Texas Register Table of Contents
- 1 Texas Health and Human Services Commission
- 1.0.1 Proposed Rules Re:
- 1.0.1.1 Amending 1 TAC §355.112, to explain that providers contracted with a managed care organization to provide attendant care services may participate in the Attendant Compensation Rate Enhancement Program through their managed care organizations.
- 1.0.1.2 Amending 1 TAC §355.304, §355.308, to describe eligibility criteria for direct care reimbursement for nursing facilities.
- 1.0.1.3 Amending 1 TAC §355.513, to update the reimbursement methodology for the Deaf-Blind with Multiple Disabilities Waiver Program.
- 1.0.1.4 Amending 1 TAC §355.723, to update reimbursement methodology for Home and Community-Based Services and Texas Home Living Programs.
- 1.0.1.5 Amending 1 TAC §355.7051, to describe base wage requirements for personal attendants.
- 1.0.1.6 Amending 1 TAC §355.8052, to include recent U.S. Census data and to adjust rural hospital inpatient reimbursement methodology.
- 1.0.2 In Addition Re:
- 1.0.2.1 Notice of Public Hearing on Proposed Updates to Medicaid Reimbursement Rules Related to Inpatient Hospital Reimbursement, Outpatient Hospital Reimbursement, Ambulatory Surgical Centers Reimbursement and Renal Dialysis Reimbursement.
- 1.0.2.2 Public Notice to address the proposed change to increase attendant base wages in the Medically Dependent Children Program (MDCP) program.
- 1.0.2.3 Public Notice: Texas State Plan for Medical Assistance Amendment to update the rates and payment methodology for Nursing Facilities.
- 1.0.2.4 Public Notice – Texas State Plan for Medical Assistance Amendment, to modify the definition of rural hospitals in order to reflect data from the 2020 U.S. Census.
- 1.0.2.5 Public Notice – The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Home and Community-based Services (HCS) program.
- 1.0.1 Proposed Rules Re:
- 2 Texas Board of Chiropractic Examiners
- 2.0.1 Proposed Rules Re:
- 2.0.1.1 Repealing 22 TAC §80.5, to clarify information about the Board’s authority to conduct standard of care reviews during complaint investigations.
- 2.0.1.2 New 22 TAC §80.5, clarifying that a reviewer is not authorized to make a legal opinion relating to the liability of any injury in a complaint.
- 2.0.1.3 New 22 TAC §80.8, delineating the policy for processing complaints initiated by Board members and staff.
- 2.0.1.4 New 22 TAC §82.7, authorizing the agency executive director to make employee equity salary adjustments.
- 2.0.1 Proposed Rules Re:
- 3 State Board of Dental Examiners
- 4 Texas Department of Insurance
- 5 Department of State Health Services
Texas Health and Human Services Commission
Proposed Rules Re:
Amending 1 TAC §355.112, to explain that providers contracted with a managed care organization to provide attendant care services may participate in the Attendant Compensation Rate Enhancement Program through their managed care organizations.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
1 TAC §355.112
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.112, concerning Attendant Compensation Rate Enhancement.
BACKGROUND AND JUSTIFICATION
Title 42, Code of Federal Regulations (CFR), §441.301(c)(4)(i) – (v), requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules to implement individualized skills and socialization in the December 23, 2022, issue of the Texas Register.
The 2022-2023 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities (DBMD) programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023.
The proposal replaces day habilitation with individualized skills and socialization services for the purposes of the Attendant Compensation Rate Enhancement Program.
The proposed amendment clarifies that providers contracted with a managed care organization to provide attendant care services may participate in the Attendant Compensation Rate Enhancement Program through their managed care organizations. The amendment removes references to Community Based Alternatives (CBA)–Assisted Living/Residential Care (AL/RC) and CBA–Home and Community Support Services (HCSS). These programs were carved into managed care in 2015, and HHSC neither enrolls these providers in the Attendant Compensation Rate Enhancement Program nor determines spending requirements associated with the program.
The proposed amendment modifies several aspects of the Attendant Compensation Rate Enhancement Program. The proposed amendment changes requirements for participating providers to submit an attendant compensation report for determining spending requirements in the Attendant Compensation Rate Enhancement Program. The proposed amendment clarifies that if providers are required to submit a cost report for a rate year, HHSC will use the cost report as an attendant compensation report. For rate years in which participating providers are not required to submit a cost report, HHSC will require a subset of participating providers to submit an accountability report to serve as an attendant compensation report. These providers will be selected at random from the total number of participating contracts that are not required to submit a cost report for a rate year. The number selected will represent a statistically valid sample of participating providers. The proposed amendment modifies report submission requirements for contracts participating in the Attendant Compensation Rate Enhancement Program undergoing a change of ownership or a contract termination by relaxing the requirement that these providers must submit a report to HHSC. The proposed amendment removes provisions allowing limited providers to submit the request for revision report or request for recalculation while modifying parameters regarding limitations.
The proposed amendment implements some recommendations in HHSC’s legislative report, Rates: Intermediate Care Facilities and Certain Waiver Providers, required by the 2022-2023 GAA, S.B. 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 30). The proposed amendment repeals the requirement that an attendant must perform attendant functions at least 80 percent of his or her total time worked to be considered an attendant for determining spending requirements in the Attendant Compensation Rate Enhancement Program or for calculating the attendant compensation rate component. The amendment provides that any staff who performs attendant functions to prevent a break in service will be considered an attendant.
The proposed amendment modifies the methodology HHSC uses to calculate the attendant compensation rate component for each attendant service. HHSC proposes to calculate the attendant compensation rate component by calculating a median of attendant compensation cost center data weighted by each attendant service units of service from the most recent Medicaid cost report database. The attendant compensation cost component will be inflated using HHSC’s inflation methodology from the cost reporting period to the prospective rate period and limited to available levels of state and federal appropriations.
SECTION-BY-SECTION SUMMARY
- The proposed amendment removes references to CBA–AL/RC and CBA–HCSS throughout the rule. The amendment adds new subsection (b), which provides that providers contracted with a managed care organization to provide attendant care services may participate in the Attendant Compensation Rate Enhancement Program through their managed care organizations. The amendment removes references to CBA–AL/RC and CBA–HCSS as these programs were carved into managed care in 2015, and HHSC neither enrolls these providers in the Attendant Compensation Rate Enhancement Program nor determines spending requirements associated with the program. All following subsections are renumbered.
- The proposed amendment deletes current §355.112(b)(1) to repeal the requirement that an attendant must perform attendant functions at least 80 percent of his or her total time worked to be considered an attendant to determine spending requirements in the Attendant Compensation Rate Enhancement Program or for calculating the attendant compensation rate component.
- The proposed amendment replaces references to day habilitation with individualized skills and socialization for the DBMD, HCS, and TxHmL programs throughout the rule.
- The proposed amendment to current subsection (e) provides that open enrollment ends on the next business day if the last day of open enrollment falls on a weekend day or state or national holiday.
- The proposed amendment to current subsection (h) defines an attendant compensation report as a report reflecting the provider’s activities while delivering contracted services from the first day of the rate year through the last day of the rate year or provider’s fiscal period while participating in the Attendant Compensation Rate Enhancement Program. The proposed amendment specifies that both cost and accountability reports are considered attendant compensation reports.
- New subsection (i)(2) specifies HHSC will require a subset of participating contracted providers to submit an annual attendant compensation report. If a provider is required to submit a cost report for a rate year, HHSC will use the cost report as an attendant compensation report. For providers not required to submit a cost report for a rate year, HHSC will select a subset of these providers at random to submit an accountability report serving as their attendant compensation report. The number of selected providers will represent a statistically valid sample of participating providers for the rate year. The proposed amendment also relaxes the requirement that participating providers who terminate their contracts or undergo a change of ownership must submit an attendant compensation report to HHSC.
- The proposed amendment to current subsection (l) modifies the methodology HHSC uses to calculate the attendant compensation rate component for each attendant service. HHSC proposes to calculate the attendant compensation rate component by calculating a median of attendant compensation cost center data weighted by each attendant service units of service from the most recent Medicaid cost report database. The attendant compensation cost components will be inflated using HHSC’s inflation methodology from the cost reporting period to the prospective rate period and limited to available levels of state and federal appropriations.
- The proposed amendment deletes current §355.112(s)(4), as §355.727 is being repealed through a different proposed amendment.
- The proposed amendment to current subsection (t) deletes paragraph (2) as HHSC no longer performs requests for recalculation.
- The proposed amendment to current subsection (u) deletes paragraph (2) to remove the option for participating providers to submit a request for revision report to overturn a limitation.
Amending 1 TAC §355.304, §355.308, to describe eligibility criteria for direct care reimbursement for nursing facilities.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES
1 TAC §355.304, §355.308
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §355.304, concerning Direct Care Staff Spending Requirement on or after September 1, 2023 and proposes an amendment to §355.308, concerning Direct Care Staff Rate Component.
BACKGROUND AND JUSTIFICATION
The purpose of the proposal is to implement the 2024-25 General Appropriations Act (GAA), House Bill 1, 88th Legislature, Regular Session, 2023 (Article II, Health and Human Services Commission, Rider 24). Rider 24 provides appropriations for rate increases for nursing facilities. Nursing facilities must report to HHSC on their biennial cost report information regarding the use of these funds, including information related to efforts to improve or maintain client care and quality of services, and to demonstrate that at least 90 percent of the funds were expended for the purpose of direct care staff wages or benefits. This proposed new rule operationalizes the rider requirements to enable nursing facilities to receive increased reimbursement rates.
The proposal also proposes an amendment to §355.308 related to the Direct Care Staff Rate Component. The proposed amendment modifies the spending requirement in the direct care staff enhancement program by changing the direct care spending floor to 90 percent of direct care revenues from the current 85 percent requirement. HHSC proposes to make this change to align spending requirements related to the direct care rate increases in new §355.304 and the direct care staff enhancement program in §355.308. The proposed amendment removes provisions allowing limited providers to submit the request for revision report or request for recalculation. The amendment also removes references to reinvestment as this section is no longer applicable. The proposed amendment makes clarifying edits throughout.
SECTION-BY-SECTION SUMMARY
- Proposed new §355.304(a), (b), and (c) introduce the rate increases for direct care reimbursement, including definitions used in the new rule, and outline eligibility criteria for the increases. Subsection (d) specifies the methodology HHSC will use to establish the rate increases. Subsection (e) outlines the spending requirements and circumstances in which payments will be recouped if spending requirements are not met. Subsection (f) details reporting requirements nursing facility providers must comply with to provide direct care revenues and spending information used to demonstrate compliance with spending requirements. Subsection (g) specifies how HHSC will notify providers of any recoupment, the appeals process, and repayment requirements. Subsection (h) specifies reporting requirements for a provider undergoing a change of ownership. Subsection (i) specifies the circumstances where providers will be placed on vendor hold for failing to meet reporting requirements. Subsection (j) allows a controlling entity to aggregate spending of multiple contracts to meet program requirements.
- The proposed amendment to §355.308 updates Texas Administrative Code (TAC) references in Title 40 to Title 26 and updates references to “Department of Aging and Disability Services” to “HHSC.” References to “Rate Analysis” are also deleted as the department has been renamed. The proposed amendment deletes §355.308(i)(2) which allows limited providers to submit the request for revision report. Subsection (k) is amended to modify the methodology HHSC uses to calculate the recommended direct care base rate. HHSC proposes to calculate the direct care base rate using from the most recent Medicaid cost report database. The recommended direct care base rate will be inflated using HHSC’s inflation methodology from the cost reporting period to the prospective rate period and limited to available levels of state and federal appropriations.
- The proposed amendment to subsection (o) modifies the spending requirement for the direct care enhancement program. HHSC proposes to calculate a spending floor by multiplying accrued Medicaid fee-for-service and managed care direct care staff revenues (net any staffing recoupments or recoupments associated with new proposed 355.304) by 0.90.
- The amendment to subsection (s) deletes subparagraph (2) as HHSC no longer accepts requests for recalculation because the process was made obsolete by technology upgrades. Subsection (cc) is deleted as reinvestment is no longer applicable to the direct care staff enhancement program.
Amending 1 TAC §355.513, to update the reimbursement methodology for the Deaf-Blind with Multiple Disabilities Waiver Program.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER E. COMMUNITY CARE FOR AGED AND DISABLED
1 TAC §355.513
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.513, concerning Reimbursement Methodology for the Deaf-Blind with Multiple Disabilities Waiver Program.
BACKGROUND AND JUSTIFICATION
Title 42, Code of Federal Regulations, §441.301(c)(4)(i) – (v), requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules in Title 26 Texas Administrative Code (TAC) Chapter 260 to implement individualized skills and socialization effective January 1, 2023.
The 2022 – 2023 General Appropriations Act (GAA), Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities (DBMD) Programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023.
The purpose of the proposal is to amend the reimbursement methodology for the DBMD Program to remove day habilitation services and establish rate methodologies for individualized skills and socialization services. The proposal also clarifies the rate methodology for residential habilitation transportation, chore, and intervener services by replacing the “other direct care” cost area with an administration and facility cost area to align waiver rate methodology with other similar services.
SECTION-BY-SECTION SUMMARY
- The proposed amendment to §355.513(c)(4) replaces day habilitation with individualized skills and socialization services.
- The proposed amendment to §355.513(c)(7) clarifies the rate methodology for residential habilitation transportation, chore, and intervener services by replacing the “other direct care” cost area with an administration and facility cost area to align waiver rate methodology with other similar services.
- The proposed amendment to §355.513 adds new subsection (d) establishing the methodology for individualized skills and socialization services in the DBMD program to equal the individualized skills and socialization payment rate for individuals with a level of need 9 in the HCS waiver program as specified in 1 TAC §355.723, concerning Reimbursement Methodology for Home and Community-Based Services and Texas Home Living Programs.
- The proposed amendment to §355.513 also renumbers current subsections (d) – (f) to subsections (e) – (g).
Amending 1 TAC §355.723, to update reimbursement methodology for Home and Community-Based Services and Texas Home Living Programs.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER F. REIMBURSEMENT METHODOLOGY FOR PROGRAMS SERVING PERSONS WITH MENTAL ILLNESS OR INTELLECTUAL OR DEVELOPMENTAL DISABILITY
1 TAC §355.723
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.723, concerning Reimbursement Methodology for Home and Community-Based Services and Texas Home Living Programs.
BACKGROUND AND JUSTIFICATION
Title 42, Code of Federal Regulations, §441.301(c)(4)(i) – (v), requires home and community-based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated into and supporting full access of individuals to the greater community. HHSC adopted rules in Title 26 Texas Administrative Code (TAC) Chapters 262 and 263 to implement individualized skills and socialization effective January 1, 2023.
The 2022-2023 General Appropriations Act (GAA), Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf-Blind with Multiple Disabilities Programs. HHSC adopted rates for individualized skills and socialization based on the available appropriations, effective January 1, 2023.
The purpose of the proposal is to amend the reimbursement methodology for the HCS and TxHmL Programs to remove day habilitation and establish rate methodologies for individualized skills and socialization. The proposal also clarifies the rate methodology for each HCS and TxHmL waiver service and implements some recommendations in HHSC’s legislative report, Rates: Intermediate Care Facilities and Certain Waiver Providers, required by the 2022-2023 GAA, S.B. 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 30).
SECTION-BY-SECTION SUMMARY
- The proposed amendment to §355.723 makes changes in subsection (b)(1) to replace day habilitation with individualized skills and socialization in the list of rates that are variable by level of need (LON).
- The proposed amendment to §355.723 makes changes in subsection (b)(2) to add in-home and out-of-home respite, as these service rates do not vary by LON, and deletes references to high medical needs, as these are not currently waiver services. The proposed amendment also removes TxHmL day habilitation from the list of rates that do not vary by LON.
- The proposed amendment to §355.723 removes subsection (c)(1) and (2) and replaces them with proposed new subsection (c)(1) – (6) to describe each of the cost areas HHSC calculates to support recommended methodological rates for HCS and TxHmL services. Proposed new subsection (c)(1) describes the methodology used to calculate the attendant compensation cost area. Proposed new subsection (c)(2) describes the methodology used to calculate the other direct care cost area. Proposed new subsection (c)(3) incorporates the methodology used to calculate the administration and operations cost area currently in subsection (d)(1). The proposed amendment to subsection (c)(5) and (6) describes the methodology used to calculate the facility cost area.
- The proposed amendment to §355.723 removes subsection (d) and replaces it with a new proposed subsection (d) to detail the methodology HHSC uses to calculate recommended rates for each waiver service.
- The proposed amendment to §355.723 adds a new subsection (e) to clarify that HHSC uses a pro forma modeling approach to calculate recommended rates for any waiver service where reliable provider cost data is unavailable.
- The proposed amendment to §355.723 reformats subsection (e) to subsection (f) due to other formatting changes and adds new language to clarify that recommended rates are limited to available appropriations.
- The proposed amendment to §355.723 removes current subsection (f) related to the total Medicaid spending requirement as this provision is no longer applicable.
Amending 1 TAC §355.7051, to describe base wage requirements for personal attendants.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER H. BASE WAGE REQUIREMENTS FOR PERSONAL ATTENDANTS
1 TAC §355.7051
OVERVIEW
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.7051, concerning Base Wage for a Personal Attendant.
BACKGROUND AND JUSTIFICATION
The purpose of the proposed amendment is to implement Rider 30(a) of the 2024-25 General Appropriations Act, Article II, HHSC, House Bill 1, 88th Legislature, Regular Session, 2023 (Rider 30(a)). Rider 30(a) appropriates funds to HHSC to increase the minimum base wage paid to “personal attendants” from $8.11 to $10.60 per hour. In response to Rider 30(a), HHSC must update its program requirements to require service providers to pay this updated minimum base wage. To ensure consistency and clarity, the proposed amendment also adds additional services to the definition of “personal attendant,” including services in the Home and Community-based Services 1915(c) waiver program, the Texas Home Living 1915(c) waiver program, and the Home and Community-based Services–Adult Mental Health program. In addition, the proposed amendment replaces day habilitation with individualized skills and socialization services.
SECTION-BY-SECTION SUMMARY
- The proposed amendment to §355.7051 updates all references to the current minimum wage for personal attendants from $8.11 to $10.60.
- The proposed amendment to §355.7051(a) replaces “day habilitation” with “individualized skills and socialization services” in the Deaf-Blind with Multiple Disabilities Waiver (DBMD), Home and Community-Based Services Waiver (HCS) and Texas Home Living Waiver (TxHmL) programs. The proposed amendment also adds supervised living and residential support services in the HCS program; and assisted living services, in-home respite, and supervised living and residential support services in the Home and Community-Based Service–Adult Mental Health program to the list of services subject to minimum wage requirements for personal attendant services.
- Minor editorial revisions were made for formatting and to add references.
Amending 1 TAC §355.8052, to include recent U.S. Census data and to adjust rural hospital inpatient reimbursement methodology.
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER J. PURCHASED HEALTH SERVICES
1 TAC §355.8052
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §355.8052, concerning Inpatient Hospital Reimbursement.
BACKGROUND AND PURPOSE
The purpose of this proposal is to comply with House Bill (H.B.) 1 Rider 8 and Rider 16, 88th Legislature, Regular Session 2023. HHSC is required by H.B. 1, to the extent allowed by law, to increase Medicaid inpatient rural hospital labor and delivery rates. Additionally, the rural hospital definition is modified to reflect the population updates in the 2020 U.S. Census. In compliance with Senate Bill 170 (S.B. 170), 86th Legislature, Regular Session 2019, to the extent allowed by law, HHSC will calculate Medicaid rural hospital inpatient rates using a cost-based prospective reimbursement methodology. HHSC must calculate rates for rural hospitals once every two years, using the most recent cost information available. HHSC previously published proposed rates to be effective September 1, 2023, and, with this legislative direction, will account for the updates in this proposed rule and republish rates.
SECTION-BY-SECTION SUMMARY
- The proposed amendment modifies §355.8052(b)(32)(A) by changing the U.S. Census year from “2010” to “2020” and population from “60,000” to “68,750”.
- The proposed amendment modifies §355.8052(e)(2) by changing the effective date from “September 1, 2019” to “September 1, 2023” and to change the labor and delivery Standard Dollar Amount add-on payment from “no less than $500” to “no less than $1,500”.
In Addition Re:
Notice of Public Hearing on Proposed Updates to Medicaid Reimbursement Rules Related to Inpatient Hospital Reimbursement, Outpatient Hospital Reimbursement, Ambulatory Surgical Centers Reimbursement and Renal Dialysis Reimbursement.
OVERVIEW
The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on July 19, 2023, from 10:00 a.m. to noon to receive public comments on proposed rule amendments to 1 Texas Administrative Code §§355.8052, 355.8061, 355.8121, 355.8610, and 355.8660. This hearing will be conducted online only. There is no physical location for this hearing.
Public Notice to address the proposed change to increase attendant base wages in the Medically Dependent Children Program (MDCP) program.
OVERVIEW
The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Medically Dependent Children Program (MDCP) program. HHSC administers the MDCP Program under the authority of Section 1915(c) of the Social Security Act. The proposed effective date for this amendment is September 1, 2023.
The amendment request proposes to make the changes described below based on the 2024-2025 General Appropriations Act, House Bill 1, 88th Legislature, Regular Session, 2023, (Article II, HHSC Rider 30(a)) which appropriated funding to increase attendant base wages in the MDCP program.
Public Notice: Texas State Plan for Medical Assistance Amendment to update the rates and payment methodology for Nursing Facilities.
OVERVIEW
The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act.
The purpose of the amendment is to update the rate methodology and payment rates for Nursing Facilities (NF). HHSC is making these changes in accordance with the 2024-25 General Appropriations Act, House Bill 1, 88th Texas Legislature, Regular Session, 2023 (Article II, HHSC, Rider 24), which requires HHSC to implement NF reimbursement rate changes to increase the wages and benefits of direct care staff and ensure that at least 90 percent of appropriated funds are expended for the benefit of direct care staff wages and benefits. The proposed amendment also revises the initial cost report database to calculate the direct care cost component to be the most recent Texas Medicaid NF Cost Report database. The proposed amendment is effective September 1, 2023.
The proposed amendment is estimated to result in an annual aggregate fee-for-service expenditure of $6,437,477 for federal fiscal year 2023, consisting of $4,015,055 in federal funds and $2,422,423 in state general revenue. For federal fiscal year 2024, the estimated annual aggregate fee-for-service expenditure is $87,657,130, consisting of $52,725,764 in federal funds and $34,931,366 in state general revenue. For federal fiscal year 2025, the estimated annual aggregate fee-for-service expenditure is $91,350,441, consisting of $54,947,290 in federal funds and $36,403,151 in state general revenue.
Public Notice – Texas State Plan for Medical Assistance Amendment, to modify the definition of rural hospitals in order to reflect data from the 2020 U.S. Census.
OVERVIEW
The Texas Health and Human Services Commission (HHSC) announces its intent to submit amendments to the Texas State Plan for Medical Assistance under Title XIX of the Social Security Act. The proposed amendments will be effective September 1, 2023.The purpose of the proposed amendments is to modify the definition of rural hospitals to reflect the population updates in the 2020 U.S. Census, and to increase the minimum payment for the labor and delivery add-on rural hospitals as well as implement increases to outpatient reimbursement for rural hospitals. The modifications are to comply with House Bill 1 (H.B. 1) Rider 8 and Rider 16, 88th Legislature, Regular Session 2023.
The proposed amendment to Inpatient Hospital Reimbursement is estimated to result in an increased annual aggregate expenditure of $558,804 for federal fiscal year (FFY) 2023, consisting of $348,526 in federal funds and $210,278 in state general revenue. For FFY 2024, the estimated annual aggregate expenditure is $6,705,643 consisting of $2,646,717 in federal funds and $4,058,926 in state general revenue. For FFY 2025, the estimated annual aggregate expenditure is $6,705,643 consisting of $4,033,444 in federal funds and $2,672,199 in state general revenue.
The proposed amendment to Outpatient Hospital Reimbursement is estimated to result in an increased annual aggregate expenditure of $75,044 for federal fiscal year (FFY) 2023, consisting of $46,805 in federal funds and $28,239 in state general revenue. For FFY 2024, the estimated annual aggregate expenditure is $900,532 consisting of $545,092 in federal funds and $355,440 in state general revenue. For FFY 2025, the estimated annual aggregate expenditure is $990,585 consisting of $595,837 in federal funds and $394,748 in state general revenue.
Public Notice – The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Home and Community-based Services (HCS) program.
OVERVIEW
The Texas Health and Human Services Commission (HHSC) is submitting a request to the Centers for Medicare & Medicaid Services (CMS) to amend the waiver application for the Home and Community-based Services (HCS) program. HHSC administers the HCS Program under the authority of Section 1915(c) of the Social Security Act. The proposed effective date for this amendment is September 1, 2023.
The amendment request proposes to make the changes described below based on the 2024-2025 General Appropriations Act, House Bill 1, 88th Legislature, Regular Session, 2023, (Article II, HHSC Rider 30(a)) which appropriated funding to increase attendant base wages in the HCS program.
Appendix J
Texas Board of Chiropractic Examiners
Proposed Rules Re:
CHAPTER 80. COMPLAINTS
22 TAC §80.5
OVERVIEW
The Texas Board of Chiropractic Examiners (Board) proposes repealing 22 TAC §80.5 (Expert Review Process). The Board will propose a new §80.5 in a separate rulemaking. This rulemaking action will clarify language relating to the Board’s authority to conduct standard of care reviews during complaint investigations.
The Board’s Executive Director, Patrick Fortner, has determined that for the first five-year period the proposed repeal is in effect there will be no fiscal implications for state or local government. There will be no adverse effect on small businesses or rural communities, micro-businesses, or local or state employment. There will be no additional economic costs to persons required to comply with the repeal as proposed. An Economic Impact Statement and Regulatory Flexibility Analysis is not required because the proposed repeal will not have an adverse economic effect on small businesses or rural communities as defined in Texas Government Code §2006.001(1-a) and (2).
CHAPTER 80. COMPLAINTS
22 TAC §80.5
OVERVIEW
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §80.5 (Peer Review Process). The current §80.5 is being repealed in a separate rulemaking action.
Texas Occupations Code §201.210 requires the Board to set up a system where the Board may draw on outside chiropractic expertise (an “expert” reviewer of patient records) to help in investigations involving standard of care allegations. The Board adopted such a system through §80.5.
However, the use of the term “expert” in both the statute and the Board’s current rule has caused confusion for some complainants as to the exact role and authority of the reviewer. Some complainants have thought that the reviewer’s job is to assign legal liability for any injury the complainant may have suffered as the result of a licensee’s failure to meet the profession’s standard of care; in effect, some complainants believe that the reviewer is the same as an expert witness in a trial court who is called upon to render an opinion as to causation (and thus assign legal liability). That is not the case with the Board’s reviewers.
Unlike an expert witness, a Board reviewer does not examine any patient; the reviewer only performs a review of records. Also, a Board reviewer is not statutorily authorized to render an opinion as to causation, only whether the standard of care for chiropractic was met; those are different standards. An opinion on causation is within the purview of the courts, not the Board.
The proposed new §80.5 keeps the Board’s current system of outside standard of care review, but clarifies to both reviewers hired by the Board and complainants that the reviewer is not authorized to make a legal opinion as to any violation of statutes or rules under the Board’s jurisdiction, nor authorized to make a legal opinion as to the liability for any injury possibly sustained by the complainant. To that end, the rule will be retitled as “Peer Review Process” to eliminate the perception that a Board reviewer is the same as an expert witness.
New 22 TAC §80.8, delineating the policy for processing complaints initiated by Board members and staff.
CHAPTER 80. COMPLAINTS
22 TAC §80.8
OVERVIEW
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §80.8 (Board Member and Staff Initiated Complaints). This proposed action puts into rule the Board’s current policy for processing complaints initiated by Board members and staff.
As practicing chiropractors, Board members interact with other licensees. On occasion, a Board (or staff) member may become aware of facts that indicate that another licensee may be in violation of the statutes and rules under the Board’s jurisdiction and thus need to file a formal complaint. The proposed new rule formalizes the Board’s procedures for processing those complaints.
The intent behind the new rule is transparency: the licensee who is the subject of a complaint under this rule will know the identity of the Board or staff member making the complaint; know that the allegations were considered independently by the Board’s executive director before the complaint is forwarded to the Board’s enforcement director; and know that any Board member filing a complaint will be prohibited from voting on or considering the results of any investigation or subsequent administrative action taken by the Board on the complaint.
CHAPTER 82. INTERNAL BOARD PROCEDURES
22 TAC §82.7
OVERVIEW
The Texas Board of Chiropractic Examiners (Board) proposes new 22 TAC §82.7 (Employee Equity Salary Adjustments). The General Appropriations Act (GAA) authorizes an agency executive director to make employee equity salary adjustments only if the agency has adopted a rule permitting that action. This proposed rule, which is compliant with the terms of the GAA (Article IX, §3.07, 87th Legislature – Regular Session, 2021 (or successor provisions), permits the agency executive director to make such adjustments if necessary.
State Board of Dental Examiners
Proposed Rules Re:
Amending 22 TAC §102.1, to reflect the application fees for Registered Dental Assistants, Course Providers, and Continuing Education Providers.
CHAPTER 102. FEES
22 TAC §102.1
OVERVIEW
The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §102.1, concerning fees. The proposed amendment reflects the fees required to submit the following applications to the Board: Registered Dental Assistant (RDA) Course Provider Application, and Continuing Education (CE) Provider Application.
Amending 22 TAC §110.18, to grant the Board discretion to pursue revocation of a dental license for certain sedation/anesthesia providers.
CHAPTER 110. SEDATION AND ANESTHESIA
22 TAC §110.18
The State Board of Dental Examiners (Board) proposes this amendment to 22 TAC §110.18, concerning inspection of sedation/anesthesia providers. The proposed amendment gives the Board discretion on whether to pursue revocation of a dental license if a permit holder who is in an inactive status is found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia while in inactive status. The proposed amendment also gives the Board discretion on whether to pursue revocation of a dental license if a permit holder who is an exempt location status is found to have administered or delegated the administration of level 2, 3, or 4 sedation/anesthesia in a non-exempt location.
Texas Department of Insurance
Adopted Rules Re:
CHAPTER 26. EMPLOYER-RELATED HEALTH BENEFIT PLAN REGULATIONS
SUBCHAPTER A. DEFINITIONS, SEVERABILITY, AND SMALL EMPLOYER HEALTH REGULATIONS
28 TAC §26.5
OVERVIEW
The commissioner of insurance adopts amendments to 28 TAC §26.5 and §26.301, concerning employer-related health benefit plan regulations. The amendments clarify that the requirements and mandates of Senate Bill 1264, 86th Legislature, 2019, including Insurance Code Chapter 1467, apply to certificates of insurance (COIs) issued to certain Texas residents. The amendments are adopted without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8479). The rules will not be republished. A notice of hearing was published in the January 27, 2023, issue of the Texas Register (48 TexReg 435), and the hearing was held on February 10, 2023.
BACKGROUND AND JUSTIFICATION
The amendments to §26.5(g) and §26.301(j) clarify that SB 1264, including Insurance Code Chapter 1467, applies to carriers that:
- are licensed and doing business in Texas,
- issue group accident or health plans to an out-of-state employer, and
- deliver COIs to Texas-resident employees of the out-of-state employer.
The express listing of SB 1264 in §26.5(g) and §26.301(j) does not limit the applicability of other laws and mandates to carriers licensed in this state that issue COIs covering Texas residents.
The Texas Department of Insurance (TDI) has historically applied Texas insurance laws and mandates to COIs issued to Texas-resident employees under a group accident or health plan that is issued to the employee’s out-of-state employer by an insurer licensed and doing business in Texas. See the adoption order for §26.5 and §26.301 at 42 TexReg 2545 (stating in response to a comment that the language adopted in §26.5(g) and §26.301(j) “is not a change and reflects how TDI has consistently applied the statutory and regulatory requirements”). TDI has, however, received questions from stakeholders about whether the requirements of SB 1264 apply to these COIs.
SB 1264 amended the Insurance Code to establish consumer protections against balance billing by certain out‑of‑network providers. The bill (1) prohibits those providers from billing health benefit plan enrollees for certain covered health care services or supplies in an amount greater than an applicable copayment, coinsurance, or deductible under the plan; (2) provides for the right of those providers to receive payment for those services or supplies at the usual and customary rate or at an agreed rate; and (3) establishes requirements for the inclusion of a balance billing prohibition notice in an explanation of benefits. See, e.g., Insurance Code §§1271.008, 1271.157, 1301.010, and 1301.164. The bill also establishes procedures for out‑of‑network claim dispute resolution through arbitration or mediation, depending on the type of provider at issue. See id.; Insurance Code Chapter 1467.
The amendments also implement Insurance Code Article 21.42, which provides, “Any contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and entered into under and by virtue of the laws of this State relating to insurance, and governed thereby, notwithstanding such policy or contract of insurance may provide that the contract was executed and the premiums and policy (in case it becomes a demand) should be payable without this State, or at the home office of the company or corporation issuing the same.” See Howell v. Am. Live Stock Ins. Co., 483 F.2d 1354, 1360 n.4 (5th Cir. 1973) (stating in the context of group policies, “the fact that the insurer does any business in Texas is sufficient to require that Texas law apply to any contract between it and a Texas resident, regardless of the intention or expectation of the parties”); General Am. Life Ins. Co. v. Rodriguez, 641 S.W.2d 264, 266-67 (Tex. App.–Houston {14th Dist.} 1982, no writ) (holding Insurance Code Article 21.42 applies where group life policy issued to out-of-state employer covered employee residing in Texas).
In addition, an amendment to §26.5 revises a reference to a code chapter for consistency with agency style.
Amending 28 TAC §26.301, to clarify the requirements of Senate Bill 1264.
CHAPTER 26. EMPLOYER-RELATED HEALTH BENEFIT PLAN REGULATIONS
SUBCHAPTER C. LARGE EMPLOYER HEALTH INSURANCE REGULATIONS
28 TAC §26.301
OVERVIEW
The commissioner of insurance adopts amendments to 28 TAC §26.5 and §26.301, concerning employer-related health benefit plan regulations. The amendments clarify that the requirements and mandates of Senate Bill 1264, 86th Legislature, 2019, including Insurance Code Chapter 1467, apply to certificates of insurance (COIs) issued to certain Texas residents. The amendments are adopted without changes to the proposed text published in the December 23, 2022, issue of the Texas Register (47 TexReg 8479). The rules will not be republished. A notice of hearing was published in the January 27, 2023, issue of the Texas Register (48 TexReg 435), and the hearing was held on February 10, 2023.
BACKGROUND AND JUSTIFICATION
The amendments to §26.5(g) and §26.301(j) clarify that SB 1264, including Insurance Code Chapter 1467, applies to carriers that:
- are licensed and doing business in Texas,
- issue group accident or health plans to an out-of-state employer, and
- deliver COIs to Texas-resident employees of the out-of-state employer.
The express listing of SB 1264 in §26.5(g) and §26.301(j) does not limit the applicability of other laws and mandates to carriers licensed in this state that issue COIs covering Texas residents.
The Texas Department of Insurance (TDI) has historically applied Texas insurance laws and mandates to COIs issued to Texas-resident employees under a group accident or health plan that is issued to the employee’s out-of-state employer by an insurer licensed and doing business in Texas. See the adoption order for §26.5 and §26.301 at 42 TexReg 2545 (stating in response to a comment that the language adopted in §26.5(g) and §26.301(j) “is not a change and reflects how TDI has consistently applied the statutory and regulatory requirements”). TDI has, however, received questions from stakeholders about whether the requirements of SB 1264 apply to these COIs.
SB 1264 amended the Insurance Code to establish consumer protections against balance billing by certain out‑of‑network providers. The bill (1) prohibits those providers from billing health benefit plan enrollees for certain covered health care services or supplies in an amount greater than an applicable copayment, coinsurance, or deductible under the plan; (2) provides for the right of those providers to receive payment for those services or supplies at the usual and customary rate or at an agreed rate; and (3) establishes requirements for the inclusion of a balance billing prohibition notice in an explanation of benefits. See, e.g., Insurance Code §§1271.008, 1271.157, 1301.010, and 1301.164. The bill also establishes procedures for out‑of‑network claim dispute resolution through arbitration or mediation, depending on the type of provider at issue. See id.; Insurance Code Chapter 1467.
The amendments also implement Insurance Code Article 21.42, which provides, “Any contract of insurance payable to any citizen or inhabitant of this State by any insurance company or corporation doing business within this State shall be held to be a contract made and entered into under and by virtue of the laws of this State relating to insurance, and governed thereby, notwithstanding such policy or contract of insurance may provide that the contract was executed and the premiums and policy (in case it becomes a demand) should be payable without this State, or at the home office of the company or corporation issuing the same.” See Howell v. Am. Live Stock Ins. Co., 483 F.2d 1354, 1360 n.4 (5th Cir. 1973) (stating in the context of group policies, “the fact that the insurer does any business in Texas is sufficient to require that Texas law apply to any contract between it and a Texas resident, regardless of the intention or expectation of the parties”); General Am. Life Ins. Co. v. Rodriguez, 641 S.W.2d 264, 266-67 (Tex. App.–Houston {14th Dist.} 1982, no writ) (holding Insurance Code Article 21.42 applies where group life policy issued to out-of-state employer covered employee residing in Texas).
In addition, an amendment to §26.5 revises a reference to a code chapter for consistency with agency style.
Department of State Health Services
In Addition Re:
Order Placing Brorphine and Eutylone in Schedule I
For more information, please visit this week’s edition of the Texas Register at 48 Tex Reg 3730.