest list if:

(A) the individual is deceased;

(B) the individual is assessed for the program and determined to be ineligible;

(D) the individual is no longer a Texas resident, unless the individual is a military family member living outside of Texas as described in Texas Government Code §526.0602 [~~§531.0931~~]:

(i) while the military member is on active duty; or

(ii) for less than one year after the former military member's active duty ends.

(c) The MCO develops a person-centered individual service plan (ISP) for each member, and all applicable documentation, as described in the STAR+PLUS Handbook.

(1) The ISP must:

(A) include services described in the Texas Healthcare Transformation and Quality Improvement Program Waiver, governed by §1115(a) of the Social Security Act.

(B) include services necessary to protect the individual's health and welfare in the community;

(C) include services that supplement rather than supplant the individual's natural supports and other non-STAR+PLUS HCBS supports and services for which the individual may be eligible;

(D) include services designed to prevent the individual's admission to an institution;

(E) include the most appropriate type and amount of services to meet the individual's needs in the community;

(F) be reviewed and revised if an individual's needs or natural supports change or at the request of the individual or their legally authorized representative;

(G) be approved by HHSC; and

(H) be cost effective.

(2) If an individual's ISP exceeds 202 percent of the cost of the individual's level-of-care in a nursing facility to safely serve the individual's needs in the community, the MCO must submit a request for a clinical assessment for general revenue funds to HHSC.

(d) MCOs are responsible for conducting reassessments and ISP development for their enrollees' continued eligibility for STAR+PLUS HCBS, in accordance with the policies and procedures outlined in the STAR+PLUS Handbook and in accordance with the timeframes outlined in the managed care contracts governing STAR+PLUS.

(e) MCOs are responsible for authorizing a network provider of the individual's choosing to deliver services outlined in an individual's ISP.

(f) Individuals participating in STAR+PLUS HCBS have the same rights and responsibilities as any individual enrolled in managed care, as described in Subchapter C of this chapter (relating to Member Bill of Rights and Responsibilities), including the right to appeal a decision made by HHSC or an MCO and the right to a fair hearing, as described in Chapter 357, Subchapter A, of this title (relating to Uniform Fair Hearing Rules).

(g) HHSC conducts utilization reviews of STAR+PLUS MCOs as described in Texas Government Code §540.0755 [~~§533.00281~~].

§353.1155.Medically Dependent Children Program.

(a) An MCO assesses an individual's eligibility for MDCP.

(1) To be eligible for MDCP, an individual must:

(A) be under 21 years of age;

(B) reside in Texas;

(D) have an unmet need for support in the community that can be met through one or more MDCP services;

(E) choose MDCP as an alternative to nursing facility services, as described in 42 CFR §441.302(d);

(F) not be enrolled in one of the following Medicaid HCBS waiver programs approved by CMS:

(i) the Community Living Assistance and Support Services (CLASS) Program;

(ii) the Deaf Blind with Multiple Disabilities (DBMD) Program;

(iii) the Home and Community-based Services (HCS) Program;

(iv) the Texas Home Living (TxHmL) Program; or

(v) the Youth Empowerment Services waiver;

(G) live in:

(i) the individual's home; or

(ii) an agency foster home as defined in Texas Human Resource Code, §42.002, (relating to Definitions); and

(H) be determined by HHSC to be financially eligible for Medicaid under Chapter 358 of this title (relating to Medicaid Eligibility for the Elderly and People with Disabilities), Chapter 360 of this title (relating to Medicaid Buy-In Program), or Chapter 361 of this title (relating to Medicaid Buy-In for Children Program).

(2) An individual receiving Medicaid nursing facility services is approved for MDCP if the individual requests services while residing in a nursing facility and meets the eligibility criteria listed in paragraph (1) of this subsection. If an individual is discharged from a nursing facility into a community setting before being determined eligible for Medicaid nursing facility services and MDCP, the individual is denied immediate enrollment in the program.

(b) HHSC maintains a statewide interest list of individuals interested in receiving services through MDCP.

(1) A person may request that an individual's name be added to the MDCP interest list by:

(A) calling HHSC toll-free 1-877-438-5658;

(B) submitting a written request to HHSC; or

(2) If a request is made in accordance with paragraph (1) of this subsection, HHSC adds an individual's name to the MDCP interest list:

(A) if the individual is a Texas resident; and

(B) using the date HHSC receives the request as the MDCP interest list date.

(3) For an individual determined diagnostically or functionally ineligible during the enrollment process for the CLASS Program, DBMD Program, HCS Program, or TxHmL Program:

(A) if the individual's name is not on the MDCP interest list, at the request of the individual or LAR, HHSC adds the individual's name to the MDCP interest list using the individual's interest list date for the waiver program for which the individual was determined ineligible as the MDCP interest list date;

(B) if the individual's name is on the MDCP interest list and the individual's interest list date for the waiver program for which the individual was determined ineligible is earlier than the individual's MDCP interest list date, at the request of the individual or LAR, HHSC changes the individual's MDCP interest list date to the individual's interest list date for the waiver program for which the individual was determined ineligible; or

(C) if the individual's name is on the MDCP interest list and the individual's MDCP interest list date is earlier than the individual's interest list date for the waiver program for which the individual was determined ineligible, HHSC does not change the individual's MDCP interest list date.

(4) This paragraph applies to an individual who is enrolled in MDCP and, because the individual does not meet the level of care criteria for medical necessity for nursing facility care, is determined ineligible for MDCP after November 30, 2019. The individual or the individual's LAR may request one time that HHSC add the individual's name to the first position on the MDCP interest list.

(5) This paragraph applies to an individual who is enrolled in MDCP and, because the individual does not meet the level of care criteria for medical necessity for nursing facility care or the requirement to be under 21 years of age, is determined ineligible for MDCP after November 30, 2019. The individual or the individual's LAR may request that HHSC add the individual's name to the interest list for any of the following programs or change the individual's interest list date for any of the following programs in accordance with:

(A) 40 TAC §45.202 (relating to CLASS Interest List) for the CLASS Program;

(B) 40 TAC §42.202 (relating to DBMD Interest List) for the DBMD Program;

(D) 40 TAC §9.566 (relating to TxHmL Interest List) for the TxHmL Program.

(6) HHSC removes an individual's name from the MDCP interest list if:

(A) the individual is deceased;

(B) the individual is assessed for MDCP and determined to be ineligible and has had an opportunity to exercise the individual's right to a fair hearing, as described in Chapter 357 of this title (relating to Hearings);

(C) the individual, medical consenter, or LAR requests in writing that the individual's name be removed from the interest list; or

(D) the individual moves out of Texas, unless the individual is a military family member living outside of Texas as described in Texas Government Code §526.0602 [~~§531.0931~~]:

(i) while the military member is on active duty; or

(ii) for less than one year after the former military member's active duty ends.

(7) An individual assessed for MCDP and determined to be ineligible, as described in paragraph (6)(B) of this subsection, may request to have the individual's name added to the MDCP interest list as described in paragraph (1) of this subsection.

(c) An MCO develops a person-centered individual service plan (ISP) for each member in MDCP, and all applicable documentation, as described in the STAR Kids Handbook and the Uniform Managed Care Manual (UMCM).

(1) An ISP must:

(A) include services described in the waiver approved by CMS;

(B) include services necessary to protect a member's health and welfare in the community;

(C) include services that supplement rather than supplant the member's natural supports and other non-Medicaid supports and services for which the member may be eligible;

(D) include services designed to prevent the member's admission to an institution;

(E) include the most appropriate type and amount of services to meet the member's needs in the community;

(F) be reviewed and revised if the member's needs or natural supports change or at the request of the member or LAR; and

(G) be cost effective.

(2) If a member's ISP exceeds 50 percent of the cost of the member's level of care in a nursing facility to safely serve the member's needs in the community, HHSC must review the circumstances and, when approved, provide funds through general revenue.

(d) An MCO is responsible for conducting a reassessment and developing an ISP for each member's continued eligibility for MDCP, in accordance with the policies and procedures outlined in the STAR Kids Handbook, UMCM, or materials designated by HHSC and in accordance with the timeframes outlined in the MCO's contract.

(e) An MCO is responsible for authorizing a provider of a member's choice to deliver services outlined in the member's ISP.

(f) A member participating in MDCP has the same rights and responsibilities as any member enrolled in managed care, as described in Subchapter C of this chapter (relating to Member Bill of Rights and Responsibilities), including the right to appeal a decision made by HHSC or an MCO and the right to a fair hearing, as described in Chapter 357 of this title.

(g) HHSC conducts utilization reviews of MCOs providing MDCP 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 October 31, 2024.

TRD-202405187

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER Q. PROCESS TO RECOUP CERTAIN OVERPAYMENTS

1 TAC §353.1451

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 523, 526, 540, and 544.

§353.1451.Purpose and Authority.

The purpose of this subchapter is to describe the due process a managed care organization (MCO) must give to recoup an overpayment related to an electronic visit verification visit transaction in accordance with Texas Government Code §544.0503 [~~, §531.1135~~ ] and the due process an MCO must give to recoup an overpayment related to a determination of fraud or abuse in accordance with Texas Government Code §544.0502 [~~, §531.1131~~].

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 October 31, 2024.

TRD-202405188

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES

1 TAC §353.1309

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §353.1309, concerning Texas Incentives for Physicians and Professional Services.

BACKGROUND AND PURPOSE

The purpose of the proposal is to make modifications to the Texas Incentives for Physicians and Professional Services (TIPPS) program to provide additional details concerning the pay-for-performance model established for Component Two of the program, beginning in State Fiscal Year (SFY) 2026. The rule amendment changes how certain TIPPS funds will be redistributed to other physician groups participating in TIPPS if a physician group fails to earn those funds due to a failure to achieve performance requirements for Component Two of TIPPS.

HHSC sought and received authorization from the Centers for Medicare and Medicaid Services (CMS) to create TIPPS as part of the financial and quality transition from the Delivery System Reform Incentive Payment (DSRIP) program. Directed payment programs authorized under 42 Code of Federal Regulations (C.F.R.) §438.6(c), including TIPPS, are expected to continue to evolve over time to advance quality goals or objectives the program is intended to impact. HHSC previously amended the TIPPS rule to shift the program structure in SFY 2026 to provide that Component Two will be paid to physician groups based on a pay-for-performance model using achievement of quality measures and paid through a scorecard. Health Related Institution (HRI) and Indirect Medical Education (IME) physician groups are eligible for Component Two payments.

Under this rule amendment, if a physician group does not meet the performance requirements for Component Two, the funds that are not earned by that physician group will be redistributed among other physician groups in the same Service Delivery Area (SDA) and class (HRI or IME), based on how much those physician groups have already earned for Component Two. If no physician group in the same SDA and class earned funds under Component 2, the funds will be distributed across all physician groups in that SDA, based on how much those physician groups have already earned for Component Two. If there are no physician groups in that SDA that earned Component Two funds, the unearned funds will be distributed across all HRI and IME physician groups participating in TIPPS, based on how much those physician groups have already earned for Component Two. Multiple providers have requested that HHSC make the changes being proposed to allow redistribution of unearned funds back to providers. HHSC is interested in stakeholder feedback on the proposed redistribution of unearned funds in TIPPS.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §353.1309(h)(1)(B)(iii) proposes the redistribution of funds available under Component 2 of TIPPS that is not earned by a physician group due to a failure to achieve performance requirements and provides the calculation method for redistribution. The redistribution varies depending on the location and class of physician group that earn funds under Component 2 of TIPPS.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local government.

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 not 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) 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, Chief Financial Officer, has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities to comply with the proposed rule because participation in the program is voluntary.

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 does not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Victoria Grady, Director of the Provider Finance Department, has determined that for each year of the first five years the rule is in effect, the public will benefit from the proposed rule. It will increase the funding available directly for physician groups under the TIPPS program, which could encourage more physician groups to continue program participation. Increased participation would then increase the overall public dollars available in the program.

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 participation in the program is optional.

TAKINGS IMPACT ASSESSMENT

PUBLIC HEARING

A public hearing is scheduled for December 3, 2024, at 9:00 a.m. (Central Standard Time) to receive public comments on the proposal via webinar. Persons requiring further information, special assistance, or accommodations should email pfd_tipps@hhs.texas.gov.

Persons interested in attending may register for the public hearing at:

https://attendee.gotowebinar.com/register/3035089041097014111

After registering, a confirmation email will be sent with information about joining the webinar.

HHSC will broadcast the public hearing. The broadcast will be archived for access on demand and can be accessed at https://hhs.texas.gov/about-hhs/communications-events/live-archived-meetings.

PUBLIC COMMENT

Written comments on the proposal may be submitted to HHSC Provider Finance Department, Acute Care Services, Mail Code H-400 at 4601 W. Guadalupe St. Austin, Texas 78751 or via email at pfd_tipps@hhs.texas.gov.

To be considered, comments must be submitted no later than 21 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 24R007" 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, and Texas Government Code §531.033, which provides the Executive Commissioner with broad rulemaking authority; 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; 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; and Texas Government Code §533.002, which authorizes HHSC to implement the Medicaid managed care program.

The amendment affects Texas Government Code Chapter 531, Texas Government Code Chapter 533, and Texas Human Resources Code Chapter 32.

§353.1309.Texas Incentives for Physicians and Professional Services.

(a) Introduction. This section establishes the Texas Incentives for Physicians and Professional Services (TIPPS) program. TIPPS is designed to incentivize physicians and certain medical professionals to improve quality, access, and innovation in the provision of medical services to Medicaid recipients through the use of metrics that are expected to advance at least one of the goals and objectives of the state's managed care quality strategy.

(b) Definitions. The following definitions apply when the terms are used in this section. Terms that are used in this section may be defined in §353.1301 of this subchapter (relating to General Provisions) or §353.1311 of this subchapter (relating to Quality Metrics for the Texas Incentives for Physicians and Professional Services Program).

(1) Health Related Institution (HRI) physician group--A network physician group owned or operated by an institution named in Texas Education Code §63.002.

(2) Indirect Medical Education (IME) physician group--A network physician group contracted with, owned, or operated by a hospital receiving either a medical education add-on or a teaching medical education add-on as described in §355.8052 of this title (relating to Inpatient Hospital Reimbursement) for which the hospital is assigned or retains billing rights for the physician group.

(3) Intergovernmental Transfer (IGT) Notification--Notice and directions regarding how and when IGTs should be made in support of the program.

(4) Network physician group--A physician group located in the state of Texas that has a contract with a Managed Care Organization (MCO) for the delivery of Medicaid-covered benefits to the MCO's enrollees.

(5) Network status--A provider's network status with a contracted MCO, as determined by the national provider identification (NPI) number and Plan Code combination.

(6) Other physician group--A network physician group other than those specified under paragraphs (1) and (2) of this subsection.

(7) Plan code--A unique 2-digit alphanumeric code established by HHSC denoting the individual managed care organization, program, and service delivery area.

(8) Program period--A period of time for which an eligible and enrolled physician group may receive the TIPPS amounts described in this section. Each TIPPS program period is equal to a state fiscal year beginning September 1 and ending August 31 of the following year.

(9) Suggested IGT responsibility--Notice of potential amounts that a governmental entity may wish to consider transferring in support of the program.

(10) Total program value--The maximum amount available under the TIPPS program for a program period, as determined by HHSC.

(c) Eligibility for participation in TIPPS. A physician group is eligible to participate in TIPPS if it complies with the requirements described in this subsection.

(1) Physician group composition. A physician group must indicate the eligible physicians, clinics, and other locations to be considered for payment and quality measurement purposes in the application process.

(2) Minimum volume. For program periods beginning on or before September 1, 2023, but on or after September 1, 2021, physician groups must have a minimum denominator volume of 30 Medicaid managed care patients in at least 50 percent of the quality metrics in each component to be eligible to participate in the component. For program periods beginning on or after September 1, 2024, no minimum denominator volume is required.

(3) The physician group is:

(A) an HRI physician group;

(B) an IME physician group; or

(i) can achieve the minimum volume during program periods beginning on or before September 1, 2023, but on or after September 1, 2021, as described in paragraph (2) of this subsection;

(ii) is located in a service delivery area with at least one sponsoring governmental entity; and

(iii) for program periods beginning on or before September 1, 2023, but on or after September 1, 2021, served at least 250 unique Medicaid managed care clients in the prior state fiscal year. For program periods beginning on or after September 1, 2024, no minimum volume is required.

(d) Data sources for historical units of service and clients served. Historical units of service are used to determine a physician group's eligibility status and the estimated distribution of TIPPS funds across enrolled physician groups.

(1) HHSC will use encounter data and will identify encounters based upon the billing provider's NPI number and taxonomy code combination that are billed as a professional encounter only.

(2) HHSC will use the most recently available Medicaid encounter data for a complete state fiscal year to determine the eligibility status of other physician groups for program periods beginning on or before September 1, 2023, but on or after September 1, 2021.

(3) HHSC will use the most recently available Medicaid encounter data for a complete state fiscal year to determine distribution of TIPPS funds across eligible and enrolled physician groups.

(4) In the event of a disaster, HHSC may use data from a different state fiscal year at HHSC's discretion.

(5) The data used to estimate eligibility and distribution of funds will align with the data used for purposes of setting the capitated rates for managed care organizations for the same period.

(6) HHSC will calculate the estimated rate that an average commercial payor would have paid for the same services using either data that HHSC obtains independently or data that is collected from providers through the application process described in subsection (c) of this section.

(7) If HHSC is unable to compute an actuarially sound payment rate based on private payor information described in paragraph (6) of this subsection for any services, then those services will be removed from consideration from the TIPPS program.

(8) All services billed and delivered at a Federally Qualified Health Center, dental services, and ambulance services are excluded from the scope of the TIPPS program.

(9) Encounter data used to calculate payments for this program must be designated as paid status. Encounters reported as a paid status, but with zero or negative dollars as a reported paid amount will not be included in the data used to calculate payments for the TIPPS program.

(10) If a provider with the same Tax Identification Number as the payor is being paid more than 200 percent of the Medicaid reimbursement on average for the same services in a one-year period, then a related-party-adjustment will be applied to the encounter data for those encounters. This adjustment will apply a calculated average payment rate from the rest of the provider pool to the related parties paid units of service.

(e) Conditions of Participation. As a condition of participation, all physician groups participating in TIPPS must allow for the following.

(1) The physician group must submit a properly completed enrollment application by the due date determined by HHSC. The enrollment period will be no less than 21 calendar days, and the final date of the enrollment period will be at least nine days prior to the release of suggested IGT responsibilities.

(2) Enrollment is conducted annually, and participants may not join the program after the enrollment period closes. Any updates to enrollment information must be submitted prior to the publication of the suggested IGT responsibilities under subsection (f)(1) of this section. For each program period, a physician group must be located in a Service Delivery Area (SDA) in which at least one sponsoring governmental entity that agrees to transfer to HHSC some or all of the non-federal share under this section is also located. An SDA is designated by HHSC for each provider, or physician group with multiple locations, based on the SDA in which the majority of a physician group's claims are billed. Services that are provided outside of a designated SDA may be included in the designated SDA.

(3) Network status for providers for the entire program period will be determined at the time of enrollment based on the submission of documentation through the enrollment process that shows an MCO has identified the provider as having a network agreement.

(4) The entity that bills on behalf of the physician group must certify, on a form prescribed by HHSC, that no part of any TIPPS payment will be used to pay a contingent fee nor may the entity's agreement with the physician group use a reimbursement methodology that contains any type of incentive, directly or indirectly, for inappropriately inflating, in any way, claims billed to the Medicaid program, including the physician group's receipt of TIPPS funds. The certification must be received by HHSC with the enrollment application described in paragraph (1) of this subsection.

(5) If a provider has changed ownership in the past five years in a way that impacts eligibility for the TIPPS program, the provider must submit to HHSC, upon demand, copies of contracts it has with third parties with respect to the transfer of ownership or the management of the provider and which reference the administration of, or payment from, the TIPPS program.

(6) Report all quality data denoted as required as a condition of participation in §353.1311(d)(1) of this subchapter.

(7) Failure to meet any conditions of participation described in this subsection will result in the removal of the provider from the program and recoupment of all funds previously paid during the program period.

(f) Non-federal share of TIPPS payments. The non-federal share of all TIPPS payments is funded through IGTs from sponsoring governmental entities. No state general revenue is available to support TIPPS.

(1) HHSC will communicate suggested IGT responsibilities for the program period with all TIPPS eligible and enrolled HRI physician groups and IME physician groups at least 10 calendar days prior to the IGT declaration of intent deadline. Suggested IGT responsibilities will be based on the maximum dollars available under the TIPPS program for the program period as determined by HHSC, plus eight percent; forecasted member months for the program period as determined by HHSC; and the distribution of historical Medicaid utilization across HRI physician groups and IME physician groups, plus estimated utilization for eligible and enrolled other physician groups within the same service delivery area, for the program period. HHSC will also communicate the estimated maximum revenues each eligible and enrolled physician group could earn under TIPPS for the program period with those estimates based on HHSC's suggested IGT responsibilities and an assumption that all enrolled physician groups will meet 100 percent of their quality metrics.

(2) Sponsoring governmental entities will determine the amount of IGT they intend to transfer to HHSC for the entire program period and provide a declaration of intent to HHSC 21 business days before the first half of the IGT amount is transferred to HHSC.

(A) The declaration of intent is a form prescribed by HHSC that includes the total amount of IGT the sponsoring governmental entity intends to transfer to HHSC.

(B) The declaration of intent is certified to the best knowledge and belief of a person legally authorized to sign for the sponsoring governmental entity but does not bind the sponsoring governmental entity to transfer IGT.

(3) HHSC will issue an IGT notification to specify the date that IGT is requested to be transferred no fewer than 14 business days before IGT transfers are due. Sponsoring governmental entities will transfer the first half of the IGT amount by a date determined by HHSC, but no later than June 1. Sponsoring governmental entities will transfer the second half of the IGT amount by a date determined by HHSC, but no later than December 1. HHSC will publish the IGT deadlines and all associated dates on its Internet website by March 15 of each year.

(4) Reconciliation. HHSC will reconcile the amount of the non-federal funds actually expended under this section during each program period with the amount of funds transferred to HHSC by the sponsoring governmental entities for that same period using the methodology described in §353.1301(g) of this subchapter.

(g) TIPPS capitation rate components. TIPPS funds will be paid to Managed Care Organizations (MCOs) through three components of the managed care per member per month (PMPM) capitation rates. The MCOs' distribution of TIPPS funds to the enrolled physician groups will be based on each physician group's performance related to the quality metrics as described in §353.1311 of this subchapter. The physician group must have provided at least one Medicaid service to a Medicaid client in each reporting period to be eligible for payments.

(1) Component One.

(A) For program periods beginning on or before September 1, 2023, but on or after September 1, 2021, the total value of Component One will be equal to 65 percent of the total program value.

(i) Allocation of funds across qualifying HRI and IME physician groups will be proportional, based on historical Medicaid clients served.

(ii) Monthly payments to HRI and IME physician groups will be a uniform rate increase.

(iii) Other physician groups are not eligible for payments from Component One.

(iv) Providers must report quality data as described in §353.1311 of this subchapter as a condition of participation in the program.

(v) HHSC will reconcile the interim allocation of funds across qualifying HRI and IME physician groups to the actual distribution of Medicaid clients served across these physician groups during the program period, as captured by Medicaid MCOs contracted with HHSC for managed care 120 days after the last day of the program period.

(vi) Redistribution resulting from the reconciliation will be based on the actual utilization of enrolled NPIs.

(vii) If a provider eligible for TIPPS payments was not included in the monthly scorecards, the provider may be included in the reconciliation by HHSC.

(B) For the program period beginning on September 1, 2024, the total value of Component One will be equal to 90 percent of the total program value.

(i) Allocation of funds across qualifying HRI and IME physician groups will be proportional, based upon historical Medicaid utilization.

(ii) Payments to physician groups will be a uniform rate increase paid at the time of claim adjudication.

(iii) Other physician groups are not eligible for payments from Component One.

(iv) Providers must report quality data as described in §353.1311 of this subchapter as a condition of participation in the program.

(C) For program periods beginning on or after September 1, 2025, the total value of component one will be equal to 55 percent of the total program value.

(i) Allocation of funds across qualifying HRI and IME physician groups will be proportional, based upon historical Medicaid utilization.

(ii) Payments to physician groups will be a uniform rate increase paid at the time of claim adjudication.

(iii) Other physician groups are not eligible for payments from Component One.

(iv) Providers must report quality data as described in §353.1311 of this subchapter as a condition of participation in the program.

(2) Component Two.

(A) For program periods beginning on or before September 1, 2023, but on or after September 1, 2021, the total value of Component Two will be equal to 25 percent of the total program value.

(i) Allocation of funds across qualifying HRI and IME physician groups will be proportional, based upon historical Medicaid utilization.

(ii) Payments to physician groups will be a uniform rate increase.

(iii) Other physician groups are not eligible for payments from Component Two.

(iv) Providers must report quality data as described in §353.1311 of this subchapter as a condition of participation in the program.

(v) HHSC will reconcile the interim allocation of funds across qualifying HRI and IME physician groups to the actual distribution of Medicaid clients served across these physician groups during the program period as captured by Medicaid MCOs contracted with HHSC for managed care 120 days after the last day of the program period.

(vi) Redistribution resulting from the reconciliation will be based on the actual utilization of enrolled NPIs.

(vii) If a provider eligible for TIPPS payments was not included in the monthly scorecards, the provider may be included in the reconciliation by HHSC.

(B) For the program period beginning September 1, 2024, Component Two will be equal to 0 percent of the program.

(C) For program periods beginning on or after September 1, 2025, the total value of Component Two will be equal to 35 percent of the total program value.

(i) Allocation of funds across qualifying HRI and IME physician groups will be proportional, based upon historical Medicaid utilization.

(ii) Payments to physician groups will be made through a pay-for-performance model based on their achievement of quality measures and paid through a scorecard.

(iii) Other physician groups are not eligible for payments from Component Two.

(3) Component Three.

(A) The total value of Component Three will be equal to 10 percent of the total program value.

(B) Allocation of funds across physician groups will be proportional, based upon actual Medicaid utilization of specific procedure codes as identified in the final quality metrics or performance requirements described in §353.1311 of this subchapter.

(D) Providers must report quality data as described in §353.1311 of this subchapter as a condition of participation in the program.

(h) Distribution of TIPPS payments.

(1) Before the beginning of the program period, HHSC will calculate the portion of each PMPM associated with each TIPPS enrolled practice group broken down by TIPPS capitation rate component and payment period. The model for scorecard payments and the reconciliation calculations will be based on the enrolled NPIs and the MCO network status at the time of the application under subsection (e)(1) of this section. For example, for a physician group, HHSC will calculate the portion of each PMPM associated with that group that would be paid from the MCO to the physician group as follows.

(A) Payments from Component One.

(i) For program periods beginning on or before September 1, 2023, but on or after September 1, 2021, payments will be monthly and will be equal to the total value of Component One for the physician group divided by twelve.

(ii) For program periods beginning on or after September 1, 2024, payments will be made as a uniform percentage increase paid at the time of claim adjudication.

(B) Payments from Component Two.

(i) For program periods beginning on or before September 1, 2023, but on or after September 1, 2021, payments will be semi-annual and will be equal to the total value of Component Two for the physician group divided by 2.

(ii) For the program period beginning on September 1, 2024, no payments will be made for Component Two.

(iii) For program periods beginning on or after September 1, 2025, payment will be made on a scorecard basis at payments based on the reporting of quality measures and paid through a scorecard at the time of achievement. Funds that are not earned by a physician group due to failure to achieve performance requirements will be redistributed to other physician groups in the same SDA and physician group class (HRI or IME) based on each physician group's proportion of total earned Component Two funds in the SDA. If no other physician group in the SDA and physician group class receives performance payments, unearned funds will be redistributed to all HRI or IME physician groups in the SDA based on each physician group's proportion of total earned Component Two funds. If no physician group in the SDA receives performance payments, unearned funds will be redistributed to all HRI and IME physician groups participating in TIPPS based on each physician group's proportion of total earned Component Two funds.

(C) Payments from Component Three will be equal to the total value of Component Three attributed as a uniform rate increase based upon historical utilization.

(2) MCOs will distribute payments to enrolled physician groups as directed by HHSC. Payments will be equal to the portion of the TIPPS PMPM associated with the achievement for the time period in question multiplied by the number of member months for which the MCO received the TIPPS PMPM.

(i) Changes in operation. If an enrolled physician group closes voluntarily or ceases to provide Medicaid services, the physician group must notify the HHSC Provider Finance Department by hand delivery, United States (U.S.) mail, or special mail delivery within 10 business days of closing or ceasing to provide Medicaid services. Notification is considered to have occurred when the HHSC Provider Finance Department receives the notice.

(j) Reconciliation. HHSC will reconcile the amount of the non-federal funds actually expended under this section during each program period with the amount of funds transferred to HHSC by the sponsoring governmental entities for that same period using the methodology described in §353.1301(g) of this subchapter.

(k) Recoupment. Payments under this section may be subject to recoupment as described in §353.1301(j) and §353.1301(k) of this subchapter.

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 1, 2024.

TRD-202405232

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (737) 230-0550

CHAPTER 354. MEDICAID HEALTH SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1189, concerning Acute Care Medicaid Billing Coordination System; §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; §354.1924, concerning Preferred Drug List; §354.1941, concerning Drug Utilization Review Board; §354.2501, concerning Definitions; §354.2603, concerning Definitions; §354.3001, concerning Purpose and Applicability; §354.4001, concerning Purpose and Authority; §354.4003, concerning Definitions; and §354.5011, concerning Providers of Applied Behavior Analysis (ABA) Services.

BACKGROUND AND PURPOSE

FISCAL NOTE

Trey Wood, HHSC Chief Financial Services 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.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER A. PURCHASED HEALTH SERVICES

DIVISION 11. GENERAL ADMINISTRATION

1 TAC §354.1189

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.1189.Acute Care Medicaid Billing Coordination System.

An acute care Medicaid billing coordination system is mandated by Texas Government Code §532.0058 [~~the Government Code §531.02413~~]. The Health and Human Services Commission (HHSC) will develop and implement an acute care Medicaid billing coordination system for the fee-for-service delivery model that identifies whether another entity has primary payor responsibility.

(1) An entity holding a permit, license, or certificate of authority issued by a state regulatory agency must allow HHSC or its designee to access databases that enable it to carry out the purposes of this section. Entities subject to this section are those entities that are, by statute, contract or agreement, legally responsible for the payment of a claim for a health care item or service.

(2) HHSC shall refer any entity that violates this rule to the regulatory agency issuing the permit, license, or certificate of authority for possible administrative sanction.

(3) After September 1, 2008, no public funds shall be expended on entities not in compliance with this section unless a memorandum of understanding is entered into between the entity and HHSC.

(4) Information obtained under this section must be secure and maintain the confidentiality of the client's health records in compliance with security and privacy rules adopted by the U.S. Department of Health and Human Services under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 C.F.R. §§164.302 - 164.318 and §§164.500 - 164.534.

(5) The administrator of the acute care Medicaid billing coordination system shall be determined by HHSC. The administrator shall be responsible for meeting all requirements of the acute care Medicaid billing coordination system.

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 October 31, 2024.

TRD-202405189

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

DIVISION 33. ADVANCED TELECOMMUNICATIONS SERVICES

1 TAC §354.1435

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.1435.Provision of Behavioral Health Services through an Audio-Only Platform.

The Texas Health and Human Services Commission (HHSC) recognizes that mental health services are expressly excluded from the provisions of Texas Occupations Code Chapter 111 and further, that the term "mental health services" is not defined in Texas Occupations Code Chapter 111. Additionally, HHSC recognizes the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders and the National Institute of Mental Health recognize substance use disorder as a mental disorder. Acknowledging the importance of access to substance use disorder and pursuant to HHSC's broad rulemaking authority in Texas Government Code §524.0005 and §524.0151 [~~§531.0055 and §531.033~~] and Texas Human Resources Code §32.021, for the purposes of this rule, HHSC considers the provision of mental health services, as that term is used in Texas Occupations Code Chapter 111, to be synonymous with the provision of behavioral health services. Conditions for reimbursement applicable to behavioral health services provided through an audio-only platform are described in this section.

(1) The provider must be enrolled in Texas Medicaid.

(2) The provider must obtain informed consent from the client, client's parent, or the client's legally authorized representative prior to rendering a behavioral health service via an audio-only platform; except when doing so is not feasible or could result in death or injury to the client. Verbal consent is permissible and must be documented in the client's medical record.

(3) The covered services must be provided in compliance with the standards established by the respective licensing or certifying board of the professional providing the audio-only telemedicine medical service or audio-only telehealth service.

(4) Behavioral health services provided via audio-only platform must be designated for reimbursement by HHSC. Behavioral health services provided via an audio-only platform designated for reimbursement are those that are clinically effective and cost-effective, as determined by HHSC and in accordance with §354.1432(3) of this subchapter (relating to Telemedicine and Telehealth Benefits and Limitations). Behavioral health services that HHSC has determined are clinically effective and cost-effective when provided via an audio-only platform can be found in the Texas Medicaid Provider Procedures Manual (TMPPM).

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 October 31, 2024.

TRD-202405190

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER F. PHARMACY SERVICES

DIVISION 7. TEXAS DRUG CODE INDEX--ADDITIONS, RETENTIONS, AND DELETIONS

1 TAC §354.1924

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.1924.Preferred Drug List.

(a) Purpose. This section implements the provisions of Texas Government Code §549.0202 [~~§531.072, Government Code~~], which directs the Health and Human Services Commission (HHSC) to develop and implement a preferred drug list (PDL) for the Texas Medical Assistance Program.

(b) Applicability. This section applies to drugs included in the Texas Drug Code Index (TDCI) established under §354.1921 of this title (relating to Addition of Drugs to the Texas Drug Code Index).

(1) The recommendations of the Drug Utilization Review Board (DUR Board) established under §354.1941 of this subchapter (relating to Drug Utilization Review Board);

(2) The clinical efficacy of the drug, consistent with the determination of the Food and Drug Administration and the recommendations of the DUR Board;

(3) Comparison of the price of the drug and the price of competing drugs. For purposes of this section, the price of a drug is determined by reference to the reimbursement for the drug established under §355.8541 of this title (relating to Legend and Nonlegend Medications) and after deducting Texas and federal rebates;

(4) A program benefit offered by the manufacturer or labeler of the drug and accepted by HHSC in accordance with Texas Government Code §549.0106 [~~§531.070, Government Code~~]; and

(5) Written evidence offered by a manufacturer or labeler supporting the inclusion of a product on the PDL.

(d) Distribution of PDL. HHSC will publish the PDL on its Internet website (http://www.hhsc.state.tx.us/). A health care provider may also request a copy of the PDL from HHSC by sending a written request to the HHSC or its designee.

(e) Revisions to the PDL. Within 10 days following HHSC's decision on the recommendations of the DUR Board, HHSC will publish the revised PDL.

(f) Exclusion of a drug from the PDL. A drug that is not included in the PDL will be subject to prior authorization by HHSC or its designee in accordance with §354.1832 of this title (relating to Prior Authorization Procedures).

(g) Agreement on supplemental rebate necessary. HHSC will only include on the PDL drugs provided by a manufacturer or labeler that reaches an agreement on a supplemental rebate with HHSC in accordance with Texas Government Code §549.0106 [~~§531.070 of the Government Code~~]. Such agreement may provide for a program benefit offered by the manufacturer or labeler of the drug and accepted by HHSC in accordance with Texas Government Code §549.0106 [~~§531.070, Government Code~~].

(h) Notwithstanding subsection (g) of this section, the preferred drug list may contain a drug provided by a manufacturer or labeler that has not reached a supplemental rebate agreement with HHSC if HHSC determines that inclusion of the drug on the preferred drug list will have no negative cost impact to the state, in accordance with Texas Government Code §549.0204 [~~§531.072 of the Government Code~~].

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 October 31, 2024.

TRD-202405191

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

DIVISION 8. DRUG UTILIZATION REVIEW BOARD

1 TAC §354.1941

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.1941.Drug Utilization Review Board.

(a) The Drug Utilization Review Board (DUR Board) must:

(1) develop recommendations for preferred drug lists to be adopted by the Texas Health and Human Services Commission (HHSC) under Texas Government Code Chapter 549, Subchapter E [~~§531.072~~];

(2) suggest to HHSC restrictions or clinical prior authorizations on prescription drugs;

(3) recommend to HHSC educational interventions for Medicaid providers;

(4) review drug utilization across Medicaid; and

(5) perform other duties that may be specified by law and otherwise make recommendations to HHSC.

(b) DUR Board membership.

(1) Membership composition complies with Social Security Act §1927(g)(3) and Texas Government Code §549.0302 [~~§531.0736~~].

(2) In accordance with Texas Government Code §549.0302 [~~§531.0736~~], the DUR Board is appointed by the HHSC Executive Commissioner. To apply to be a member of the DUR Board, a person submits, prior to the posted deadline, a completed application and required documents in accordance with the application instructions posted on HHSC's website.

(1) HHSC publishes notice of meetings of the DUR Board. Each notice includes the categories to be considered at the upcoming meeting, instructions concerning filing of written comments, and application to provide public testimony before the DUR Board. Testimony is provided in a public forum.

(2) The DUR Board will not discuss or disclose information deemed confidential under Texas Government Code §549.0151 [~~§531.071~~] in a public session.

(d) The DUR Board or its designee must present a summary of any clinical efficacy and safety information or analyses regarding a drug under consideration for a preferred drug list that is provided to the DUR Board by a private entity that has contracted with HHSC to provide the information. The DUR Board or the DUR Board's designee must provide the summary in electronic form before the public meeting at which consideration of the drug occurs. Confidential information described by Texas Government Code §549.0151 [~~§531.071~~ ] must be omitted from the summary. The summary must be posted on HHSC's website.

(e) Subject to HHSC's approval, the DUR Board will develop by-laws governing the conduct of DUR Board meetings, including the receipt of public testimony and procedures by which it makes advisory recommendations. HHSC or its designee will publish these by-laws on HHSC's website.

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 October 31, 2024.

TRD-202405192

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER L. QUALITY IMPROVEMENT PROCESS FOR CLINICAL INITIATIVES

1 TAC §354.2501

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.2501.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Advisory committee--In this subchapter, refers to an existing advisory committee that provides guidance to the HHSC executive commissioner and the agency on matters related to the Medicaid program and any quality-related issue and policy.

(2) Authorized submitter--A member of the state legislature; the executive commissioner of HHSC; commissioners of DADS, DARS, DFPS, and DSHS; and chairs of the Medical Care Advisory Committee, the Physician Payment Advisory Committee, and the Electronic Health Information Exchange System Advisory Committee may submit suggestions of clinical initiatives.

(3) Children's Health Insurance Program (CHIP)--The Texas State CHIP that is established under Title XXI of the federal Social Security Act (42 U.S.C. §§1397aa, et seq.) and Chapter 62 of the Health and Safety Code.

(4) Clinical initiative--Any effort, project, intervention, or best practice currently being explored, tested, or examined to improve the quality of care for recipients of health care services provided by public or private insurers that can potentially be implemented under the Medicaid program.

(5) Approved clinical initiative--Suggested clinical initiative that has met preliminary review criteria and been determined to warrant further analysis.

(6) Clinical trial--A clinical trial is a type of research study conducted in the clinical setting that follows a pre-determined plan or protocol that compares one treatment against another. The treatment can be a new drug, a new invasive medical device, or care protocol on human subjects.

(7) Department of Aging and Disability Services (DADS)--The HHS agency that administers long-term services and supports for people who are aging and for people with intellectual and physical disabilities. DADS also licenses and regulates providers of these services and administers the state's Guardianship program.

(8) Department of Assistive and Rehabilitation Services (DARS)--The HHS agency that administers programs for people with disabilities and children who have developmental delays.

(9) Department of Family Protective Services (DFPS)--The HHS agency that works with communities to protect children, the elderly, and people with disabilities from abuse, neglect, and exploitation. It also works to protect the health and safety of children in daycare, as well as foster care and other types of 24-hour care. The agency conducts investigations, provides services and referrals, enforces regulation, and provides prevention programs.

(10) Department of State Health Services (DSHS)--The HHS agency that is the state's designated public health agency.

(11) Electronic Health Information Exchange System Advisory Committee--The committee established under §531.904, Human Resources Code.

(12) Full analysis--A complete analysis of a suggestion for a clinical initiative that has met all preliminary review criteria. The analysis is conducted to determine whether the clinical initiative will improve quality of care under Medicaid and is cost-effective to the state. The analysis includes all elements described under Analysis of Clinical Initiative.

(13) Texas Health and Human Services Commission (HHSC)--The single state agency that administers and oversees the Texas Medicaid program. HHSC is established by and its authority is described in Texas Government Code Chapter 521 [~~Chapter 531 of the Texas Government Code~~].

(14) Institution of higher education--As defined by §61.003, Education Code, is any public technical institute, public junior college, public senior college or university, medical or dental unit, public state college, or other agency of higher education as defined in this section.

(15) Internet website--HHSC designated website related to the quality improvement process required under this subchapter.

(16) 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.

(17) Medical Care Advisory Committee--The committee established under the authority of Title XIX of the Social Security Act, 42 CFR §431.12, and §32.022, Human Resource Code.

(18) Medicare--A federal system of health insurance for people over 65 years of age and for certain people younger than 65 years of age who have disabilities.

(19) Physician Payment Advisory Committee--The committee created under §32.022(d), Human Resources Code.

(20) Preliminary review--An administrative process that determines whether a suggestion for a clinical initiative warrants a full analysis.

(21) Quality improvement--A system to continuously examine, monitor, and revise processes and systems that support and improve administrative and clinical functions.

(22) State-operated health care programs--In this subchapter, refers to programs that are funded solely through state general funds and operated and administered under state laws and rules.

(23) Suggestions--Proposed clinical initiatives submitted by authorized individuals either in written or electronic form.

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 October 31, 2024.

TRD-202405193

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION

DIVISION 1. GENERAL PROVISIONS

1 TAC §354.2603

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.2603.Definitions.

The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.

(1) Adult--An individual who is age 21 or older.

(2) Appeal--A mechanism for an independent review of an adverse determination or a request for a review of an action or failure to act that may result in a fair hearing.

(3) Audio-only--Has the meaning assigned by §354.1430(1) of this chapter (relating to Definitions).

(4) Behavioral health emergency--A situation involving an individual who is behaving in a violent or self-destructive manner and in which preventive, de-escalation, or verbal techniques have been determined to be ineffective and it is immediately necessary to restrain or seclude the individual to prevent:

(A) imminent probable death or substantial bodily harm to the individual because the individual is attempting to commit suicide or inflict serious bodily harm; or

(B) imminent physical harm to others because of acts the individual commits.

(5) Case manager--A staff member of the comprehensive provider agency who provides mental health targeted case management services.

(6) CFP--Certified Family Partner. A person who meets the credentialing requirements in §353.1415(d) of this title (relating to Staff Member Credentialing).

(7) CFR--Code of Federal Regulations.

(8) Child or youth--An individual who is under age 21.

(9) Community-based--Mental health targeted case management services that are provided at a location other than the comprehensive provider agency's office.

(10) Community data--Additional information gathered during the uniform assessment.

(11) CSSP--Community services specialist. A staff member of a local mental health authority who has documented full-time experience in the provision of mental health targeted case management and mental health rehabilitative services prior to August 31, 2004. See definition in Title 26 Texas Administrative Code (TAC) §301.303 (relating to Definitions).

(12) Comprehensive provider agency--An entity that provides or subcontracts for the delivery of the full array of mental health targeted case management and mental health rehabilitative services set forth in this subchapter, with the exception of §354.2715 of this subchapter (relating to Day Programs for Acute Needs).

(13) Crisis plan--A plan developed in advance of a crisis and in collaboration with the individual, legally authorized representative (LAR), caregiver, or family of the individual receiving services that identifies circumstances that determine a crisis that would jeopardize the individual's ability to remain in the community and the actions preferred and necessary to avert removal from the community.

(14) CSU--Crisis stabilization unit. A crisis stabilization unit licensed under Chapter 577 of the Texas Health and Safety Code and 26 TAC Chapter 510 (relating to Private Psychiatric Hospitals and Crisis Stabilization Units).

(15) Family Psychotherapy--Therapy that focuses on the dynamics of the family unit where the goal is to strengthen the family's problem solving and communication skills.

(16) Group Psychotherapy--Therapy that involves one or more therapists working with several clients at the same time.

(17) HHSC--The Texas Health and Human Services Commission, or its designee.

(18) IMD--Institution for mental diseases. Based on 42 CFR §435.1009, a hospital, nursing facility, or other institution of more than 16 beds that is primarily engaged in providing psychiatric diagnosis, treatment, or care of individuals with mental illness, including medical attention, nursing care, and related services.

(19) Independent Living--A service within psychosocial rehabilitative services that assists an individual in acquiring the most immediate, fundamental functional skills needed to enable the individual to reside in the community and avoid more restrictive levels of treatment or reducing behaviors or symptoms that prevent successful functioning in the individual's environment of choice. Such services include training in symptom management, personal hygiene, nutrition, food preparation, exercise, money management, and community integration activities.

(20) Individual--A person seeking or receiving mental health targeted case management, mental health rehabilitative services, or both under this subchapter.

(21) Individual Psychotherapy--Therapy that focuses on a single client.

(22) Intensive case management--A level of mental health targeted case management that includes a focused effort to coordinate community resources, uses evidence-based wraparound process planning to address a child's or youth's unmet needs across life domains, and assists a child or youth in gaining access to necessary care and services appropriate to the child's or youth's needs.

(23) Intensive case management plan--A written document that is part of the medical record for a child or youth receiving intensive case management and is developed by a case manager, in collaboration with the child or youth and the child's or youth's LAR or primary caregiver, that identifies services needed by the child or youth and sets forth a plan for how the child or youth may gain access to the identified services.

(24) LAR--Legally authorized representative. A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, including a parent, guardian, or managing conservator of a minor, or the guardian of an adult.

(25) Licensed medical personnel--A staff member who is:

(A) a physician;

(B) a physician assistant;

(D) a registered nurse;

(E) a licensed vocational nurse; or

(F) a pharmacist.

(26) Life domains--Areas of life, including safety, health, emotional, psychological, social, educational, cultural, and legal.

(27) LPHA--Licensed Practitioner of the Healing Arts. A staff member who is:

(A) a physician;

(B) a licensed professional counselor;

(D) a licensed psychologist;

(E) an advanced practice registered nurse;

(F) a physician assistant; or

(G) a licensed marriage and family therapist.

(28) Medication training and support services--Medication training and support services consist of education and guidance about medications and their possible side effects.

(29) Mental health rehabilitative services--Services that are individualized, age-appropriate, and provide training and instructional guidance that restore an individual's functional deficits due to serious mental illness or serious emotional disturbance. The services are designed to improve or maintain the individual's ability to remain in the community as a fully integrated and functioning member of that community.

(30) Mental health targeted case management--Services furnished to assist individuals with severe mental illness and functional impairments or serious emotional disorders and functional impairments to gain access to needed medical, social, educational, and other services.

(31) On-site--Services that are provided at a location operated by a comprehensive provider agency.

(32) Peer provider--Staff with lived experience with a mental health condition who meet the credentialing requirements in §353.1415(c) of this title.

(33) Pharmacological management--In-depth management of psychopharmacological agents to treat an individual's mental health symptoms.

(34) Platform--Has the meaning assigned by Texas Government Code §521.0001(10) [~~§531.001(4-d)~~].

(35) Primary caregiver--A person 18 years of age or older who has:

(A) actual care, control, and possession of a child or youth; or

(B) assumed responsibility for providing shelter and care for an adult.

(36) Psychiatric diagnostic evaluation--An integrated biopsychosocial assessment, including history, mental status, and recommendations.

(37) Psychosocial rehabilitative services--Social, behavioral, and cognitive interventions provided by members of an adult's therapeutic team that build on strengths and focus on restoring the adult's ability to develop and maintain social relationships, occupational or educational achievements, and other independent living skills that are affected by a serious mental illness in adults. Psychosocial rehabilitative services may also address the impact of co-occurring disorders upon the adult's ability to reduce symptomology and increase daily functioning.

(38) QMHP-CS--Qualified Mental Health Professional-Community Services. Staff who meet the credentialing requirements in §353.1415(a) of this title.

(39) Recovery--A process of change through which individuals improve their health and wellness, live a self-directed life, and strive to reach their full potential.

(40) Recovery or treatment plan (recovery/treatment plan)--A written plan that:

(A) is developed with the individual, the LAR if required, other persons whose inclusion is requested by the individual or LAR and who agree to participate, and a QMHP-CS or LPHA;

(B) is completed in conjunction with the uniform assessment;

(D) guides the recovery process and fosters resiliency;

(E) identifies the individual's changing strengths, capacities, goals, preferences, needs, and desired outcomes; and

(F) identifies services and supports to meet the individual's goals, preferences, needs and desired outcomes.

(41) Recovery or treatment planning (recovery/treatment planning)--A systematic process for engaging the individual, LAR, and the primary caregiver and others to develop goals and identify a course of action to respond to the individual's clinically assessed needs, including medical, social, educational, and other services needed by the individual.

(42) Referral and linkage--Activities that help link an individual with medical, social, educational, and other providers that are capable of providing needed services.

(43) Routine care services--Mental health services provided to an individual who is not in crisis.

(44) Service provider--An entity separate from the comprehensive provider agency which may also provide services to an individual outside of the services performed under this subchapter.

(45) Staff member--Comprehensive provider agency personnel, including a full-time or part-time employee, contractor, or intern, but excluding a volunteer.

(46) Strengths-based--The concept used in service delivery that identifies, builds on, and enhances the capabilities, knowledge, skills, and assets of the individual, LAR, or primary caregiver, and family, their community, and other team members. The focus is on increasing functional strengths and assets rather than on the elimination of deficits.

(47) Telehealth service--Has the meaning assigned by Texas Occupations Code §111.001(3).

(48) Telemedicine medical service--Has the meaning assigned by Texas Occupations Code §111.001(4).

(49) Therapeutic team--A group of staff members who work together in a coordinated manner for the purpose of providing comprehensive mental health services to an individual.

(50) UA--Uniform assessment. A required assessment that assists in determining the medical necessity of services. For adults, the UA includes the Adult Needs and Strengths Assessment (ANSA), community data, relevant rating scales, diagnostic information, and any other state-required assessment tools and procedures. For children or youth, the UA includes the Child and Adolescent Needs and Strengths (CANS) assessment, community data, relevant rating scales, diagnostic information, and any other state-required assessment tools and processes.

(51) Utilization management guidelines--Guidelines developed by HHSC that establish the type, amount, and duration of mental health targeted case management services and mental health rehabilitative services for each individual.

(52) Wraparound Process Planning--A strengths-based approach used in intensive case management to develop an intensive case management plan that addresses the child's or youth's unmet needs across life domains.

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 October 31, 2024.

TRD-202405194

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER N. PEER SPECIALIST SERVICES

DIVISION 1. GENERAL PROVISIONS

1 TAC §354.3001

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.3001.Purpose and Applicability.

(a) Peer specialists providing services under this subchapter support recipients with a mental health condition and/or substance use disorder to actively plan and work toward long-term recovery.

(b) This subchapter establishes requirements for providing peer specialist services through Medicaid and applies only to peer specialist services that are Medicaid reimbursable under this subchapter and other applicable rule or law.

(c) This subchapter implements Texas Government Code §547.0003 [~~§531.0999 of the Texas Government Code~~] and §32.024(kk) of the Texas Human Resources Code, which requires HHSC to include peer specialists as Medicaid providers.

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 October 31, 2024.

TRD-202405195

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER O. ELECTRONIC VISIT VERIFICATION

1 TAC §354.4001, §354.4003

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.4001.Purpose and Authority.

The purpose of this subchapter is to describe requirements related to electronic visit verification authorized by:

(1) Title XIX, Section 1903(l) of the Social Security Act (42 U.S.C. §1396b(l));

(2) Texas Government Code Chapter 532, Subchapter F [~~§531.024172~~]; and

(3) Texas Human Resources Code §161.086.

§354.4003.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) CDS employer--Consumer directed services employer. A member or the member's legally authorized representative who participates in the CDS option and whose financial management services agency (FMSA) uses an electronic visit verification (EVV) vendor system or an EVV proprietary system. A CDS employer is responsible for hiring and retaining a service provider who delivers a service described in §354.4005 of this subchapter (relating to Personal Care Services that Require the Use of EVV) or §354.4006 of this subchapter (relating to Home Health Care Services that Require the Use of EVV).

(2) CDS option--Consumer directed services option. A service delivery option in which a CDS employer employs and retains a service provider and directs the delivery of a service described in §354.4005 or §354.4006 of this subchapter.

(3) CFC--Community First Choice. A Medicaid state plan option governed by Code of Federal Regulations, Title 42, Part 441, Subpart K, Home and Community-Based Attendant Services and Supports State Plan Option (Community First Choice). CFC services include the following.

(A) CFC HAB--CFC habilitation. A Medicaid state plan service that provides habilitation through CFC as described in §354.1361 of this chapter (relating to Definitions).

(B) CFC PAS--CFC personal assistance services. A Medicaid state plan service that provides personal assistance services through CFC as described in §354.1361 of this chapter.

(C) CFC PAS/HAB--CFC personal assistance services/habilitation. A Medicaid state plan service provided through CFC that provides both personal assistance services and habilitation.

(4) CLASS Program--Community Living Assistance and Support Services Program. A Medicaid waiver program approved by the Centers for Medicare & Medicaid Services under Title XIX, Section 1915(c) of the Social Security Act, as described in 26 TAC Chapter 259 (relating to Community Living Assistance and Support Services (CLASS) Program and Community First Choice (CFC) Services).

(5) CMS--Centers for Medicare & Medicaid Services. The federal agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(6) Community Attendant Services Program--A Medicaid state plan program operating under Title XIX of the Social Security Act, as described in 40 TAC Chapter 47 (relating to Primary Home Care, Community Attendant Services, and Family Care Programs).

(7) DBMD Program--Deaf Blind with Multiple Disabilities. The Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 26 TAC Chapter 260 (relating to Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services).

(8) EVV--Electronic visit verification. The documentation and verification of service delivery through an EVV system.

(9) EVV aggregator--A centralized database that collects, validates, and stores statewide EVV visit data transmitted by an EVV system.

(10) EVV claim--A request for payment of a service described in §354.4005 or §354.4006 of this subchapter submitted to HHSC, HHSC's designated contractor, or a managed care organization (MCO) in accordance with the EVV Policy Handbook.

(11) EVV Policy Handbook--A handbook promulgated by HHSC that contains policies and requirements related to EVV.

(12) EVV portal--An online system established by HHSC that allows users to perform searches, view reports and view EVV claim match results associated with data in the EVV aggregator.

(13) EVV portal user--A person who is employed by or contracts with a program provider or FMSA and has access to the EVV portal.

(14) EVV proprietary system--An HHSC EVV system purchased or developed by a program provider or FMSA approved by HHSC in accordance with §354.4013 of this subchapter (relating to HHSC and MCO Compliance Reviews and Enforcement Actions) that a program provider or FMSA uses instead of an EVV vendor system.

(15) EVV system--An EVV vendor system or an EVV proprietary system used to electronically document and verify the data elements described in §354.4009(a) of this subchapter (relating to EVV Visit Transaction and EVV Claim) for a visit conducted to provide a service described in §354.4005 or §354.4006 of this subchapter.

(16) EVV system user--A person who has access to the EVV system, including a person employed by or contracting with a program provider, FMSA, or CDS employer.

(17) EVV vendor system--An EVV system developed and operated by a vendor that contracts with HHSC or HHSC's designated contractor that a program provider or FMSA uses instead of an EVV proprietary system.

(18) EVV visit transaction--A record generated by an EVV system that contains the data elements described in §354.4009(a) of this subchapter for a visit conducted to provide a service described in §354.4005 or §354.4006 of this subchapter.

(19) FC Program--Family Care Program. A program funded under Title XX, Subtitle A of the Social Security Act, as described in 40 TAC Chapter 47.

(20) FMSA--Financial management services agency. A program provider that contracts with HHSC or an MCO to provide financial management services to a CDS employer as described in 40 TAC Chapter 41 (relating to Consumer Directed Services Option).

(21) HCBS-AMH Program--Home and Community-Based Services Adult Mental Health Program. A Medicaid state plan option approved by CMS under Title XIX, Section 1915(i) of the Social Security Act, as described in 26 TAC Chapter 307, Subchapter B (relating to Home and Community-Based Services--Adult Mental Health Program).

(22) HCS Program--Home and Community-based Services Program. A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 26 TAC Chapter 263 (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC)).

(23) HHSC--Texas Health and Human Services Commission.

(24) Home health aide--Has the meaning set forth in 26 TAC §558.2 (relating to Definitions).

(25) ICF/IID--Intermediate care facility for individuals with an intellectual disability or related conditions. An ICF/IID is a facility that is licensed in accordance with THSC Chapter 252 or certified by HHSC.

(26) IMD--Institution for mental diseases. Has the meaning set forth in 25 TAC §419.373 (relating to Definitions).

(27) LVN--Licensed vocational nurse. A person licensed to practice as a vocational nurse as described in Texas Occupations Code Chapter 301.

(28) MCO--Managed care organization. Has the meaning set forth in Texas Government Code §543A.0001 [~~§536.001~~].

(29) MDCP--Medically Dependent Children Program. A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in Chapter 353, Subchapter M of this title (relating to Home and Community Based Services in Managed Care).

(30) MDCP STAR Health covered service--Medically Dependent Children Program STAR Health covered service. A service provided to a member eligible to receive MDCP benefits under the STAR Health Program.

(31) MDCP STAR Kids covered service--Medically Dependent Children Program STAR Kids covered service. A service provided to a member eligible to receive MDCP benefits under the STAR Kids Program.

(32) Member--A person enrolled in one of the following:

(A) traditional Medicaid service delivery model also referred to as fee-for-service;

(B) the CLASS Program;

(D) the DBMD Program;

(E) the FC Program;

(F) the HCBS-AMH Program;

(G) the HCS Program;

(H) the Primary Home Care Program;

(I) the STAR Program;

(J) the STAR Health Program;

(K) the STAR Kids Program;

(L) the STAR+PLUS Program;

(M) the STAR+PLUS Home and Community-Based Services Program;

(N) the STAR+PLUS Medicare-Medicaid Program;

(O) the Texas Home Living Program;

(P) Texas Health Steps Comprehensive Care Program (CCP); or

(Q) the Youth Empowerment Services Program.

(33) Nursing facility--A facility licensed in accordance with Texas Health and Safety Code Chapter 242.

(34) Occupational therapist--A person licensed as an occupational therapist in accordance with Texas Occupations Code Chapter 454.

(35) PCS--Personal Care Services. Support services provided to a member enrolled in Texas Health Steps CCP who requires assistance with activities of daily living or instrumental activities of daily living as described in §363.602 of this title (relating to Definitions).

(36) PDN--Private duty nursing. Has the same meaning as the term "Private duty nursing (PDN) Services" in 1 TAC Chapter 363, Subchapter C, §363.303 (relating to Definitions).

(37) Primary Home Care Program--A Medicaid state plan program operating under Title XIX of the Social Security Act, as described in 40 TAC Chapter 47.

(38) Physical therapist--A person licensed as a physical therapist in accordance with Texas Occupations Code Chapter 453.

(39) Program provider--An entity that contracts with HHSC or an MCO to provide a service described in §354.4005 or §354.4006 of this subchapter and that uses an EVV vendor system or an EVV proprietary system. A service provider described in paragraph (43)(B) of this section is both a program provider and a service provider.

(40) PSO--Proprietary system operator. A program provider or FMSA that uses an EVV proprietary system.

(41) Reason code--A standardized HHSC-approved code entered in an EVV system to explain the reason for completing visit maintenance.

(42) RN--Registered nurse. A person licensed to practice as a registered nurse as described in Texas Occupations Code Chapter 301.

(43) Service provider--A person who provides a service described in §354.4005 or §354.4006 of this subchapter and who:

(A) is employed by or contracting with:

(i) a program provider; or

(ii) a CDS employer; or

(B) who is contracting with:

(i) an MCO; or

(ii) HHSC.

(44) SRO--Service responsibility option. A service delivery option described in 40 TAC Chapter 43 (relating to Service Responsibility Option) in which a member or legally authorized representative selects, trains, and provides daily management of a service provider, while the fiscal, personnel, and service back-up plan responsibilities remain with the program provider.

(45) STAR--State of Texas Access Reform.

(46) STAR Health Program--A Medicaid program operating under Title XIX, Section 1915(a) of the Social Security Act and Texas Family Code, Chapter 266. The program provides services through a managed care delivery model to a member enrolled in STAR Health as described in Chapter 353, Subchapter H of this title (relating to STAR Health).

(47) STAR Kids Program--A Medicaid program operating under Title XIX, Section 1115 of the Social Security Act and Texas Government Code Chapter 540 [~~533~~]. The program provides services through a managed care delivery model to a member enrolled in STAR Kids as described in Chapter 353, Subchapter N of this title (relating to STAR Kids).

(48) STAR Program--A Medicaid program operating under Title XIX, Section 1115 of the Social Security Act. The program provides services through a managed care delivery model to a member enrolled in STAR as described in Chapter 353, Subchapter I of this title (relating to STAR).

(49) STAR+PLUS HCBS Program--STAR+PLUS Home and Community-Based Services Program. A Medicaid program operating through a federal waiver under Title XIX, Section 1115 of the Social Security Act. The program provides services to a member eligible to receive HCBS benefits under the STAR+PLUS Program, as described in Chapter 353, Subchapter M of this title (relating to Home and Community Based Services in Managed Care).

(50) STAR+PLUS MMP--STAR+PLUS Medicare-Medicaid Plan. A managed care program operating under Title XIX, Section 1115A of the Social Security Act that provides the authority to test and evaluate a fully integrated care model for clients who are dual eligible. The STAR+PLUS MMPs contract with CMS and HHSC to participate in the Dual Demonstration Program described in Chapter 353, Subchapter L of this title (relating to Texas Dual Eligibles Integrated Care Demonstration Project).

(51) STAR+PLUS Program--A Medicaid program operating under Title XIX, Section 1115 of the Social Security Act, and Texas Government Code Chapter 540 [~~533~~]. The program provides services through a managed care delivery model to a member enrolled in STAR+PLUS as described in Chapter 353, Subchapter G of this title (relating to STAR+PLUS).

(52) TAC--Texas Administrative Code.

(53) Texas Health Steps CCP--Texas Health Steps Comprehensive Care Program. A Medicaid comprehensive program approved by CMS under Title XIX, Section 1905 of the Social Security Act, as described in Chapter 363 of this title (relating to Texas Health Steps Comprehensive Care Program.

(54) TxHmL--Texas Home Living Program. A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 26 TAC Chapter 262 (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC)).

(55) Vendor hold--A temporary suspension of payments for claims that are due to a program provider or FMSA.

(56) Visit maintenance--As described in the EVV Policy Handbook, a process to:

(A) manually enter data elements described in §354.4009(a) of this subchapter in an EVV system;

(B) correct the data elements described in §354.4009(a) of this subchapter that are inaccurate in an EVV visit transaction; or

(57) YES Program--Youth Empowerment Services Program. A Medicaid waiver approved by CMS under Title XIX, Section 1915(c) of the Social Security Act as described in 26 TAC Chapter 307, Subchapter A (relating to Youth Empowerment Services (YES)).

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 October 31, 2024.

TRD-202405196

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER P. AUTISM SERVICES

DIVISION 2. SERVICE PROVIDERS

1 TAC §354.5011

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 521, 524, 532, 543A, 547, 548, and 549.

§354.5011.Providers of Applied Behavior Analysis (ABA) Services.

(a) Providers of ABA services include:

(1) LBAs who:

(A) practice within the LBA's state scope of practice and licensure requirements, meet all relevant provider qualifications, and comply with all applicable law, rules, and requirements under this subchapter;

(B) are currently enrolled in Texas Medicaid through TMHP;

(C) for claims submission purposes, serve as the Medicaid enrolled rendering provider for all ABA evaluation, treatment, and supervision services, including those ABA services rendered under the LBA's supervision by an LaBA or a BT, as applicable, where the rendering provider for the specific service, which may be the LBA, LaBA, or BT, may or must, as applicable, be indicated on the claim with an appropriate Medicaid modifier; and

(D) may provide the following Medicaid reimbursable ABA services when authorized:

(i) ABA evaluation and treatment services to the child;

(ii) education and training services to the LAR, parent, or caregiver, as applicable;

(iii) supervision services for the LaBA or BT, as applicable, to whom the LBA has delegated service delivery; and

(iv) required participation in ABA-related interdisciplinary team meetings, if utilized.

(2) LaBAs who:

(A) practice within the LaBA's state scope of practice and licensure requirements, meet all relevant provider qualifications and comply with all applicable law, rules, and requirements under this subchapter; and

(B) are not Medicaid enrolled but rather render in-person ABA treatment services, parent or caregiver education and training services, or supervision services for a BT, under the supervision of the enrolled LBA.

(3) BTs who:

(A) are currently fully registered or certified as a BT under this subchapter and meet all other relevant provider qualifications;

(B) practice in accordance with their national certification or registration requirements and as directed by the supervising LBA or LaBA, to ensure compliance with all applicable law, rules, and requirements under this subchapter; and

(C) are not Medicaid enrolled but rather render in-person ABA treatment services under the supervision of the enrolled LBA or the LaBA.

(4) Licensed professionals who:

(A) are described in the Autism Section in the TMPPM as eligible licensed professionals for participation in ABA-related interdisciplinary team meetings, other than LBAs; and

(B) participate in Medicaid reimbursable ABA-related interdisciplinary team meetings to coordinate care for the child when eligible.

(b) Providers of ABA services must comply with:

(1) all applicable state and federal law or rule, such as:

(A) Title XIX of the Social Security Act (42 U.S.C. §1396 et seq.) (relating to Grants to States for Medical Assistance Programs);

(B) 42 CFR §440.40(b) (relating to EPSDT) and §§441.50 - 441.62 (relating to Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) of Individuals Under Age 21);

(D) Texas Government Code Chapter 521 [~~531~~ ] (relating to Health and Human Services Commission);

(E) Chapter 352 of this title (relating to Medicaid and Children's Health Insurance Program Provider Enrollment);

(F) Chapter 353 of this title (relating to Medicaid Managed Care);

(G) Chapter 354 of this title (relating to Medicaid Health Services);

(H) Chapter 363 of this title (relating to Texas Health Steps Comprehensive Care Program); and

(I) 25 TAC Chapter 33 (relating to Early and Periodic Screening, Diagnosis, and Treatment);

(2) the Texas Medicaid Provider Agreement, as applicable;

(3) the NCCI;

(4) the current TMPPM, including:

(A) all published updates, including updates made available through bulletins, banners, or other means, and any revisions of published updates;

(B) all published handbooks, standards, and guidelines; and

(5) Texas Family Code Chapter 261 (relating to Investigation of Report of Child Abuse or Neglect); and

(6) retrospective reviews, which include reviews of providers and provider locations, activities, and records to confirm compliance with all applicable law or rule, and other applicable requirements under this subchapter.

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 October 31, 2024.

TRD-202405197

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 355. REIMBURSEMENT RATES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §355.201, concerning Establishment and Adjustment of Reimbursement Rates for Medicaid; §355.311, concerning Medicaid Reimbursement Rates for State Veterans Homes; §355.7001, concerning Reimbursement Methodology for Telemedicine, Telehealth, and Home Telemonitoring Services; §355.8200, concerning Retained Funds for the Uncompensated Care Program; and §355.8261, concerning Federally Qualified Health Center Services Reimbursement.

BACKGROUND AND PURPOSE

FISCAL NOTE

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.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER B. ESTABLISHMENT AND ADJUSTMENT OF REIMBURSEMENT RATES FOR MEDICAID

1 TAC §355.201

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 532, 540, and 548.

§355.201.Establishment and Adjustment of Reimbursement Rates for Medicaid.

(a) Definitions. Unless the context clearly indicates otherwise, the following words and terms when used in this section are defined as follows:

(1) Centers for Medicare & Medicaid Services (CMS)--The federal agency within the United States Department of Health and Human Services responsible for overseeing and directing Medicare and Medicaid.

(2) HHSC--The Texas Health and Human Services Commission or its designee.

(3) Medical assistance--A medical or health care related service, item, or supply that is delivered to a Medicaid recipient and is approved and authorized for payment or reimbursement by HHSC or CMS pursuant to state and federal law.

(4) Program--A specific component of the Medicaid program for which HHSC establishes either a methodology to reimburse a provider or a specific fee, payment rate, or charge that is paid to a provider for medical assistance in accordance with state and federal law.

(5) Provider--A health care practitioner, institution, or other entity that is enrolled in the medical assistance program and is authorized to submit claims for payment or reimbursement of medical assistance.

(b) Purpose. This section implements Texas Government Code §532.0057 [~~§531.021(d) and (e)~~], and applies to all programs that provide medical assistance and to all reimbursement methodologies related to medical assistance prescribed under this chapter.

(c) Establishment of fees, rates, and charges. HHSC establishes fees, rates, and charges to be paid for medical assistance in accordance with:

(1) the formulas, procedures, or methodologies prescribed in this chapter;

(2) applicable state or federal law, policies, rules, regulations, or guidelines;

(3) economic conditions that, in HHSC's determination, substantially and materially affect provider participation; or

(4) available levels of appropriated state and federal funds.

(d) Adjustment of fees, rates, and charges. Notwithstanding any other provision of this chapter, HHSC may adjust fees, rates, and charges paid for medical assistance as necessary to achieve the objectives of Medicaid in a manner consistent with the considerations described in subsection (c) of this section.

(e) Notice. If HHSC establishes or adjusts fees, rates, or charges under this section, HHSC will hold a public hearing and provide notice of the hearing in accordance with §355.105(g) of this title (relating to General Reporting and Documentation Requirements, Methods, and Procedures).

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 October 31, 2024.

TRD-202405198

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES

1 TAC §355.311

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 532, 540, and 548.

§355.311.Medicaid Reimbursement Rates for State Veterans Homes.

(a) The following definitions apply to this section:

(1) Health and Human Services Commission (HHSC)--The state administrative agency authorized to adopt standards and rules to govern reimbursement rates and methodologies for Medicaid nursing facility services pursuant to Government Code §532.0051 [ ~~§531.021~~].

(2) Rate period--The state fiscal year.

(3) State veterans home--A nursing facility as defined in Title 40, Texas Administrative Code (TAC) §176.1 (relating to Definitions) that is contracted with the Department of Aging and Disability Services (DADS) under 40 TAC §19.2322 (relating to Medicaid Bed Allocation Requirements) to provide nursing facility services to eligible Medicaid recipients who reside in a state veterans home.

(4) Department of Aging and Disability Service (DADS)--The state administrative agency authorized to contract for nursing facility services to Medicaid recipients pursuant to Chapter 32, Human Resources Code.

(5) Veterans Land Board (VLB)--The state administrative agency authorized under Chapter 164, Natural Resources Code, to establish and operate state veterans homes.

(b) DADS reimburses the VLB for nursing facility services provided by the VLB to Medicaid clients in state veterans homes.

(d) Interim reimbursement rates for state veterans homes are determined prospectively for each home based on the state veterans home semi-private basic daily rate in effect on the first day of the rate period. Rates are reconciled retrospectively based on actual cost in accordance with subsection (j) of this section.

(e) The facility-specific payment rate, as determined in subsection (d) of this section, will be paid for all Medicaid eligible residents of a state veterans home regardless of the case mix classification of the resident.

(f) Veterans Administration (VA) per diem payments to the State of Texas VLB for nursing home care as defined in 38 Code of Federal Regulations (CFR) §51.40 (relating to monthly payment) are not offset against per diem payment rates for Medicaid-eligible residents of a state veterans home.

(g) Residents of a state veterans home are not eligible to receive the supplemental reimbursements authorized under §355.307(b)(3)(E) and (F) of this title (relating to Reimbursement Setting Methodology).

(h) State veterans homes are not eligible to participate in §355.308 of this title (relating to Direct Care Staff Rate Component).

(i) The VLB submits financial and statistical information in a format designated by HHSC. The financial and statistical information must be completed in accordance with the provisions of §355.102 and §355.103 of this title (relating to General Principles of Allowable and Unallowable Costs; and Specifications for Allowable and Unallowable Costs). This information may be reviewed or audited in accordance with §355.106 of this title (relating to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports). Financial and statistical information submitted by the VLB is not included in the cost report databases used in the reimbursement determination process for the Texas Medicaid Nursing Facility program.

(j) For each state veterans home, the interim reimbursement rate is adjusted retrospectively based on actual costs accrued during the rate period.

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 October 31, 2024.

TRD-202405199

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER G. ADVANCED TELECOMMUNICATIONS SERVICES AND OTHER COMMUNITY-BASED SERVICES

1 TAC §355.7001

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 532, 540, and 548.

§355.7001.Reimbursement Methodology for Telemedicine, Telehealth, and Home Telemonitoring Services.

(a) Eligible providers performing telemedicine medical, telehealth, or home telemonitoring services are defined in §354.1430 of this title (relating to Definitions), §354.1432 of this title (relating to Telemedicine and Telehealth Benefits and Limitations), and §354.1434 of this title (relating to Home Telemonitoring Benefits and Limitations).

(b) The Health and Human Services Commission (HHSC) reimburses eligible distant site professionals providing telemedicine medical services as follows:

(1) Physicians are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8085 of this title (relating to Reimbursement Methodology for Physicians and Other Practitioners).

(2) Physician assistants are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8093 of this title (relating to Reimbursement Methodology for Physician Assistants).

(3) Advanced Practice Registered Nurses (APRNs) are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8281 of this title (relating to Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists).

(4) Certified nurse midwives are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8161 of this title (relating to Reimbursement Methodology for Midwife Services).

(1) Licensed professional counselors, including licensed marriage and family therapists, and licensed clinical social workers (including Comprehensive Care Program social workers) are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8091 of this title (relating to Reimbursement to Licensed Professional Counselors, Licensed Clinical Social Workers, and Licensed Marriage and Family Therapists).

(2) Licensed psychologists (including licensed psychological associates) and psychology groups are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8085 of this title.

(3) Durable medical equipment suppliers are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8023 of this title (relating to Reimbursement Methodology for Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS)).

(d) Telemedicine and telehealth patient site locations, as defined in §354.1430 and §354.1432 of this title, are reimbursed a facility fee determined by HHSC.

(e) HHSC reimburses eligible providers performing home telemonitoring services in the same manner as their other professional services described in §355.8021 of this title (relating to Reimbursement Methodology for Home Health Services).

(f) Telemedicine medical services provided in a school-based setting by a physician, even if the physician is not the patient's primary care physician, will be reimbursed in accordance with the applicable methodologies described in subsection (b)(1) of this section and §355.8443 of this title (relating to Reimbursement Methodology for School Health and Related Services (SHARS)) if the following conditions are met:

(1) the physician is an authorized health care provider under Medicaid;

(2) the patient is a child who receives the service in a primary or secondary school-based setting;

(3) the parent or legal guardian of the patient provides consent before the service is provided; and

(4) a health professional as defined by Texas Government Code §548.0101 [~~Government Code §531.0217(a)(1)~~ ] is present with the patient during the treatment.

(g) Fees for telemedicine, telehealth, and home telemonitoring services are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates 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 October 31, 2024.

TRD-202405200

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 11. TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT

1 TAC §355.8200

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 532, 540, and 548.

§355.8200.Retained Funds for the Uncompensated Care Program.

(a) Introduction. Texas Healthcare Transformation and Quality Improvement Program under §1115(a), Medicaid demonstration waiver payments available under this division help to defray the uncompensated cost of charity care provided by eligible hospitals and physician practices on or after October 1, 2019. Participation in the Texas Healthcare Transformation and Quality Improvement Program is subject to an application fee.

(b) Definition. A non-public provider, when the term is used in this section, is defined as a provider who is owned by any entity other than a unit of local, state, or federal government.

(d) Application Fee. An application fee will be required with the submission of the application described in §355.8212(c)(2) of this subchapter.

(1) The application fee will be determined annually based upon an estimate of the amount equal to the estimated costs necessary to administer the program and will be posted on the Texas Health and Human Services Commission Provider Finance Department website.

(2) Payment is due at the time of the submission of the application. If no payment is received with the application, an account receivable will be established. HHSC will offset the next applicable payment to the provider against the account receivable until the obligation to the state is discharged.

(3) Payment must be made in the manner determined by HHSC and in compliance with payment instructions that will be posted on the HHSC Provider Finance Department website.

(e) Uses of the Funds and Limitations.

(1) The total amount received from the application fee may not exceed $8,000,000 annually when combined with any other funds retained under the authority of Texas Government Code §532.0102 [~~§531.021135~~].

(2) HHSC will spend money retained under this section to assist in paying the costs necessary to administer the program for which the money is received. HHSC will not use the money to pay any type of administrative cost that was funded with general revenue before June 1, 2019.

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 October 31, 2024.

TRD-202405201

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

DIVISION 14. FEDERALLY QUALIFIED HEALTH CENTER SERVICES

1 TAC §355.8261

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapters 532, 540, and 548.

§355.8261.Federally Qualified Health Center Services Reimbursement.

(a) Prospective Payment System (PPS) Methodology. Federally Qualified Health Centers (FQHCs) selecting the PPS methodology, in accordance with section 1902(bb) of the Social Security Act, as amended by the Benefits Improvement and Protection Act (BIPA) of 2000 (42 U.S.C. §1396a(bb)), effective for the FQHC's fiscal year that includes dates of service occurring January 1, 2001, and after, will be reimbursed a PPS per visit encounter rate for Medicaid covered services. FQHCs are reimbursed a prospective per visit encounter rate for a visit that meets the requirements of subsections (b)(12) and (13) of this section. The final base rate for each FQHC existing in 2000 was calculated based on one hundred percent (100%) of the average of the FQHC's reasonable costs for providing Medicaid covered services as determined from audited cost reports for the FQHC's 1999 and 2000 fiscal years. The final base rate was calculated by adding the total audited reimbursable costs as determined from the 1999 and 2000 cost reports and dividing by the total audited visits for these same two periods. The reimbursement methodologies described in subsection (b) of this section apply to the PPS methodology, except for the following:

(1) The effective rate for APPS described in subsection (b)(4) of this section does not apply to PPS. Increases in the final base rate or the effective rate for a PPS-reimbursed FQHC shall be the rate of change in the Medicare Economic Index (MEI) for primary care. If the increase in an FQHC's costs is greater than the MEI for PPS, an FQHC may request an adjustment of its effective rate as described in subsection (b)(6) of this section.

(2) State initiated reviews, described in subsection (b)(10)(D) of this section, are not applicable for providers who select the PPS methodology.

(b) Alternative Prospective Payment System (APPS) Methodology. FQHCs selecting the APPS methodology, in accordance with section 1902(bb) of the Social Security Act, as amended by the Benefits Improvement and Protection Act (BIPA) of 2000 (42 U.S.C. §1396a(bb)), effective for the FQHC's fiscal year that includes dates of service occurring January 1, 2001, and after, are reimbursed an APPS per visit encounter rate for Medicaid covered services at one hundred percent (100%) of reasonable costs. FQHCs are reimbursed a prospective per visit encounter rate for a visit that meets the requirements of paragraphs (12) and (13) of this subsection. The final base rate for each FQHC existing in 2000 was calculated based on one hundred percent (100%) of the average of the FQHC's reasonable costs for providing Medicaid covered services as determined from audited cost reports for the FQHC's 1999 and 2000 fiscal years. The final base rate was calculated by adding the total audited reimbursable costs as determined from the 1999 and 2000 cost reports and dividing by the total audited visits for these same two periods.

(1) Prior to the Health and Human Services Commission (HHSC) setting a final base rate pursuant to this section for each FQHC existing in 2000, each FQHC was reimbursed on the basis of an interim base rate. The interim base rate for each FQHC was calculated from the latest finalized cost report settlement, adjusted as provided for in paragraph (4) of this subsection. When HHSC determined a final base rate, interim payments were reconciled back to the beginning of the interim period. For FQHCs that agreed to the APPS methodology prior to August 31, 2010, adjustments were made to the FQHC's interim payments only if the interim payments were less than what would have occurred under the final base rate. Paragraph (10) of this subsection contains the interim and final base rate methodology for new FQHCs. The final base rate, as adjusted, applies prospectively from the date of the final approval. Payments made under the APPS methodology will be at least equal to the amount that would be paid under PPS.

(2) Reasonable costs, as used in setting the interim or final base rate or any subsequent effective rate, is defined as those costs that are allowable under Medicare Cost Principles, as outlined in 42 C.F.R. part 413, with no productivity screens and no per visit payment limit. Administrative costs will be limited to thirty percent (30%) of total costs in determining reasonable costs. Reasonable costs do not include unallowable costs.

(3) Unallowable costs are expenses that are incurred by an FQHC and that are not directly or indirectly related to the provision of covered services, according to applicable laws, rules, and standards. An FQHC may expend funds on unallowable cost items, but those costs must not be included in the cost report/survey, and they are not used in calculating an interim or final base rate determination. Unallowable costs include, but are not necessarily limited to, the following:

(A) compensation in the form of salaries, benefits, or any form of compensation given to individuals who are not directly or indirectly related to the provision of covered services;

(B) personal expenses not directly related to the provision of covered services;

(C) management fees or indirect costs that are not derived from the actual cost of materials, supplies, or services necessary for the delivery of covered services, unless the operational need and cost effectiveness can be demonstrated;

(D) advertising expenses other than those for advertising in the telephone directory yellow pages, for employee or contract labor recruitment, and for meeting any statutory or regulatory requirement;

(E) business expenses not directly related to the provision of covered services. For example, expenses associated with the sale or purchase of a business or expenses associated with the sale or purchase of investments;

(F) political contributions;

(G) depreciation and amortization of unallowable costs, including amounts in excess of those resulting from the straight line depreciation method; capitalized lease expenses, less any maintenance expenses, in excess of the actual lease payment; and goodwill or any excess above the actual value of the physical assets at the time of purchase. Regarding the purchase of a business, the depreciable basis will be the lesser of the historical but not depreciated cost to the previous owner or the purchase price of the assets. Any depreciation in excess of this amount is unallowable;

(H) trade discounts and allowances of all types, including returns, allowances, and refunds, received on purchases of goods or services. These are reductions of costs to which they relate and thus, by reference, are unallowable;

(I) donated facilities, materials, supplies, and services including the values assigned to the services of unpaid workers and volunteers whether directly or indirectly related to covered services, except as permitted in 42 C.F.R. part 413;

(J) dues to all types of political and social organizations and to professional associations whose functions and purpose are not reasonably related to the development and operation of patient care facilities and programs or the rendering of patient care services;

(K) entertainment expenses, except those incurred for entertainment provided to the staff of the FQHC as an employee benefit. An example of entertainment expenses is lunch during the provision of continuing medical education on-site;

(L) board of director's fees, including travel costs and meals provided for directors;

(M) fines and penalties for violations of statutes, regulations, and ordinances of all types;

(N) fund raising and promotional expenses, except as noted in subparagraph (D) of this paragraph;

(O) interest expenses on loans pertaining to unallowable items, such as investments. Also the interest expense on that portion of interest paid that is reduced or offset by interest income;

(P) insurance premiums pertaining to items of unallowable costs;

(Q) any accrued expenses that are not a legal obligation of the provider or are not clearly enumerated as to dollar amount;

(R) mileage expense exceeding the current reimbursement rate set by the federal government for its employee travel;

(S) cost for goods or services that are purchased from a related party and that exceed the original cost to the related party;

(T) out-of-state travel expenses not related to the provision of covered services, except out-of-state travel expenses for training courses that increase the quality of medical care and/or the operating efficiency of the FQHC;

(U) over-funding contributions to self-insurance funds that do not represent payments based on current liabilities;

(V) overhead costs beyond the thirty percent (30%) limitation established by HHSC.

(4) The effective rate for APPS - The effective rate is the rate paid to the FQHC for the FQHC's fiscal year. The effective rate shall be updated by the rate of change in the MEI plus (0.5) percent for each of the FQHC's fiscal years since the setting of its final base rate. If the increase in an FQHC's costs is greater than the MEI plus (0.5) percent for APPS, an FQHC may request an adjustment of its effective rate as described in paragraph (6) of this subsection. The effective rate shall be calculated at the start of each FQHC's fiscal year and shall be applied prospectively for that fiscal year. The effective rate for PPS is described in subsection (a)(1) of this section.

(5) PPS and APPS reimbursement methodology selection is determined as follows:

(A) Each new in-state FQHC will receive a letter from HHSC upon enrollment as a new provider along with the Federally Qualified Health Centers (FQHC) Prospective Payment System Form. This form must be signed by an authorized representative and returned to HHSC within thirty (30) days of the enrollment letter date. The form must indicate the selection as either the PPS or APPS reimbursement methodology. If HHSC does not receive the form within the specified time requirement, HHSC will select the PPS reimbursement methodology for this provider. For a provider that fails to return the form selecting the APPS reimbursement methodology, the provider may submit a written request along with the Federally Qualified Health Centers (FQHC) Prospective Payment System Form selecting the APPS reimbursement methodology. Upon approval by HHSC, the new selection will be effective the first day of the provider's next fiscal year.

(B) Each out-of-state FQHCs will receive the PPS reimbursement methodology. Out-of-state FQHCs may not select the APPS reimbursement methodology. HHSC will compute an effective rate based on reasonable costs provided by the FQHC on its most recent Medicare cost report, pursuant to paragraph (8)(A) and (B) of this subsection. The effective rate will reflect the rate that would have been calculated for an in-state FQHC based on the approved scope of services that an in-state FQHC could provide in Texas.

(C) When HHSC makes a change to the PPS or APPS reimbursement methodology, HHSC may require FQHCs to reselect the PPS or APPS reimbursement methodology, in accordance with the requirements of subparagraph (A) of this paragraph.

(6) A change of the effective rate is determined as follows:

(A) An adjustment, as described in paragraph (10)(C) of this subsection, will be made to the effective rate if the FQHC can show that it is operating in an efficient manner as defined in paragraph (7)(B) of this subsection, or show that the adjustment is warranted due to a change in scope as defined in paragraph (7)(A) of this subsection.

(B) HHSC also may adjust the effective rate of an FQHC on its own initiative, in accordance with paragraph (10)(D) of this subsection, if it is determined that a change of scope has occurred and an adjustment to the effective rate as defined in paragraph (7) of this subsection is warranted based on the audit of the cost report described in paragraph (8)(C) of this subsection.

(7) Any request to adjust an effective rate must be accompanied by documentation showing that the FQHC is operating in an efficient manner or that it has had a change in scope. A change in scope provided by an FQHC includes the addition or deletion of a service or a change in the magnitude, intensity or character of services currently offered by an FQHC or one of the FQHC's sites.

(A) A change in scope includes:

(i) an increase in service intensity attributable to changes in the types of patients served, including but not limited to, patients with HIV/AIDS, the homeless, the elderly, migrants, those with other chronic diseases or special populations;

(ii) any changes in services or provider mix provided by an FQHC or one of its sites;

(iii) changes in operating costs that have occurred during the fiscal year and which are attributable to capital expenditures, including new service facilities or regulatory compliance;

(iv) changes in operating costs attributable to changes in technology or medical practices at the FQHC;

(v) indirect medical education adjustments and a direct graduate medical education payment that reflects the costs of providing teaching services to interns and residents; or

(vi) any changes in scope approved by the Health Resources and Service Administration (HRSA).

(B) Operating in an efficient manner includes:

(i) showing that the FQHC has implemented an outcome-based delivery system that includes prevention and chronic disease management. Prevention includes, but is not limited to, programs such as immunizations and medical screens. Disease Management must include, but not be limited to, programs such as those for diabetes, cardiovascular conditions, and asthma that can demonstrate an overall improvement in patient outcome;

(ii) paying employees' salaries that do not exceed the rates of payment for similar positions in the area, taking into account experience and training as determined by the Texas Workforce Commission;

(iii) providing fringe benefits to its employees that do not exceed fifteen percent (15%) of the FQHC's total costs;

(iv) implementing cost saving measures for its pharmacy and medical supplies expenditures by engaging in group purchasing; and

(v) employing the Medicare concept of a "prudent buyer" in purchasing its contracted medical services.

(8) Cost report forms and worksheets are required as follows:

(A) As-Filed Medicare Cost Report. The As-Filed Medicare Cost Report includes:

(i) CMS form 222-92 Independent Rural Health Clinic/Freestanding and Federally Qualified Health Center Worksheet, including the HCFA 339 Form.

(I) Worksheet S part 1 - Statistical Data;

(II) Worksheet S part 2 - Certification By Officer or Administrator;

(III) Worksheet S part 3 - Statistical Data for Clinics Filing Under Consolidated Cost Reporting;

(IV) Worksheet A page 1 - Reclassification and Adjustment of Trial Balance of Expenses;

(V) Worksheet A page 2 - Reclassification and Adjustment of Trial Balance of Expenses;

(VI) Worksheet A-1 - Reclassifications;

(VII) Worksheet A-2 - Adjustments to Expenses;

(VIII) Worksheet A-2-1, Parts I to III - Statement of Cost of Services from Related Organizations;

(IX) Worksheet B part I and II - Visits and Overhead Cost for RHC/FQHC Services; and

(X) Worksheet C part I and II - Determination of Medicare Reimbursement.

(ii) Texas Medicaid Supplemental Worksheets.

(I) Determination of FQHC Cost Based Rate;

(II) Exhibit 1 - Determination of FQHC Medicaid Reimbursable Cost - Rate Worksheet;

(III) Exhibit 2 - Visit Reconciliation - Employed Providers; and

(IV) Exhibit 3 - Visit Reconciliation - Contract Service Providers.

(iii) Trial Balance with account titles. If the provider's Trial Balance has only account numbers, a Chart of Accounts will need to accompany the Trial Balance.

(iv) A mapping of the Trial Balance that shows the tracing of each Trial Balance account to a line and column on Worksheet A pages 1 and 2.

(v) Documentation supporting the provider's reclassification and adjustment entries.

(vi) A Schedule of Depreciation of depreciable assets.

(vii) A listing of all satellites, if applicable.

(viii) Federal Grant Award notices or changes in scope approved by HRSA.

(ix) All items must be complete and accurate.

(B) Final Audited Medicare Cost Report. In-state providers must file the final audited cost report received from Medicare, as required in paragraph (9) of this subsection. The final audited Medicare cost report includes:

(i) A copy of the final audited CMS form 222-92 Independent Rural Health Clinic/Freestanding and Federally Qualified Health Center Worksheets, including the HCFA 339 Form filed with Medicare.

(ii) Texas Medicaid Supplemental Worksheets.

(I) Determination of FQHC Cost Based Rate;

(II) Exhibit 1 - Determination of FQHC Medicaid Reimbursable Cost - Rate Worksheet;

(III) Exhibit 2 - Visit Reconciliation - Employed Providers; and

(IV) Exhibit 3 - Visit Reconciliation - Contract Service Providers.

(iii) All items must be complete and accurate.

(C) Change of Effective Rate Cost Report. The change of effective rate cost report is used by in-state or out-of-state FQHCs that are requesting a change in their effective rate due to a change in scope or operating in an efficient manner. The cost report must contain at least six (6) months of financial information. The documents needed for in-state and out-of-state providers filing a change of effective rate cost report are the same as required for the as-filed cost report in paragraph (8)(A) of this subsection.

(D) Projected Cost Report. The projected cost report is used by in-state or out-of-state FQHCs that are requesting an initial interim rate. The cost report must contain at least twelve (12) months of projected financial information. The required documents are the same as required for the as-filed cost report in paragraph (8)(A) of this subsection, except that the information contained in clauses (iii), (iv) and (v) are not required.

(E) Low Medicare Utilization Cost Report. The low Medicare utilization cost report is used by in-state and out-of-state providers to meet the annual filing requirements for providers not required to file a full cost report with Medicare. A provider filing the Low Medicare Utilization cost report must complete and submit all required forms and supporting documentation described in paragraph (8)(A) of this subsection for all rate determination processes described in paragraph (10) of this subsection.

(F) If a provider fails to submit a required cost report, HHSC or its designee may delay or withhold vendor payment to the provider until a complete cost report has been received and accepted by HHSC or its designee.

(9) Cost Report Filing Requirement. Each FQHC must submit a copy of its Final Audited Medicare Cost Report, as described in paragraph (8)(B) of this subsection, to HHSC or its designee within thirty (30) days of receipt of the report from Medicare. An FQHC filing a Low Utilization Cost Report with Medicare may comply with this subsection by filing a copy of such cost report with HHSC annually, within thirty (30) days of filing the report with Medicare.

(10) FQHC rate determination process.

(A) New FQHC.

(i) A new FQHC must file a projected cost report, pursuant to paragraph (8)(D) of this subsection, within 90 days of their designation as an FQHC to establish an initial interim base rate. The cost report must contain the FQHC's reasonable costs anticipated to be incurred during the FQHC's initial fiscal year. The initial interim base rate for a new FQHC shall be set at the lesser of eighty percent (80%) of the anticipated reasonable costs or eighty percent (80%) of the average rate paid to FQHCs on January 1 of the calendar year during which the FQHC first applies as a new FQHC or for a change in scope, if applicable.

(ii) Each new FQHC must submit to HHSC or its designee an As-Filed Medicare Cost Report, pursuant to paragraph (8)(A) of this subsection, within five (5) calendar months after the end of the FQHC's first full fiscal year. HHSC will determine an updated interim base rate based on one hundred percent (100%) of the reasonable costs contained in the As-Filed Medicare Cost Report. An As-Filed Medicare Cost Report must reflect twelve (12) months of continuous service that meets the requirements of paragraph (7)(B) of this subsection. Interim rates will be adjusted prospectively until the Final Audited Medicare Cost Report reflecting twelve (12) months of continuous service is processed. HHSC will, within eleven (11) months of receipt of the As-Filed Medicare Cost Report reflecting twelve (12) months of continuous service determine the updated interim base rate.

(iii) Each new FQHC must submit to HHSC or its designee a Final Audited Medicare Cost Report, pursuant to paragraph (9) of this subsection. The Final Audited Medicare Cost Report settlement, reflecting twelve (12) months of continuous service, must be completed within eleven (11) months of receipt of a cost report. The rate established shall be the final base rate. HHSC will reconcile payments back to the beginning of the interim period applying the final base rate. If the final base rate is greater than the interim base rate, HHSC will compute and pay the FQHC a settlement payment that represents the difference in rates for the services provided during the interim period. If the final base rate is less than the interim base rate, HHSC will compute and recoup from the FQHC any overpayment resulting from the difference in rates for the services provided during the interim period. The final base rate is adjusted in accordance with paragraph (4) of this subsection to determine the effective rate.

(iv) If a new FQHC cost report described in clause (ii) or (iii) of this subparagraph does not meet the requirement of reflecting twelve (12) months of continuous service that meets the requirements of paragraph (7)(B) of this subsection, HHSC will prospectively establish the interim rate based on the lesser of the interim rate determined by the cost report or eighty percent (80%) of the average rate paid to FQHCs on January 1 of the calendar year during which the FQHC first applies as a new FQHC or for a change in scope, if applicable, adjusted by applicable increases.

(B) Change of Ownership. If an existing FQHC facility changes ownership, the new owner must notify HHSC of the ownership change within ten (10) calendar days of the change.

(i) If the new owner of an FQHC facility owns no other FQHC facility in Texas, HHSC will treat the FQHC facility as a new FQHC. HHSC will set an initial interim base rate equal to one hundred percent (100%) of the previous owner's effective rate, and will then follow the procedures under subparagraph (A)(ii) and (iii) of this paragraph.

(ii) If the new owner of an FQHC facility owns one or more FQHC facilities in Texas and will include the new facility on the Medicare cost report of another FQHC facility, then HHSC will apply the rate assigned to the other FQHC.

(iii) If the new owner of an FQHC facility owns one or more FQHC facilities in Texas, but will not include the new facility on the Medicare cost report of another FQHC facility, then HHSC will determine a rate for the facility in accordance with clause (i) of this subparagraph.

(iv) If the new owner is ultimately not allowed by Medicare to include its new FQHC facility on the Medicare cost report of the other FQHC facility that it owns, then HHSC will determine a rate for the facility in accordance with subparagraph (A) of this paragraph.

(i) An FQHC that requests an adjustment of its effective rate due to a change in scope or operating in an efficient manner must file a Change of Effective Rate Cost Report described in paragraph (8)(C) of this subsection. The FQHC must include the necessary documentation to support a claim that the FQHC has undergone a change in scope or is operating in an efficient manner pursuant to paragraph (7) of this subsection. A cost report filed to request an adjustment in the effective rate may be filed at any time during an FQHC's fiscal year, but no later than five (5) calendar months after the end of the FQHC's fiscal year. All requests for adjustment in the FQHC's effective rate must include at least six (6) months of financial data. Within sixty (60) days of receiving the Change of Effective Rate Cost Report described in paragraph (8)(C) of this subsection, HHSC or its designee will make a determination regarding a new interim base rate.

(ii) If HHSC determines through the review of the information provided in clause (i) of this subparagraph that an adjustment to the effective rate is warranted, HHSC will determine an interim base rate based on one hundred percent (100%) of the reasonable costs contained in the Change of Effective Rate Cost Report. Interim payments will be adjusted prospectively until the final audited cost report is processed.

(iii) The FQHC must submit to HHSC or its designee an As-Filed Medicare Cost Report, described in paragraph (8)(A) of this subsection, within five (5) calendar months after the end of the FQHC's fiscal year. HHSC and the FQHC will then follow the procedures under subparagraph (A)(ii) and (iii) of this paragraph.

(D) State Initiated Review.

(i) For an in-state FQHC that has chosen the APPS methodology, HHSC may prospectively reduce the FQHC's effective rate to reflect one hundred percent (100%) of its reasonable costs or the PPS effective rate, whichever is greater. After reviewing the Final Audited Medicare Cost Report described in paragraph (8)(B) of this subsection, HHSC will determine if an in-state FQHC is being reimbursed more than one hundred percent (100%) of its reasonable cost or the PPS effective rate, whichever is greater, through the following steps:

(I) Determine the reasonable cost per encounter from the Final Audited Medicare Cost Report;

(II) Determine the effective PPS rate per encounter as would have been applied to the FQHC if the FQHC had chosen PPS as described in subsection (a) of this section for the same time period corresponding to the FQHC's Final Audited Medicare Cost Report described in subclause (I) of this clause;

(III) Select the greater of subclause (I) or (II) of this clause;

(IV) If the result in subclause (III) of this clause is less than the APPS effective rate for this period, HHSC will set the result in subclause (III) of this clause as the new final base rate for this period;

(V) The prospective rate described in clause (iii) of this subparagraph will be determined by adjusting the new final base rate from subclause (IV) of this clause in accordance with paragraph (4) of this subsection to determine the effective rate.

(VI) The new final base rate from subclause (IV) of this clause and subsequent effective rates will not apply to claims for services provided prior to the implementation date described in clause (iii) of this subparagraph.

(ii) State initiated reviews will be based on a determined twelve (12) month time period and the most recent cost data received in accordance with paragraph (9) of this subsection. For any provider filing a Low Utilization Cost Report with Medicare in accordance with paragraph (9) of this subsection, upon request by HHSC, the provider must complete and submit the forms and worksheets described in paragraph (8)(A) of this subsection for the fiscal years ending within the determined twelve (12) month time period, even if the cost report was not required to be filed by Medicare.

(iii) HHSC will apply the state initiated rate reduction prospectively beginning on the first day of the month following forty-five (45) days after the date of the Final Base Rate Notification letter. The final base rate is adjusted in accordance with paragraph (4) of this subsection to determine the effective rate.

(iv) HHSC will not increase the effective rate for an FQHC based on the outcome of a state-initiated cost report audit. It is the responsibility of the FQHC to request HHSC to adjust the effective rate if the FQHC can show that it is operating in an efficient manner as defined in paragraph (7)(B) of this subsection, or can show a change in scope as defined in paragraph (7)(A) of this subsection.

(v) For PPS the state initiated reviews is not applicable, as described in subsection (a)(2) of this section.

(E) Final Base Rate Notification Letter. HHSC will provide to an FQHC written notification of any determined final base rate forty-five (45) days prior to implementation of the final base rate. The effective date of the final base rate is determined by the applicable FQHC Rate Determination Process described in subparagraph (A) - (D) of this paragraph.

(F) Request for Review of Final Base Rate. The FQHC may submit a written request for review of the final base rate within 30 days of the date of the Final Base Rate Notification Letter in the circumstances described in clauses (i) - (iii) of this subparagraph.

(i) The FQHC believes that HHSC made a mathematical error or data entry error in calculating the FQHC's reasonable cost. The request for review must include the supporting documentation of the perceived mathematical error or data entry error in calculating the final base rate. HHSC will evaluate the request for review and the merit of the supporting documentation. If HHSC determines the request for review merits a change in the final base rate, HHSC will adjust the final base rate to the effective date of the Final Base Rate Notification Letter.

(ii) The FQHC believes that the FQHC made an error in reporting its cost or data in the Texas Medicaid Supplemental Worksheets described in paragraph (8)(A) of this subsection that would result in a different calculation of the FQHC's reasonable cost. The request for review must include the corrected Texas Medicaid Supplemental Worksheets and supporting documentation of the correction of error in reporting of cost or data. If HHSC determines the request for review merits a change in the final base rate, HHSC may adjust the final base rate to the effective date of the Final Base Rate Notification Letter.

(iii) The FQHC believes that the FQHC made an error in reporting its cost or data in the Final Audited Medicare Cost Report described in paragraph (8)(B) of this subsection that would result in a different calculation of the FQHC's reasonable cost. The request for review must include the correspondence submitted to the Medicare fiscal intermediary to amend the Medicare cost report. HHSC will consider the request for review upon receipt of the provider amended Final Audited Medicare Cost Report and supporting documentation of the correction of error in reporting of cost or data. If HHSC determines the request for review merits a change in the final base rate, HHSC may adjust the final base rate to the effective date of the Final Base Rate Notification Letter.

(iv) HHSC will send the FQHC written notification of the results of its request for review.

(v) If the FQHC disagrees with the results of the review in clause (iv) of this subparagraph, the FQHC may formally appeal in accordance with §§357.481 - 357.490 of this title (relating to Hearings Under the Administrative Procedure Act).

(11) In the event that the amount paid to an FQHC by a managed care organization (MCO) or dental managed care organization (DMO) is less than the amount the FQHC would receive under PPS or APPS, whichever is applicable, the state will ensure the FQHC is reimbursed the difference on at least a quarterly basis. The state's supplemental payment obligation will be determined by subtracting the baseline payment under the contract for services being provided from the effective PPS or APPS rate without regard to the effects of financial incentives that are linked to utilization outcomes, reductions in patient costs, or bonuses.

(12) A visit is a face-to-face, telemedicine, or telehealth encounter between an FQHC patient and a physician, physician assistant, nurse practitioner, certified nurse-midwife, visiting nurse, a qualified clinical psychologist, clinical social worker, other health professional for mental health services, dentist, dental hygienist, or an optometrist. Encounters with more than one health professional and multiple encounters with the same health professional that take place on the same day and at a single location constitute a single visit, except where one of the following conditions exist:

(A) after the first encounter, the patient suffers illness or injury requiring additional diagnosis or treatment; or

(B) the FQHC patient has a medical visit and an "other" health visit, as defined in paragraph (13) of this subsection.

(13) A medical visit is a face-to-face, telemedicine, or telehealth encounter between an FQHC patient and a physician, physician assistant, nurse practitioner, certified nurse midwife, or visiting nurse. An "other" health visit includes, but is not limited to, a face-to-face, telemedicine, or telehealth encounter between an FQHC patient and a qualified clinical psychologist, clinical social worker, other health professional for mental health services, a dentist, a dental hygienist, an optometrist, or a Texas Health Steps Medical Screen.

(1) An FQHC that believes an MCO or DMO has improperly denied a claim for payment or has provided insufficient reimbursement may appeal to the MCO or DMO. The MCO or DMO must address provider appeals as required by Texas Government Code §540.0267 [ ~~§533.005(a)(15) and (19)~~] and its contractual obligations with HHSC.

(2) If the MCO or DMO is not able to resolve the appeal, the FQHC may submit a complaint to HHSC for review. If HHSC finds the MCO or DMO has not correctly reimbursed the FQHC in accordance with contractual obligations, HHSC may require the MCO or DMO to reimburse the FQHC and assess remedies against the MCO or DMO in accordance with HHSC's contract with the MCO or DMO.

(3) The state will ensure the FQHC is paid the full PPS or APPS encounter rate for all valid claims.

(4) This subsection applies to claims for services provided by an FQHC on an in-network or out-of-network basis.

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 October 31, 2024.

TRD-202405202

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

SUBCHAPTER D. REIMBURSEMENT METHODOLOGY FOR INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID)

1 TAC §355.456

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.456, concerning Reimbursement Methodology.

BACKGROUND AND PURPOSE

The purpose of the proposal is to update the reimbursement methodology for the Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) high medical needs add-on rates based on the Patient Driven Payment Model Long-Term Care (PDPM LTC) for nursing facilities. The current reimbursement methodology for ICF/IID high medical needs add-on is based on the Resource Utilization Group version 3 (RUG-III) classification system and associated costs. The 88th Legislature, Regular Session, 2023 directed HHSC to "develop and implement a Texas version of the Patient Driven Payment Model methodology for the reimbursement of long-term stay nursing facility services in the Medicaid program" according to the 2024-25 General Appropriations Act, House Bill 1, 88th Legislature, Regular Session, 2023 (Article II, Health and Human Services Commission, Rider 25). The PDPM LTC methodology implements a new nursing facility classification system for Medicaid residents. This amendment uses PDPM LTC classifications to establish the reimbursement methodology for the ICF/IID high medical needs add-ons.

SECTION-BY-SECTION SUMMARY

The amendment to §355.456(d) clarifies that the current high medical needs add-on reimbursement methodology in paragraph (6) applies before September 1, 2025, when the PDPM LTC methodology required under Rider 25 is anticipated to be implemented. New paragraph (7) establishes the revised high medical needs add-on methodology on or after September 1, 2025, using PDPM LTC nursing case-mix classifiers for each high medical needs add-on group. The amendment also removes subsection (j) related to the total Medicaid spending requirement as this provision is no longer applicable.

FISCAL NOTE

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 not create a new regulation;

(6) the proposed rule will not expand, limit, or repeal existing regulation;

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

(8) the proposed rule will not affect the states 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 rule.

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 does 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 rule is in effect, the public benefit will be an appropriate reimbursement methodology for ICF/IID high medical needs add-on based on patient-centered characteristics.

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 HHSC Provider Finance Department, Mail Code H-400, P.O. Box 149030, Austin, Texas 78714-9030, or by email to PFD-LTSS@hhs.texas.gov.

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 HHSCs 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.

§355.456.Reimbursement Methodology.

(a) - (c) (No change.)

(d) Reimbursement rate determination for non-state operated facilities. The Texas Health and Human Services Commission (HHSC) [~~HHSC~~] will adopt the reimbursement rates for non-state operated facilities in accordance with §355.101 of this title (relating to Introduction) and this subchapter.

(1) Covered services. Reimbursement rates combine residential and day program services, i.e., payment for the full 24 hours of daily service.

(2) Level of need (LON) differentiation. Reimbursement rates are differentiated based on the level of need (LON) of the individual receiving the service. The levels of need are intermittent, limited, extensive, pervasive, and pervasive plus.

(3) Cost components determination. The recommended modeled rates are based on cost components deemed appropriate for economically and efficiently operated services. The determination of these components is based on cost reports submitted by Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) providers.

(4) Direct service workers cost area. This cost area includes direct service workers' salaries and wages, benefits, and mileage reimbursement expenses. The reimbursement rate for this cost area is calculated as specified in §355.112 of this title (relating to Attendant Compensation Rate Enhancement).

(5) Direct care trainers and job coaches cost area. This cost area includes direct care trainers' and job coaches' salaries and wages, benefits, and mileage reimbursement expenses. The reimbursement rate for this cost area is calculated as specified in §355.112 of this title.

(6) High Medical Needs Add-on reimbursement rate before September 1, 2025. There is an available add-on reimbursement rate, in addition to the daily reimbursement rate, for certain individuals.

(A) The add-on is based on the Resource Utilization Group (RUG-III) 34 group classification system as described in §355.307 of this title (relating to Reimbursement Setting Methodology before September 1, 2025).

(B) There are three add-on groupings based on certain RUG-III 34 classification groups and the assessed Activities of Daily Living (ADL) score.

(i) Group 1 includes Extensive Services 3 (SE3), Extensive Services 2 (SE2), and Rehabilitation with ADL score of 17-18 (RAD).

(ii) Group 2 includes Rehabilitation with ADL score of 14-16 (RAC), Rehabilitation with ADL score of 10-13 (RAB), Extensive Services 1 (SE1), Special Care with ADL score of 17-18 (SSC), Special Care with ADL score of 15-16 (SSB), and Special Care with ADL score of 4-14 (SSA).

(iii) Group 3 includes Rehabilitation with ADL score of 4-9 (RAA), Clinically Complex with Depression and ADL score of 17-18 (CC2), Clinically Complex with ADL score of 17-18 (CC1), Clinically Complex with Depression and ADL score of 12-16 (CB2), Clinically Complex and ADL score of 12-16 (CB1), Clinically Complex with Depression and ADL score of 4-11 (CA2), and Clinically Complex and ADL score of 4-11 (CA1).

(i) be assigned a RUG-III 34 classification in Group 1, Group 2, or Group 3;

(ii) be a resident of a large state-operated facility for at least six months immediately prior to referral or a resident of a Medicaid-certified nursing facility immediately prior to referral; and

(iii) for residents of a large state-operated facility only, have a LON which includes a medical LON increase as described in 26 TAC §261.241 [~~40 TAC §9.241~~] (relating to Level of Need Criteria), but not be assessed a LON of pervasive plus.

(D) The add-on for each Group is determined based on data and costs from the most recent nursing facility cost reports accepted by HHSC.

(i) For each Group, compute the median direct care staff per diem base rate component for all facilities as specified in §355.308 of this title (relating to Direct Care Staff Rate Component before September 1, 2025); and

(ii) Subtract the average nursing portion of the current recommended modeled rates as specified in subsection (d)(3) of this section.

(7) High Medical Needs Add-on reimbursement rate on or after September 1, 2025. This add-on methodology will be implemented pending implementation of the Patient Driven Payment Model (PDPM) for Long-Term Care (LTC), as specified in §355.318 of this chapter (relating to Reimbursement Setting Methodology for Nursing Facilities on or after September 1, 2025).

(A) The add-on is based on the PDPM LTC classification system as described in §355.318 of this chapter.

(B) There are three add-on groupings based on PDPM LTC classification and nursing case-mix classifiers, associated with the assessed nursing score.

(i) Group 1 includes nursing case-mix classifier "E" relating to the Extensive Services category.

(ii) Group 2 includes nursing case-mix classifiers "H" and "L" relating to the Special Care High and Special Care Low categories.

(iii) Group 3 includes nursing case-mix "C" relating to the Clinically Complex category.

(i) be assigned a PDPM LTC nursing case-mix classifier in Group 1, Group 2, or Group 3;

(ii) be a resident of a large state-operated facility for at least six months immediately prior to referral or a resident of a Medicaid-certified nursing facility immediately prior to referral; and

(iii) for residents of a large state-operated facility only, have a LON which includes a medical LON increase as described in 26 TAC §261.241 (relating to Level of Need Criteria), but not be assessed a LON of pervasive plus.

(D) The add-on for each Group is determined based on data and costs from the most recent nursing facility cost reports accepted by HHSC.

(i) Calculate the average number of nursing hours per daily unit of service by dividing total nursing hours by total days of service.

(ii) Calculate the average licensed vocational nurse (LVN) cost per day by multiplying estimated LVN hourly wages by the average number of nursing hours per daily unit of service.

(iii) For each Group, compute the median per diem amount of the nursing care base case-mix adjusted rate component for all facilities as specified in §355.320 of this chapter (relating to Nursing Care Staff Rate Enhancement Program for Nursing Facilities on or after September 1, 2025); and

(iv) Subtract the average nursing daily cost as specified in clause (ii) of this subparagraph from the median per diem amount of the nursing care rate component as specified in clause (iii) of this subparagraph current recommended modeled rates as specified in subsection (d)(3) of this section.

(e) - (i) (No change.)

[(j) Total Medicaid Spending Requirement. Effective for costs and revenues accrued on or after September 1, 2015, through August 31, 2017, all non-state operated ICF/IID providers are required to spend at least 90 percent of revenues received through the ICF/IID daily Medicaid payment rates on Medicaid allowable costs under the ICF/IID program.]

[(1) Compliance with the total Medicaid spending requirement will be determined in the aggregate for all component codes controlled by the same entity across the ICF/IID, Home and Community-based Services (HCS), and Texas Home Living (TxHmL) programs within the same cost report year.]

[(2) Compliance with the spending requirement is determined on an annual basis using cost reports as described in Chapter 355, Subchapter A, of this title (relating to Cost Determination Process) and this subchapter.]

[(A) When a provider changes ownership through a contract assignment, the prior owner must submit a report covering the period from the beginning of the provider's fiscal year to the effective date of the contract assignment as determined by HHSC or its designee. This report is used as the basis for determining compliance with the spending requirement.]

[(B) Providers whose contracts are terminated voluntarily or involuntarily must submit a report covering the period from the beginning of the provider's fiscal year to the date recognized by HHSC or its designee as the contract termination date. This report is used as the basis for determining compliance with the spending requirement.]

[(C) When part of a cost reporting period is subject to spending accountability and part is not subject to spending accountability, a provider may choose to have HHSC divide their costs for the entire cost reporting period between the part of the period subject to spending accountability and the part of the period not subject to spending accountability on a pro-rata basis (i.e., pro-rata allocation). For example, if six months of a twelve month cost reporting period are subject to spending accountability, HHSC would divide the provider's costs for the entire cost reporting period by two to determine the costs subject to spending accountability. Providers who do not choose to have HHSC divide their costs on a pro-rata basis must report their costs for the period subject to spending accountability separately from their costs for the period not subject to spending accountability (i.e., direct reporting). Once a provider indicates to HHSC their choice between a pro-rata allocation and direct reporting for a specific cost reporting period, that choice is irrevocable for that cost reporting period.]

~~[(3) Allowable costs are those described in Chapter 355, Subchapter A, and this subchapter.]~~

[(4) The total Medicaid revenue for an ICF/IID provider participating in the attendant compensation rate enhancement is offset by any recoupment made under §355.112(s) of this title prior to determining compliance with the spending requirement.]

[(5) Providers who fail to meet the 90 percent spending requirement are subject to a recoupment of the difference between the 90 percent spending requirement and their actual Medicaid allowable ICF/IID costs. Recoupments for each rate period under this subsection are limited to the difference between the provider's Medicaid revenues for services provided at the rates subject to spending accountability and what the provider's Medicaid revenues would have been for services provided at the Medicaid rates in effect on August 31, 2015.]

[(6) The contracted provider, owner, or legal entity which received the Medicaid payment is responsible for the repayment of the recoupment amount. Failure to repay the amount due or submit an acceptable payment plan within 60 days of notification results in placement of a vendor hold on all HHSC and Texas Department of Aging and Disability Services contracts controlled by the responsible entity.]

[(7) Prior to each rate period through August 31, 2017, providers will be given the option of receiving the Medicaid rates adopted by HHSC for the rate period and the Medicaid rates that were in effect on August 31, 2015. Providers who chose to receive the Medicaid rates that were in effect on August 31, 2015, will not be subject to the spending accountability requirements described in this subsection.]

[(8) For rate periods beginning on or after September 1, 2017, the Total Medicaid Spending Requirement described in this subsection will no longer apply. Additionally, providers who chose to receive the Medicaid rates that were in effect on August 31, 2015, will receive the rates that were adopted effective September 1, 2015.]

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 1, 2024.

TRD-202405233

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 867-7817

CHAPTER 357. HEARINGS

SUBCHAPTER L. FRAUD INVOLVING RECIPIENTS

1 TAC §357.562

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §357.562, concerning Determination and Disposition of Intentional Program Violations.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Services Officer has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule 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 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 not 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 rule because the amendment only updates references to existing laws.

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 does not impose a cost on regulated persons and is necessary to implement legislation that does not specifically state that §2001.0045 applies to the rule.

PUBLIC BENEFIT AND COSTS

Libby Elliott, Deputy Executive Commissioner, Office of Policy and Rules, has determined that for each year of the first five years the rule is in effect, the public will benefit from rules that accurately cite the laws governing HHSC, Medicaid, and other social services.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 544.

§357.562.Determination and Disposition of Intentional Program Violations.

(a) The Texas Department of Human Services (DHS) determines the existence of intentional program violations; refers cases for investigation, administrative hearings, and prosecution; takes collection action and ensures clients' rights according to applicable Texas criminal statutes and the following:

(1) Temporary Assistance for Needy Families (TANF)--as provided in:

(A) Personal Responsibility and Work Opportunity Act (42 U.S.C. §601 et. seq.);

(B) Human Resources Code, Chapter 31; and

(2) Food Stamp Program--7 Code of Federal Regulations, §§273.16 - 273.18; and

(3) Medicaid Program--42 Code of Federal Regulations, §455.2 and §455.16.

(b) Individuals found to have committed an intentional program violation in the food stamp and/or TANF programs through an administrative disqualification hearing or who have signed a waiver of right to an administrative disqualification hearing are subject to the disqualification periods outlined in §79.1917 of this title (relating to Effect of an Administrative Determination of Intentional Program Violation).

(c) If a person is convicted of a state or federal offense for conduct, as described in §79.2001(c) of this title (relating to Terms and General Policy), and such conduct is committed on or after September 1, 2003, or if the person is granted deferred adjudication or placed on community supervision for that conduct, the person is permanently disqualified from receiving financial assistance.

(d) Individuals found to have committed an intentional program violation in the Food Stamp Program by a court of appropriate jurisdiction, or on the basis of a plea of nolo contendere or otherwise in cases referred for prosecution in state or federal court, are subject to the disqualification periods outlined in §79.1917(a) of this title.

(e) In TANF cases, DHS does not take the needs of the disqualified individual into account during the period he is disqualified when determining the assistance unit's need and amount of assistance. DHS considers any resources and income of the disqualified individual as available to the assistance unit. DHS does not disqualify an individual from the TANF program unless the overissuance of benefits resulting from the intentional violation occurred in the month of October 1988 or later.

(f) Disqualified individuals are ineligible for TANF Medicaid benefits during the disqualification period. However, they may qualify for and receive benefits under provisions of Chapter 2 of this title (relating to Medically Needy and Children and Pregnant Women Programs).

(g) A household member may be charged with an intentional program violation even if he has not actually received benefits to which he is not entitled.

(h) The amount of the intentional program violation claim must be calculated back to the month the act of intentional program violation occurred, regardless of the length of time that elapsed until the determination of intentional program violation was made. However, DHS must not include in its calculation any amount of the overissuance that occurred in a month more than six years from the date the overissuance was discovered for food stamp cases.

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 October 31, 2024.

TRD-202405204

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 360. MEDICAID BUY-IN PROGRAM

1 TAC §360.101

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §360.101, concerning Overview and Purpose.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Services Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule 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 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 not 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.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 532.

§360.101.Overview and Purpose.

(a) This chapter governs the eligibility requirements for the Medicaid Buy-In Program (MBI), which is authorized under Texas Government Code §532.0353 [~~§531.02444 of the Texas Government Code~~], and which provides Medicaid benefits under the option explained in §1902(a)(10)(A)(ii)(XIII) of the Social Security Act (42 U.S.C. §1396a(a)(10)(A)(ii)(XIII)). All references in this chapter to MBI mean the Medicaid Buy-In Program.

(b) MBI is administered by the Texas Health and Human Services Commission (HHSC). All references in this chapter to HHSC mean the Texas Health and Human Services Commission.

(c) MBI provides Medicaid benefits to working persons with disabilities, regardless of age, who apply for Medicaid and meet the requirements explained in this chapter.

(d) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

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 October 31, 2024.

TRD-202405208

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 361. MEDICAID BUY-IN FOR CHILDREN PROGRAM

1 TAC §361.101

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §361.101, concerning Overview and Purpose.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

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 not 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.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 532.

§361.101.Overview and Purpose.

(a) This chapter governs the eligibility requirements for Medicaid Buy-In for Children (MBIC), which is authorized under Texas Government Code §532.0353 [~~§531.02444 of the Texas Government Code~~]. MBIC provides Medicaid benefits under the option explained in §1902(cc) of the Social Security Act (42 U.S.C. §1396a(cc)).

(b) MBIC is a Medicaid buy-in program for children with disabilities administered by the Texas Health and Human Services Commission (HHSC). It provides Medicaid benefits to eligible children with disabilities who are not eligible for Supplemental Security Income (SSI) for reasons other than disability. A child does not have to have applied for SSI in order to meet eligibility requirements for MBIC.

(c) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

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 October 31, 2024.

TRD-202405209

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 370. STATE CHILDREN'S HEALTH INSURANCE PROGRAM

SUBCHAPTER F. SPECIAL INVESTIGATIVE UNITS

1 TAC §370.501

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §370.501, concerning Purpose.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

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 not 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.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 544.

§370.501.Purpose.

(a) This subchapter implements the Health and Human Services Commission's (HHSC), Office of Inspector General (OIG) authority to approve annually, each managed care organization (MCO) plan to prevent and reduce waste, abuse, and fraud. This authority is granted by Texas Government Code §544.0353 [~~Chapter 531, Subchapter C, Government Code, §531.113~~].

(b) An MCO that provides or arranges for the provision of health care services or dental services to an individual under the children's health insurance program (CHIP), must arrange for a special investigative unit to investigate fraudulent claims and other types of program abuse by recipients and providers. An MCO may choose to:

(1) establish and maintain the special investigative unit within the MCO; or

(2) contract with another entity for the investigation.

(1) develop a plan to prevent and reduce waste, abuse, and fraud;

(2) submit the plan annually to the HHSC-OIG for approval each year the MCO is enrolled with the State of Texas; and

(3) submit the plan 90 days before the start of the State fiscal year.

(e) If the MCO elects to contract with another entity for the investigation of fraudulent claims and other types of program abuse as referenced in subsection (b)(2) of this section, the MCO must adhere to all requirements of Title 42, §438.230 of the Code of Federal Regulations.

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 October 31, 2024.

TRD-202405210

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 380. MEDICAL TRANSPORTATION PROGRAM

SUBCHAPTER A. PROGRAM OVERVIEW

1 TAC §380.101

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §380.101, concerning Definitions.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

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 not 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.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 526.

§380.101.Definitions of Terms.

The following words and terms are applicable to this Chapter, Medical Transportation Program (MTP):

(1) Abuse--The willful infliction of intimidation or injury resulting in physical harm, pain, or mental anguish.

(2) Accident--An unexpected event or series of events causing loss or injury to person or property (e.g., automobile).

(3) Adjacent county(ies)--The county or counties that share a common county line or point with the client's county of residence.

(4) Advance funds--Funds authorized in advance of travel and provided to the client or attendant to cover authorized transportation services (e.g., gas money, lodging, and/or meals) for travel to a covered health care service.

(5) Ambulance service--A service paid through HHSC or its designee in an emergency, or non-emergency situation in which transportation in a vehicle other than an ambulance could endanger the recipient's health.

(6) Attendant--

(A) an adult required to accompany a prior authorized MTP client under §380.207(4) of this chapter (relating to Program Limitations);

(B) an adult that accompanies a prior authorized MTP client to provide necessary mobility, personal or language assistance to the client during the time that transportation services are provided;

(C) a service animal that accompanies a prior authorized MTP client to provide necessary mobility or personal assistance to the client during the time that transportation services are provided; or

(D) an adult that accompanies a prior authorized MTP client because a health care provider has submitted a statement of need that the client requires an attendant.

(7) Certification Period--A period of time for which a Transportation for Indigent Cancer Patient client is certified for service.

(8) Children with Special Health Care Needs (CSHCN) services program--A program funded with general revenue and federal funds administered by the Department of State Health Services. Services for eligible children include early identification, diagnosis and evaluation, resulting in early health care intervention.

(9)Covered health care service--A service included in the premium of the health care policy paid by or on behalf of an MTP client.

(10) Demand Response--Transportation that involves using performing provider dispatched vehicles in response to requests from clients or shared one-way trips.

(11) Health and Human Services Commission (HHSC)--The state agency that operates the Medical Transportation Program.

(12) Health Care Provider's Statement of Need--MTP Form 3113 or equivalent submitted by a health care provider which documents the client's need for health care services and/or special transportation accommodations.

(13)Individual Transportation Participant (ITP)--An individual who has been approved for mileage reimbursement at a rate prescribed by HHSC to provide transportation for a prior authorized MTP client to a covered health care service.

(14) Limited Status--A Medicaid client's limitation to a designated provider, either a primary care provider or primary care pharmacy, under the lock-in provisions contained in Chapter 354, Subchapter K of this title (relating to Medicaid Recipient Utilization Review and Control). Clients are limited for specific periods of time as outlined in §354.2405(c) of this title (relating to Utilization Control).

(15) Lodging--A commercial establishment such as a hotel, motel, charitable home or hospital that provides overnight lodging.

(16) Long Distance Trip--Transportation beyond a county adjacent to a client's county of residence or Medicaid managed care service delivery area for the purpose of receiving a covered health care service.

(17) Managed Transportation Organization (MTO)--

(A) a rural or urban transit district created under Chapter 458, Transportation Code;

(B) a public transportation provider defined by §461.002, Transportation Code;

(D) a local private transportation provider approved by HHSC to provide MTP services; or

(E) any other entity HHSC determines meets the requirements.

(18) Mass transit--Public transportation by bus, rail, air, ferry, or intra-city bus either publicly or privately owned, which provides general or special service transportation to the public on a regular and continuing basis. Mass transit is intercity or intra-city transportation and also includes the use of commercial air service to transport clients to an authorized service.

(19) Medicaid--A health care program provided to eligible individuals under 42 U.S.C. §1396a et seq.; 42 C.F.R. §431.53; Texas Human Resources Code, Chapters 22 and 32.

(20) Medically necessary--Services that are:

(A) reasonably necessary to: prevent illness(es) or medical condition(s); maintain function or to slow further functional deterioration; provide early screening, intervention, care, and/or provide care or treatment for eligible clients who have medical condition(s) that cause suffering or pain, physical deformity or limitations in function, or that threaten to cause or worsen a disability, illness or infirmity, or endanger life;

(B) provided at appropriate locations and at the appropriate levels of care for the treatment of the medical condition(s);

(C) consistent with health care practice guidelines and standards endorsed by professionally recognized health care organizations or governmental agencies;

(D) consistent with the diagnosis(es) of the condition(s);

(E) no more intrusive or restrictive than necessary to provide a proper balance of safety, effectiveness, and efficiency;

(F) not experimental or investigative; and

(G) not primarily for the convenience of the client.

(21) Medical Transportation Program (MTP)--The program that provides prior authorized nonemergency transportation services to and from covered health care services, based on medical necessity, for categorically eligible Medicaid clients enrolled in Medicaid, and eligible clients enrolled in CSHCN services program, or the Transportation for Indigent Cancer Patients program who have no other means of transportation.

(22) Minor--An individual under 18 years of age who has never been married or emancipated by court ruling.

(23) Passenger assistance--Transportation from curb at origin to curb at destination, including providing assistance, as required, to clients entering and exiting the vehicle.

(24) Performing provider--An entity that arranges or provides transportation services to a prior authorized MTP client, including subcontractors, independent contractors, lodging and meal vendors, and intercity or intra-city bus services.

(25) Prior authorization--Authorization or approval for the provision of transportation services obtained from MTP or a transportation provider before the services are rendered.

(26) Prior authorized MTP client--A client authorized by HHSC as eligible for Medicaid services under a specific category, or identified by either the CSHCN service program or the TICP program as eligible for program services, who has no other means of transportation to covered health care services.

(27) Reasonable transportation--Transportation using the most cost-effective transportation that meets the client's medical needs:

(A) within a client's local community, county of residence, or county adjacent to a client's county of residence where the client wishes to maintain an ongoing relationship or establish a relationship with a health care provider of his or her choice; or

(B) to a provider or facility within a designated Medicaid managed care service delivery area.

(28) Regional contracted broker--An entity that contracts with HHSC to provide or arrange for the provision of nonemergency transportation services under the MTP, including a full risk broker as referenced in 42 C.F.R. §440.170(a)(4) (relating to nonemergency medical transportation brokerage program).

(29) Routine medical transportation--Prior authorized medical transportation trips, other than long distance trips, to and/or from a facility where covered health care services will be provided.

(30) Service animal--A trained guide dog, signal dog, or other animal to provide assistance to a specified MTP client with a disability.

(31) Sexual harassment--Unwelcome sexual advances, requests for sexual favors, or other unwanted verbal or physical conduct of a sexual nature directed toward an individual by another individual during the provision of transportation services.

(32) Significant traditional provider--An individual or entity that has a documented record of providing transportation services for a minimum of two years.

(33) Special needs--A transportation service that requires the use of a vehicle equipped with a ramp or a mechanical lift to provide the client with a means of accessing the vehicle.

(34) Transportation provider--A regional contracted broker or an MTO.

(35) Transportation for Indigent Cancer Patients (TICP) Program--A state-funded program that provides medical transportation services to individuals diagnosed with cancer or a cancer-related illness and who meet residency and financial criteria.

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 October 31, 2024.

TRD-202405211

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 391. PURCHASE OF GOODS AND SERVICES BY THE TEXAS HEALTH AND HUMAN SERVICES COMMISSION

SUBCHAPTER B. PROCUREMENT AND SPECIAL CONTRACTING METHODS

DIVISION 2. SPECIAL CONTRACTING METHODS

1 TAC §391.247

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §391.247, concerning Direct Contract Award.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citations to the Texas Government Code.

FISCAL NOTE

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 not 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 rule because the amendments only update references to existing laws.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 544.

§391.247.Direct Contract Award.

(a) Texas HHSC Office of Inspector General (OIG) direct contract award. If HHS does not receive any responsive proposals on a competitive solicitation for the services of a qualified expert to review investigative findings under Texas Government Code §544.0104(b) or §544.0105(b) [~~§531.102(l) or §531.102(m)~~], HHS may instead award contracts that are not subject to competitive advertising and proposal evaluation requirements. HHS may negotiate with and award a contract to a qualified expert based on:

(1) the contractor's agreement to set a fee (range or lump-sum); and

(2) the contractor's affirmation and the OIG's verification that the contractor has the necessary occupational licenses and experience.

(b) OIG direct contract awards not subject to competitive advertising. In accordance with Texas Government Code §544.0106(b) [~~§531.102(m-1) and §531.102(m-2)~~], and notwithstanding Texas Government Code §2155.083 and §2261.051, a contract awarded under subsection (a) of this section is not subject to competitive advertising and proposal evaluation requirements.

(c) HHSC state operated facilities direct contract award. If HHSC does not receive any responsive competitive bids or proposals in response to a solicitation for goods or services for a state hospital or a state supported living center as defined by Texas Health and Safety Code §531.002, HHSC, after the procurement director makes a written determination that competition is not available, may negotiate with and award a contract to any qualified vendor who meets the requirements of the original solicitation. The contract must be at current market value price and the term may not exceed five years.

(d) Direct contract award for professional services of physicians, optometrists, and registered nurses. If procuring services in connection with professional employment or practice of a physician, optometrist, or registered nurse as defined by Texas Government Code §2254.002(2)(B)(v), (vi), or (ix) and the number of contracts is not otherwise limited, HHS, DFPS, and TCCO may make the selection and award based on:

(1) the provider's agreement to a set fee, as a range or lump sum amount; and

(2) the provider's affirmation and the HHS, DFPS, or TCCO's verification that the provider has the necessary occupational licenses and experience.

(e) Professional services for physicians, optometrists, and registered nurses not subject to competitive advertising. In accordance with Texas Government Code §2254.008, and notwithstanding Texas Government Code §2155.083 and §2261.051, a contract awarded under subsection (d) of this section is not subject to competitive advertising and proposal evaluation requirements.

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 October 31, 2024.

TRD-202405212

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021

CHAPTER 395. CIVIL RIGHTS

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §395.2

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §395.2, concerning Definitions.

BACKGROUND AND PURPOSE

House Bill 4611, 88th Legislature, Regular Session, 2023, made certain non-substantive revisions to Subtitle I, Title 4, Texas Government Code, which governs HHSC, Medicaid, and other social services as part of the legislature's ongoing statutory revision program. This proposal is necessary to update citations in the rules to Texas Government Code sections that become effective on April 1, 2025. The proposed amendment updates the affected citation to the Texas Government Code.

FISCAL NOTE

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 not 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.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055 and Chapter 521.

§395.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings unless the context clearly indicates otherwise.

(1) Applicant--A person who applies in writing, electronically, orally, or through a designated representative to participate in a program funded, in whole or in part, by an HHS agency.

(2) Complainant--A person who alleges discrimination in access to or the delivery of program services or benefits funded, in whole or in part, by an HHS agency on the basis of race, color, national origin, age, sex, disability, religion, or political belief. (Not all bases apply to all programs.) Political belief is considered a protected class only in the Supplemental Nutrition Assistance Program (SNAP). Other groups may be added as protected classes pursuant to applicable federal or state statutes or rules.

(3) Complaint--An oral or written allegation of discrimination or retaliation made by a complainant.

(4) Contractor--An entity that contracts or agrees through other arrangements with a state agency to provide services or benefits on behalf of an HHS agency. This includes any subcontractor that provides services or benefits on behalf of an HHS agency.

(5) Discrimination--Treatment of an individual that is based on his or her membership in a legally protected class and that has an adverse effect on the individual.

(6) Electronic and information resources (EIR)--Information technology and any equipment or interconnected system or subsystem of equipment that is used in the creation, conversion, or duplication of data or information. EIR includes telecommunication products, information kiosks, transaction machines, websites, multimedia, and office equipment.

(7) HHS agency--The Texas Health and Human Services Commission and the Texas health and human services agencies identified in Government Code §521.0001 [~~§531.001(4)~~].

(8) HHSC--The Texas Health and Human Services Commission.

(9) HHSC Civil Rights Office (CRO)--The functional area within HHSC responsible for ensuring that the HHS agencies comply with applicable state and federal civil rights laws and regulations as well as HHSC's civil rights policies and procedures.

(10) Limited English proficiency (LEP)--A term describing individuals who do not speak English as their primary language and who have limited ability to read, speak, write, or understand English.

(11) Participant--An individual who receives assistance, services, or benefits under any HHS agency program or service.

(12) Protected class--A group or class of persons having a characteristic, quality, belief, or status defined by federal and state civil rights laws and regulations as protected from discrimination. Protected classes or groups, which differ between programs, include race, color, national origin, sex, age, religion, or disability, and may include political belief. Political belief is considered a protected class only in SNAP. Veteran status is a protected class only as to employment-related complaints pursuant to state and federal law. Other groups may be added as protected classes pursuant to applicable federal or state statute or rules.

(13) Retaliation--Adverse treatment of an individual because he or she filed a complaint, participated in the complaint process, or otherwise opposed discriminatory practices.

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 October 31, 2024.

TRD-202405213

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 15, 2024

For further information, please call: (512) 221-9021