Texas Register October 21, 2022 Volume: 47 Number: 42

Texas Register Table of Contents

Texas Health and Human Services

Proposed Rules Re:

Amending 1 TAC §§354.1430, 354.1432, 354.1434 and new §§354.1435 and 354.1436, addressing how patients are to receive telemedicine medical services.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER A. PURCHASED HEALTH SERVICES
1 TAC §§354.1430, 354.1432, 354.1434 – 354.1436

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.

BACKGROUND AND JUSTIFICATION

House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, amends Chapter 531 of the Texas Government Code by adding new section 531.02161 and requires HHSC to develop and implement policies and procedures for the provision of health care services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law as described below.

The proposal is necessary to comply with Texas Government Code, §531.02161 added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, to ensure Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program, regardless of whether receiving benefits through a managed care delivery model or another delivery model, have the option to receive services via telemedicine and telehealth, including certain behavioral health services using an audio-only platform.

The proposal also implements the amendments made in Texas Government Code, §531.001 by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017; the changes made in Texas Government Code, §531.001 and §531.0217(d) by S.B. 670, 86th Legislature, Regular Session, 2019; and implements Texas Government Code, §531.02164 (c-1) added by H.B. 1063, 86th Legislature, Regular Session, 2019.

The proposed amendment to §354.1430, concerning Definitions, adds a definition for “platform” and amends the definitions for “telehealth service” and “telemedicine medical service” to reference the meanings of these terms as defined in the Texas Occupations Code §111.001.

The proposed amendment to §354.1434 Home Telemonitoring Benefits and Limitations provides that home telemonitoring services are made available to Texas Medicaid pediatric clients who are diagnosed with end-stage solid organ disease, have received an organ transplant, or require mechanical ventilation. HHSC has already implemented this provision in its Texas Medicaid policies but will codify this provision in rule to align with current medical policy and state law.

Additionally, S.B. 922, 85th Legislature, Regular Session, 2017, amended Texas Government Code Chapter 531, by adding §531.02171. Section 531.02171(a) provides a definition for “health professional” as an individual who is licensed, registered, certified, or otherwise authorized in Texas to practice as a social worker, occupational therapist, or speech-language pathologist; a licensed professional counselor; a licensed marriage and family therapist; or a licensed specialist in school psychology. Section 531.02171(b) requires HHSC to ensure that Medicaid reimbursement is provided to a school district or open-enrollment charter school for telehealth services provided through the school district or open-enrollment charter school by a health professional, even if the health professional is not the patient’s primary care provider, if the school district or charter school is an authorized health care provider under Medicaid and the parent or legal guardian of the patient provides consent before the service is provided.

SECTION-BY-SECTION SUMMARY

Subchapter A, Division 33, Advanced Telecommunications Services

  • The proposed amendment to §354.1430 adds definitions for “audio-only,” “behavioral health services,” “declaration of state of disaster,” “in-person,” “non-behavioral health services,” and “platform.” The proposed amendment revises the definitions for “telehealth service” and “telemedicine medical service.” The proposed amendment deletes the definitions for “distant site,” “established health site,” “established medical site,” “in-person evaluation,” “patient site,” “patient site presenter,” “readily available,” “state mental health facility,” and “state supported living center.”
  • The proposed amendment to §354.1432 prohibits a client from being required to receive a telemedicine medical service or telehealth service, rather than an in-person service, except in the event of an active declaration of state of disaster and establishes criteria for determining if a healthcare service may be delivered as a telemedicine or telehealth service, including via an audio-only platform. The proposed amendment also establishes the requirements for providers to be reimbursed for telemedicine medical services, telemedicine medical services provided in a primary or secondary school-based setting, and telehealth services.
  • The proposed amendment to §354.1434 adds the medical conditions that qualify a client 20 years of age and younger to receive home telemonitoring services.
  • Proposed new §354.1435 addresses the provision of behavioral health services using an audio-only platform. The proposed rule also requires the provider to obtain informed consent before providing a behavioral health service through an audio-only platform.
  • Proposed new §354.1436 addresses the provision of non-behavioral health services using an audio-only platform.

Amending 1 TAC §§354.2603, 354.2607, 354.2609, allowing telemedicine medical services to be used for mental health services and recovery, treatment planning, treatment plan review, and discharge summaries.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §§354.2603, 354.2607, 354.2609

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.

BACKGROUND AND JUSTIFICATION

House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, amends Chapter 531 of the Texas Government Code by adding new section 531.02161 and requires HHSC to develop and implement policies and procedures for the provision of health care services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law as described below.

The proposal is necessary to comply with Texas Government Code, §531.02161 added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, to ensure Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program, regardless of whether receiving benefits through a managed care delivery model or another delivery model, have the option to receive services via telemedicine and telehealth, including certain behavioral health services using an audio-only platform.

The proposal also implements the amendments made in Texas Government Code, §531.001 by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017; the changes made in Texas Government Code, §531.001 and §531.0217(d) by S.B. 670, 86th Legislature, Regular Session, 2019; and implements Texas Government Code, §531.02164 (c-1) added by H.B. 1063, 86th Legislature, Regular Session, 2019.

The proposed amendment to §354.1430, concerning Definitions, adds a definition for “platform” and amends the definitions for “telehealth service” and “telemedicine medical service” to reference the meanings of these terms as defined in the Texas Occupations Code §111.001.

The proposed amendment to §354.1434 Home Telemonitoring Benefits and Limitations provides that home telemonitoring services are made available to Texas Medicaid pediatric clients who are diagnosed with end-stage solid organ disease, have received an organ transplant, or require mechanical ventilation. HHSC has already implemented this provision in its Texas Medicaid policies but will codify this provision in rule to align with current medical policy and state law.

Additionally, S.B. 922, 85th Legislature, Regular Session, 2017, amended Texas Government Code Chapter 531, by adding §531.02171. Section 531.02171(a) provides a definition for “health professional” as an individual who is licensed, registered, certified, or otherwise authorized in Texas to practice as a social worker, occupational therapist, or speech-language pathologist; a licensed professional counselor; a licensed marriage and family therapist; or a licensed specialist in school psychology. Section 531.02171(b) requires HHSC to ensure that Medicaid reimbursement is provided to a school district or open-enrollment charter school for telehealth services provided through the school district or open-enrollment charter school by a health professional, even if the health professional is not the patient’s primary care provider, if the school district or charter school is an authorized health care provider under Medicaid and the parent or legal guardian of the patient provides consent before the service is provided.

SECTION-BY-SECTION SUMMARY

Subchapter M, Division 1, General Provisions

  • The proposed amendment to §354.2603 adds definitions for “audio-only,” “platform,” “telehealth service,” and “telemedicine medical service.” The proposed amendment deletes the definition for “in-vivo.”
  • The proposed amendment to §354.2607 allows the assessment and service authorization for mental health targeted case management and mental health rehabilitation services to be performed as a telemedicine medical service or a telehealth service, including via an audio-only platform.
  • The proposed amendment to §354.2609 allows recovery, treatment planning, treatment plan review, and discharge summaries to be performed as a telemedicine medical service or a telehealth service including via an audio-only platform.

Amending 1 TAC §354.2655, §354.2657, allowing mental health targeted case management to be delivered via telemedicine and describing the requirements for documentation of assessment.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §354.2655, §354.2657

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.

BACKGROUND AND JUSTIFICATION

House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, amends Chapter 531 of the Texas Government Code by adding new section 531.02161 and requires HHSC to develop and implement policies and procedures for the provision of health care services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law as described below.

The proposal is necessary to comply with Texas Government Code, §531.02161 added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, to ensure Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program, regardless of whether receiving benefits through a managed care delivery model or another delivery model, have the option to receive services via telemedicine and telehealth, including certain behavioral health services using an audio-only platform.

The proposal also implements the amendments made in Texas Government Code, §531.001 by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017; the changes made in Texas Government Code, §531.001 and §531.0217(d) by S.B. 670, 86th Legislature, Regular Session, 2019; and implements Texas Government Code, §531.02164 (c-1) added by H.B. 1063, 86th Legislature, Regular Session, 2019.

The proposed amendment to §354.1430, concerning Definitions, adds a definition for “platform” and amends the definitions for “telehealth service” and “telemedicine medical service” to reference the meanings of these terms as defined in the Texas Occupations Code §111.001.

The proposed amendment to §354.1434 Home Telemonitoring Benefits and Limitations provides that home telemonitoring services are made available to Texas Medicaid pediatric clients who are diagnosed with end-stage solid organ disease, have received an organ transplant, or require mechanical ventilation. HHSC has already implemented this provision in its Texas Medicaid policies but will codify this provision in rule to align with current medical policy and state law.

Additionally, S.B. 922, 85th Legislature, Regular Session, 2017, amended Texas Government Code Chapter 531, by adding §531.02171. Section 531.02171(a) provides a definition for “health professional” as an individual who is licensed, registered, certified, or otherwise authorized in Texas to practice as a social worker, occupational therapist, or speech-language pathologist; a licensed professional counselor; a licensed marriage and family therapist; or a licensed specialist in school psychology. Section 531.02171(b) requires HHSC to ensure that Medicaid reimbursement is provided to a school district or open-enrollment charter school for telehealth services provided through the school district or open-enrollment charter school by a health professional, even if the health professional is not the patient’s primary care provider, if the school district or charter school is an authorized health care provider under Medicaid and the parent or legal guardian of the patient provides consent before the service is provided.

SECTION-BY-SECTION SUMMARY

Subchapter M, Division 2, Mental Health Targeted Case Management

  • The proposed amendment to §354.2655 allows mental health targeted case management to be delivered as a telemedicine medical service or a telehealth service, including via an audio-only platform.
  • The proposed amendment to §354.2657 requires the documentation of assessments to include the mode of delivery and requires the documentation for mental health targeted case management services to include the mode of delivery used to provide the service and if provided in person, the location where the service was provided.

Amending 1 TAC §§354.2707, 354.2709, 354.2711, 354.2713 to allow for crisis intervention services, medication training, psychosocial rehabilitative services, and skills training and development services to be provided via telemedicine.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER M. MENTAL HEALTH TARGETED CASE MANAGEMENT AND MENTAL HEALTH REHABILITATION
1 TAC §§354.2707, 354.2709, 354.2711, 354.2713

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.

BACKGROUND AND JUSTIFICATION

House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, amends Chapter 531 of the Texas Government Code by adding new section 531.02161 and requires HHSC to develop and implement policies and procedures for the provision of health care services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law as described below.

The proposal is necessary to comply with Texas Government Code, §531.02161 added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021, to ensure Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program, regardless of whether receiving benefits through a managed care delivery model or another delivery model, have the option to receive services via telemedicine and telehealth, including certain behavioral health services using an audio-only platform.

The proposal also implements the amendments made in Texas Government Code, §531.001 by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017; the changes made in Texas Government Code, §531.001 and §531.0217(d) by S.B. 670, 86th Legislature, Regular Session, 2019; and implements Texas Government Code, §531.02164 (c-1) added by H.B. 1063, 86th Legislature, Regular Session, 2019.

The proposed amendment to §354.1430, concerning Definitions, adds a definition for “platform” and amends the definitions for “telehealth service” and “telemedicine medical service” to reference the meanings of these terms as defined in the Texas Occupations Code §111.001.

The proposed amendment to §354.1434 Home Telemonitoring Benefits and Limitations provides that home telemonitoring services are made available to Texas Medicaid pediatric clients who are diagnosed with end-stage solid organ disease, have received an organ transplant, or require mechanical ventilation. HHSC has already implemented this provision in its Texas Medicaid policies but will codify this provision in rule to align with current medical policy and state law.

Additionally, S.B. 922, 85th Legislature, Regular Session, 2017, amended Texas Government Code Chapter 531, by adding §531.02171. Section 531.02171(a) provides a definition for “health professional” as an individual who is licensed, registered, certified, or otherwise authorized in Texas to practice as a social worker, occupational therapist, or speech-language pathologist; a licensed professional counselor; a licensed marriage and family therapist; or a licensed specialist in school psychology. Section 531.02171(b) requires HHSC to ensure that Medicaid reimbursement is provided to a school district or open-enrollment charter school for telehealth services provided through the school district or open-enrollment charter school by a health professional, even if the health professional is not the patient’s primary care provider, if the school district or charter school is an authorized health care provider under Medicaid and the parent or legal guardian of the patient provides consent before the service is provided.

SECTION-BY-SECTION SUMMARY

Subchapter M, Division 3, Mental Health Rehabilitation

  • The proposed amendment to §354.2707 allows crisis intervention services for mental health targeted case management and mental health rehabilitation to be performed as a telemedicine medical service or a telehealth service, including via an audio-only platform.
  • The proposed amendment to §354.2709 allows medication training and support services for mental health targeted case management and mental health rehabilitation to be performed as a telemedicine medical service or a telehealth service, including via an audio-only platform.
  • The proposed amendment to §354.2711 allows psychosocial rehabilitative services for mental health targeted case management and mental health rehabilitation to be performed as a telemedicine medical service or a telehealth service, including via an audio-only platform.
  • The proposed amendment to §354.2713 allows skills training and development services for mental health targeted case management and mental health rehabilitation to be performed as a telemedicine medical service or a telehealth service, including via an audio-only platform.

New 1 TAC §354.5001, §354.5003, describing the purpose of the new Subchapter and providing new definitions.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER P. AUTISM SERVICES
1 TAC §354.5001, §354.5003

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, new Subchapter P, Autism Services, comprised of §§354.5001, concerning Purpose and Applicability; 354.5003, concerning Definitions; 354.5011, concerning Providers of Applied Behavior Analysis (ABA) Services; 354.5021, concerning Service Description, Requirements, and Limitations for Providing Applied Behavior Analysis (ABA) Services; and 354.5023, concerning Additional Medicaid Reimbursement Limitations and Exclusions Specific to Applied Behavior Analysis (ABA) Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement the legislative direction in Senate Bill 1, 87th Texas Legislature, Regular Session, 2021 (Article II, HHSC, Rider 28). Rider 28 appropriated funding for Applied Behavior Analysis (ABA) services for autism and directed HHSC to implement the services as soon as practicable, but not later than February 1, 2022. A proposed Medicaid state plan amendment (SPA) was submitted to the Centers for Medicare & Medicaid Services (CMS) on September 3, 2021. The SPA amended the state plan to clarify that, to the extent required by Early and Periodic Screening, Diagnosis, and Treatment (EPSDT), a licensed behavior analyst (LBA) operating within the LBA’s state scope of practice and licensure requirements may provide ABA evaluation and treatment services to eligible children under 21 years of age who have a diagnosis of autism spectrum disorder (ASD). On January 27, 2022, CMS approved the SPA with an effective date of February 1, 2022.

The new Subchapter P in Title 1, Part 15, Chapter 354 outlines the requirements for LBAs and other providers of Medicaid ABA services, with a focus on how services should be provided. The proposed rules are consistent with the Medicaid Autism Services section (Austin Section) in the Children’s Services Handbook (Children’s Handbook) in the Texas Medicaid Provider Procedures Manual (TMPPM) that went into effect on February 1, 2022.

SECTION-BY-SECTION SUMMARY

New Division 1, General Provisions

  • Proposed new §354.5001, Purpose and Applicability, describes the purpose of the new Subchapter as relating to Medicaid covered ABA services to treat ASD under the Texas Health Steps-Comprehensive Care Program (THSteps-CCP) and identifies authorized service providers. It establishes requirements for these services including limiting covered services to those which are Medicaid reimbursable and medically necessary and clinically appropriate and effective. The rule also indicates that other applicable laws, rules, policies, and initiatives apply.
  • Proposed new §354.5003, Definitions, defines relevant words and terms used in the Subchapter.

New 1 TAC §354.5011, describing authorized providers of Applied Behavior Analysis (ABA) Services and the requirements for licensing, certification and registration.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER P. AUTISM SERVICES
1 TAC §354.5011

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, new Subchapter P, Autism Services, comprised of §§354.5001, concerning Purpose and Applicability; 354.5003, concerning Definitions; 354.5011, concerning Providers of Applied Behavior Analysis (ABA) Services; 354.5021, concerning Service Description, Requirements, and Limitations for Providing Applied Behavior Analysis (ABA) Services; and 354.5023, concerning Additional Medicaid Reimbursement Limitations and Exclusions Specific to Applied Behavior Analysis (ABA) Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement the legislative direction in Senate Bill 1, 87th Texas Legislature, Regular Session, 2021 (Article II, HHSC, Rider 28). Rider 28 appropriated funding for Applied Behavior Analysis (ABA) services for autism and directed HHSC to implement the services as soon as practicable, but not later than February 1, 2022. A proposed Medicaid state plan amendment (SPA) was submitted to the Centers for Medicare & Medicaid Services (CMS) on September 3, 2021. The SPA amended the state plan to clarify that, to the extent required by Early and Periodic Screening, Diagnosis, and Treatment (EPSDT), a licensed behavior analyst (LBA) operating within the LBA’s state scope of practice and licensure requirements may provide ABA evaluation and treatment services to eligible children under 21 years of age who have a diagnosis of autism spectrum disorder (ASD). On January 27, 2022, CMS approved the SPA with an effective date of February 1, 2022.

The new Subchapter P in Title 1, Part 15, Chapter 354 outlines the requirements for LBAs and other providers of Medicaid ABA services, with a focus on how services should be provided. The proposed rules are consistent with the Medicaid Autism Services section (Austin Section) in the Children’s Services Handbook (Children’s Handbook) in the Texas Medicaid Provider Procedures Manual (TMPPM) that went into effect on February 1, 2022.

SECTION-BY-SECTION SUMMARY

New Division 2, Service Providers

Proposed new §354.5011, Providers of Applied Behavior Analysis (ABA) Services, describes authorized providers of ABA services for ASD, including what licensing, certification or registration is required; the minimum requirements for each provider type; what services each provider is authorized to provide; and a description of certain requirements for providing Medicaid reimbursable ABA services.


New 1 TAC §354.5021, §354.5023, concerning service descriptions, requirements, and limitations for providing Applied Behavior Analysis (ABA) Services and Medicaid reimbursement limitations and exclusions for ABA Services.

CHAPTER 354. MEDICAID HEALTH SERVICES
SUBCHAPTER P. AUTISM SERVICES
1 TAC §354.5021, §354.5023

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, new Subchapter P, Autism Services, comprised of §§354.5001, concerning Purpose and Applicability; 354.5003, concerning Definitions; 354.5011, concerning Providers of Applied Behavior Analysis (ABA) Services; 354.5021, concerning Service Description, Requirements, and Limitations for Providing Applied Behavior Analysis (ABA) Services; and 354.5023, concerning Additional Medicaid Reimbursement Limitations and Exclusions Specific to Applied Behavior Analysis (ABA) Services.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to implement the legislative direction in Senate Bill 1, 87th Texas Legislature, Regular Session, 2021 (Article II, HHSC, Rider 28). Rider 28 appropriated funding for Applied Behavior Analysis (ABA) services for autism and directed HHSC to implement the services as soon as practicable, but not later than February 1, 2022. A proposed Medicaid state plan amendment (SPA) was submitted to the Centers for Medicare & Medicaid Services (CMS) on September 3, 2021. The SPA amended the state plan to clarify that, to the extent required by Early and Periodic Screening, Diagnosis, and Treatment (EPSDT), a licensed behavior analyst (LBA) operating within the LBA’s state scope of practice and licensure requirements may provide ABA evaluation and treatment services to eligible children under 21 years of age who have a diagnosis of autism spectrum disorder (ASD). On January 27, 2022, CMS approved the SPA with an effective date of February 1, 2022.

The new Subchapter P in Title 1, Part 15, Chapter 354 outlines the requirements for LBAs and other providers of Medicaid ABA services, with a focus on how services should be provided. The proposed rules are consistent with the Medicaid Autism Services section (Austin Section) in the Children’s Services Handbook (Children’s Handbook) in the Texas Medicaid Provider Procedures Manual (TMPPM) that went into effect on February 1, 2022.

SECTION-BY-SECTION SUMMARY

New Division 3, Parameters for Service Provision

Proposed new §354.5021, Service Description, Requirements, and Limitations for Providing Applied Behavior Analysis (ABA) Services, describes certain general requirements, parameters, bases, and limitations for an ABA provider providing Medicaid reimbursable ABA services to eligible children with ASD.

Proposed new §354.5023, Additional Medicaid Reimbursement Limitations and Exclusions Specific to Applied Behavior Analysis (ABA) Services, describes additional situations in which Medicaid will not reimburse for ABA services, including activities of Medicaid enrolled individual or performing provider LBAs and ABA groups which are excluded.


Repealing 1 TAC §§371.212, 371.214, 371.216, which deleted the rule since it is no longer necessary due to other new provisions.

CHAPTER 371. MEDICAID AND OTHER HEALTH AND HUMAN SERVICES FRAUD AND ABUSE PROGRAM INTEGRITY
SUBCHAPTER C. UTILIZATION REVIEW
1 TAC §§371.212, 371.214, 371.216

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §371.212, concerning Minimum Data Set Assessments; §371.214, concerning Resource Utilization Group Classification System; and §371.216, concerning Waiver of Extrapolation; and proposes new §371.212, concerning Utilization Review of Nursing Facilities; §371.214, concerning HHSC-Approved Online RUG or Other HHSC-Required Training Course; §371.216, concerning Nursing Facility Clinical Records; §371.218, concerning Onsite and Desk Utilization Reviews of Nursing Facilities; §371.220, concerning Exit Conferences; §371.222, concerning Reconsideration of Utilization Review Results; §371.224, concerning Appeals of Reconsideration Results; §371.226, concerning Calculation of Overpayments and Underpayments; §371.228, concerning Recoveries; and §371.230, concerning Waiver of Extrapolation.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update procedures, modernize language, remove unnecessary or duplicative language, and add the option for desk reviews.

The Office of Inspector General (OIG) Nursing Facility Utilization Review (NFUR) unit performs reviews to evaluate the quality of care, medical necessity, appropriateness, and efficiency of healthcare or services to nursing facility residents. Utilization review may include the assessment of the accuracy of coded items by review of clinical records, business records, observation of the recipient, interviews and other relevant sources of information.

The proposed replacement of Sections 371.212, 371.214, and 371.216 with the proposed new sections updates and re-organizes the OIG nursing facility utilization review procedures and provider requirements by: re-organizing the structure of the NFUR rules; providing procedures for desk reviews; deleting redundant language excerpted from the Resident Assessment Instrument (RAI) User’s Manual; adding language that links OIG’s use of extrapolation with existing Texas Administrative Code rule §371.35; and providing for the use of a case mix classification system that succeeds resource utilization groups (RUGs).

SECTION-BY-SECTION SUMMARY

  • The proposed repeal of §371.212 deletes the rule as no longer necessary because some of the content of the rule has been added to proposed new §371.212 and §371.216 and some of the content is outdated or redundant language taken from a prior Centers for Medicare & Medicaid Services RAI User’s Manual.
  • The proposed repeal of §371.214 deletes the rule as no longer necessary because much of the content of the rule has been reorganized and added to the proposed new sections.
  • The proposed repeal of §371.216 deletes the rule as no longer necessary because the content of the rule has been added to proposed new §371.230.

New 1 TAC §§371.212, 371.214, 371.216, 371.218, 371.220, 371.222, 371.224, 371.226, 371.228, 371.230, describing nursing facility provider requirements.

CHAPTER 371. MEDICAID AND OTHER HEALTH AND HUMAN SERVICES FRAUD AND ABUSE PROGRAM INTEGRITY
SUBCHAPTER C. UTILIZATION REVIEW
1 TAC §§371.212, 371.214, 371.216, 371.218, 371.220, 371.222, 371.224, 371.226, 371.228, 371.230

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §371.212, concerning Minimum Data Set Assessments; §371.214, concerning Resource Utilization Group Classification System; and §371.216, concerning Waiver of Extrapolation; and proposes new §371.212, concerning Utilization Review of Nursing Facilities; §371.214, concerning HHSC-Approved Online RUG or Other HHSC-Required Training Course; §371.216, concerning Nursing Facility Clinical Records; §371.218, concerning Onsite and Desk Utilization Reviews of Nursing Facilities; §371.220, concerning Exit Conferences; §371.222, concerning Reconsideration of Utilization Review Results; §371.224, concerning Appeals of Reconsideration Results; §371.226, concerning Calculation of Overpayments and Underpayments; §371.228, concerning Recoveries; and §371.230, concerning Waiver of Extrapolation.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to update procedures, modernize language, remove unnecessary or duplicative language, and add the option for desk reviews.

The Office of Inspector General (OIG) Nursing Facility Utilization Review (NFUR) unit performs reviews to evaluate the quality of care, medical necessity, appropriateness, and efficiency of healthcare or services to nursing facility residents. Utilization review may include the assessment of the accuracy of coded items by review of clinical records, business records, observation of the recipient, interviews and other relevant sources of information.

The proposed replacement of Sections 371.212, 371.214, and 371.216 with the proposed new sections updates and re-organizes the OIG nursing facility utilization review procedures and provider requirements by: re-organizing the structure of the NFUR rules; providing procedures for desk reviews; deleting redundant language excerpted from the Resident Assessment Instrument (RAI) User’s Manual; adding language that links OIG’s use of extrapolation with existing Texas Administrative Code rule §371.35; and providing for the use of a case mix classification system that succeeds resource utilization groups (RUGs).

SECTION-BY-SECTION SUMMARY

  • Proposed new §371.212 specifies nursing facility provider requirements for conducting minimum data set (MDS) assessments and expands the definition of Resource Utilization Group (RUG) to include the contingency of a case mix classification system selected by the state that would replace the current 34-group case mix classification system (i.e. RUG classification system).
  • Proposed new §371.214 describes the training requirements for registered nurse (RN) assessment coordinators.
  • Proposed new §371.216 enumerates the nursing facility provider requirements for maintaining clinical records, including specific content requirements and applicable law and policy.
  • Proposed new §371.218 establishes an option for OIG to conduct a desk utilization review and describes the procedures related to desk reviews and on-site reviews.
  • Proposed new §371.220 describes the process for exit conferences related to onsite and desk utilization reviews, including a description of the documentation OIG provides to the nursing facility provider prior to the telephone exit conference.
  • Proposed new §371.222 specifies the requirements a nursing facility provider must meet to submit a complete request to OIG for reconsideration of the results of an onsite or desk utilization review.
  • Proposed new §371.224 describes the appeal process by which a nursing facility provider may appeal the results of a reconsideration review.
  • Proposed new §371.226 specifies (i) the timing of the reclassification of a RUG and overpayment recovery, following a utilization review and (ii) that OIG may use statistical sampling and extrapolation for nursing facility utilization review cases in accordance with the general OIG extrapolation rule in §371.35.
  • Proposed new §371.228 states that OIG recovers overpayments identified during a utilization review and reimburses providers for underpayments identified during a utilization review.
  • Proposed new §371.230 restates most of the content in existing §371.216 to make clear that OIG may waive extrapolation of an overpayment using the waiver procedure currently outlined in §371.216.

Amending 1 TAC §372.355, which deletes subsections regarding certain Native American payments and Volunteers in Service to America (VISTA) program payments to align with HHSC policy and federal regulation, where such payments are already referenced.

CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS
SUBCHAPTER B. ELIGIBILITY
1 TAC §372.355

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §372.355, concerning Treatment of Resources in SNAP; §372.406, concerning Countable and Excluded Income in SNAP; and §372.410, concerning Allowable Deductions from Countable Income in SNAP.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to comply with the Food and Nutrition Service (FNS) decision to discontinue the Texas Integrated Eligibility Redesign System (TIERS) Rules Waiver. This waiver allowed HHSC to modify certain eligibility criteria for SNAP to align agency SNAP policy and system functionality with other HHSC programs. Because the waiver expired, HHSC must now follow federal regulations regarding excluded resources and income.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §372.355 aligns HHSC policy with federal regulations by deleting §372.355(d)(3) and §372.355(d)(4). As amended, HHSC will follow 7 CFR 273.8(e). Section 372.355(d)(3) and §372.355(d)(4) are proposed to be deleted because the exclusion for certain Native American payments and Volunteers in Service to America (VISTA) program payments when determining countable resources are already referenced in §273.8(e)(11). The paragraphs are renumbered to account for the deletions.


Amending 1 TAC §372.406, §372.410, deleting some subsections to align with HHSC policy and federal regulations regarding the VISTA program and certain SNAP households.

CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS
SUBCHAPTER B. ELIGIBILITY
1 TAC §372.406, §372.410

OVERVIEW

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §372.355, concerning Treatment of Resources in SNAP; §372.406, concerning Countable and Excluded Income in SNAP; and §372.410, concerning Allowable Deductions from Countable Income in SNAP.

BACKGROUND AND JUSTIFICATION

The purpose of the proposal is to comply with the Food and Nutrition Service (FNS) decision to discontinue the Texas Integrated Eligibility Redesign System (TIERS) Rules Waiver. This waiver allowed HHSC to modify certain eligibility criteria for SNAP to align agency SNAP policy and system functionality with other HHSC programs. Because the waiver expired, HHSC must now follow federal regulations regarding excluded resources and income.

SECTION-BY-SECTION SUMMARY

  • The proposed amendment to §372.406 aligns HHSC policy with federal regulations by deleting §372.406(b)(1). As amended, HHSC will follow 7 CFR 273.9(c)(10) when excluding certain VISTA program payments. Section 372.406(b)(1) is redundant and proposed to be deleted because the exclusion for certain VISTA program payments when determining countable income is stated in the federal regulations already referenced in §372.406(a).
  • The proposed amendment to §372.410 aligns HHSC policy with federal regulations by modifying §372.410(1) and deleting §372.410(2). As amended, HHSC will follow 7 CFR 273.9 when allowing deductions for self-employment expenses and uncapped shelter deductions for certain SNAP households. Section 372.410(2) is redundant and proposed to be deleted because the uncapped shelter deduction for certain SNAP households are stated in the federal regulations already referenced in §372.410.

Amending 1 TAC §372.957, to change to 36-month certification period to apply to eligible households containing all elderly or disabled members and removing language about the SNAP Supplemental Security Income waiver.

CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS
SUBCHAPTER D. APPLICATION PROCESS
1 TAC §372.957

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §372.957, concerning Periodic Eligibility Review.

BACKGROUND AND PURPOSE

The purpose of the proposal is to align the section with the implementation of Senate Bill (S.B.) 224, 87th Legislature, Regular Session, 2021, which requires HHSC to provide a 36-month Supplemental Nutrition Assistance Program (SNAP) certification period for eligible households in which all members are elderly (60 years of age or older) or disabled and have no earned income who are certified on or after September 1, 2021.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §372.957 changes the 36-month certification period to apply to eligible households containing all elderly or disabled members, and removes language concerning the SNAP Supplemental Security Income (SNAP-SSI) waiver that expired in 2021. The SNAP-SSI waiver only allowed a 36-month certification period for households receiving SSI.


In Addition Re:

Notice of Public Hearing on Proposed Interim Payment Rates for Small and Large State-Operated Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IIDs) for Fiscal Year 2023

OVERVIEW

Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on October 27, 2022, at 9:00 a.m. to receive public comments on the proposed interim payment rates for small and large state-operated Intermediate Care Facilities for Individuals with an Intellectual Disability (ICF/IIDs) for Fiscal Year 2023.


Public Hearing on State Fiscal Year 2021 Settlement and Proposed Interim Reimbursement Rates for the State Veterans Nursing Homes effective State Fiscal Year 2023

OVERVIEW

Hearing. The Texas Health and Human Services Commission (HHSC) will conduct a public hearing on October 27, 2022, at 9:00 a.m. to receive public comments on state fiscal year 2023 proposed interim reimbursement rates for the State Veterans Nursing Homes, effective retroactive to September 1, 2022.


Public Notice – Appendix K Class Waiver

OVERVIEW

Due to the public health emergency resulting from COVID-19, the Health and Human Services Commission (HHSC) submitted a request to the Centers for Medicare & Medicaid Services to amend the waiver application for the Community Living Assistance and Support Services (CLASS) waiver program through an Appendix K. HHSC administers the CLASS waiver program under the authority of §1915(c) of the Social Security Act.


Public Notice – K Factor C HCS Waiver

OVERVIEW

Due to the public health emergency resulting from COVID-19, the Health and Human Services Commission (HHSC) submitted a request to the Centers for Medicare & Medicaid Services for an amendment to the Home and Community-based Services (HCS) waiver under §1915 (c) of the Social Security Act through an Appendix K.


Texas State Board of Examiners of Psychologists

Proposed Rules Re:

Amending 22 TAC §463.11, to add the Psychological Clinical Science Accreditation System to the list of accredited programs where an applicant can count a certain amount of supervised experience as part of the applicant’s internship.

CHAPTER 463. APPLICATIONS AND EXAMINATIONS
SUBCHAPTER B. LICENSING REQUIREMENTS
22 TAC §463.11

OVERVIEW

The Texas Behavioral Health Executive Council proposes amendments to §463.11, relating to Supervised Experience Required for Licensure as a Psychologist.

BACKGROUND AND JUSTIFICATION

The proposed amendment to subsection (b) adds the Psychological Clinical Science Accreditation System to the list of accredited programs where an applicant can count supervised experience obtained in excess of the 1,750 hours required as part of the applicant’s internship. Subsection (c)(2) is proposed to be deleted, doing away with any time requirements between when a degree is awarded and when the individual applies for licensure. Corresponding amendments have been made in subsection (f) because of the deletion of subsection (c)(2).


Withdrawn Rules Re:

Withdrawing the proposed amendment 22 TAC §463.11, which concerned supervised experience for licensure as a psychologist.

CHAPTER 463. APPLICATIONS AND EXAMINATIONS
SUBCHAPTER B. LICENSING REQUIREMENTS
22 TAC §463.11

OVERVIEW

The Texas Behavioral Health Executive Council withdraws the proposed amendment rule §463.11, Supervised Experience Required for Licensure as a Psychologists which appears in the September 30, 2022 issue of the Texas Register (47 TexReg 6393).


Texas Department of State Health Services

In Addition Re:

Licensing Actions for Radioactive Materials

For more information, please visit this week’s edition of the Texas Register at 47 Tex Reg 7107.


Licensing Actions for Radioactive Materials

For more information, please visit this week’s edition of the Texas Register at 47 Tex Reg 7112.


Licensing Actions for Radioactive Materials

For more information, please visit this week’s edition of the Texas Register at 47 Tex Reg 7118.