Texas Register October 6, 2023 Volume: 48 Number: 40

Governor

Appointments Re:

The Governor appointed four individuals to the Council on Cardiovascular Disease and Stroke.

Appointments for September 25, 2023

Appointed to the Council on Cardiovascular Disease and Stroke for a term to expire February 1, 2025:

• Remedios “Remmy” Perez Morris of Round Rock, Texas (replacing Samantha Kersey of Dickinson, who resigned).

Appointed to the Council on Cardiovascular Disease and Stroke for a term to expire February 1, 2029:

• Oscar M. Aguilar, Jr., M.D. of El Paso, Texas (replacing Harry K. “Kyle” Sheets, M.D. of Ovalo, whose term expired).
• Janet Hall Hewlett of Florence, Texas (Ms. Hewlett is being reappointed).
• Alberto Maud, M.D. of El Paso, Texas (replacing John N. “Neal” Rutledge, M.D. of Austin, whose term expired).

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The Governor appointed a new Inspector General for Health and Human Service.

Appointments for September 26, 2023

Appointed as Inspector General for Health and Human Service, effective October 2, 2023, for a term to expire February 1, 2024, Raymond C. “Ray” Winter of Austin, Texas (replacing Sylvia Hernandez Kaufmann of Austin, whose term expired).

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Texas Department of Insurance

Proposed Rules Re:

Amending 28 TAC §3.9901, to modify the valuation manual in order to make changes which are substantially similar to those adopted by the National Association of Insurance Commissioners (NAIC).

CHAPTER 3. LIFE, ACCIDENT, AND HEALTH INSURANCE AND ANNUITIES
SUBCHAPTER RR. VALUATION MANUAL
28 TAC §3.9901

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §3.9901, concerning the adoption of a valuation manual for reserving and related requirements. The amendment to §3.9901 implements Insurance Code §425.073.

BACKGROUND AND JUSTIFICATION

The amendment to §3.9901 is necessary to comply with Insurance Code §425.073, which requires the commissioner to adopt a valuation manual that is substantially similar to the National Association of Insurance Commissioners (NAIC) Valuation Manual.

Under Insurance Code §425.073, the commissioner must adopt the valuation manual, and any changes to it, by rule.

Under Insurance Code §425.073(c), when the NAIC adopts changes to its valuation manual, the commissioner must adopt substantially similar changes. This subsection also requires the commissioner to determine that NAIC’s changes were approved by an affirmative vote representing at least three-fourths of the voting NAIC members, but not less than a majority of the total membership. In addition, the NAIC members voting in favor of amending the valuation manual must represent jurisdictions totaling greater than 75% of the direct written premiums as reported in the most recently available life, accident, and health/fraternal annual statements and health annual statements.

TDI originally adopted the valuation manual in §3.9901 on December 29, 2016, in compliance with Insurance Code §425.073. On August 16, 2023, the NAIC voted to adopt changes to the valuation manual. Fifty jurisdictions, representing jurisdictions totaling 89.48% of the relevant direct written premiums, voted in favor of adopting the amendments to the valuation manual. The vote adopting changes to the NAIC Valuation Manual meets the requirements of Insurance Code §425.073(c).

This proposal includes provisions related to NAIC rules, regulations, directives, or standards. Under Insurance Code §36.004, TDI must consider whether authority exists to enforce or adopt the NAIC’s changes. In addition, under Insurance Code §36.007, the commissioner cannot adopt or enforce a rule implementing an interstate, national, or international agreement that infringes on the authority of this state to regulate the business of insurance in this state, unless the agreement is approved by the Texas Legislature. TDI has determined that neither §36.004 nor §36.007 prohibit this proposal because Insurance Code §425.073 requires the Texas insurance commissioner to adopt a valuation manual that is substantially similar to the valuation manual approved by the NAIC, and §425.073(c) expressly requires the commissioner to adopt changes to the valuation manual that are substantially similar to changes adopted by the NAIC.

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Amending 28 TAC §21.2819 to clarify requirements regarding deadline extensions for claim submissions and payments for providers and health plans following a catastrophic event that interfered with normal business operations.

CHAPTER 21. TRADE PRACTICES
SUBCHAPTER T. SUBMISSION OF CLEAN CLAIMS
28 TAC §21.2819

OVERVIEW

The Texas Department of Insurance (TDI) proposes to amend 28 TAC §21.2819, concerning extensions of time frame requirements on providers and health plans for claim submissions and payments in Insurance Code §§843.337, 843.342, 1301.102, and 1301.137–prompt pay deadlines–due to a catastrophic event. The proposed amendments to §21.2819 implement Senate Bill 1286, 88th Legislature, 2023.

BACKGROUND AND JUSTIFICATION

This proposal implements SB 1286, which provides two ways that an entity–an HMO, a preferred provider carrier, an exclusive provider carrier, a physician, or a provider–can qualify for an extension of a prompt pay deadline after a catastrophic event. An entity can extend its prompt pay deadlines after a catastrophic event either under an extension granted by commissioner notice or by TDI approving a request for an extension submitted by the entity.

SB 1286 is a TDI biennial recommendation. During the COVID-19 pandemic, TDI issued bulletins about extensions of various deadlines. There were questions about processes for these extensions; TDI agreed clarifications were necessary and made a recommendation to the legislature in its Biennial Report. Based on this, the biennial recommendation’s goal was to clarify (1) the standards for entities requesting extensions to prompt pay deadlines; (2) the duration of the extensions; and (3) TDI’s authority to approve, limit, or disapprove requests. This proposal provides needed clarity in the process for requesting and receiving prompt pay deadline extensions.

SECTION-BY-SECTION SUMMARY

• Section 21.2819 provides the process for an entity to notify TDI about its need for an extension of prompt pay deadlines due to the effects of a catastrophic event on its normal business operations.
• An amendment to subsection (a) clarifies the date range in which an entity must notify TDI that a catastrophic event has interfered with normal business operations.
• One amendment to subsection (b) clarifies how entities will electronically communicate with TDI regarding an extension, and what information they need to provide. Rather than notifying TDI a second time at the end of the business interruption, entities will be required to provide all necessary information in their initial request. Another amendment eliminates the need for the notification to be a sworn affidavit, as that is an unnecessary additional expense to entities that are experiencing administrative challenges.
• Amendments are also proposed to the required notification elements in subsection (b) to better track extension requests; for example, a physician’s or provider’s national provider identification number or a managed care carrier’s (MCC’s) NAIC number will be required. The proposed amendments also require a statement that there is a substantial interference to normal business operations, to ensure that the statutory requirements are met. Some entities contract with third parties or delegees to administer their payment requirements. In that instance, the entity will notify TDI that a catastrophic event interrupted the business operations of the third party and that interruption is also affecting the entity’s business operations. TDI will take this business arrangement into consideration in its review of a request.
• The proposed amendments also require an entity to provide the initial date of the interference, the expected end date, and information needed to identify entities and locations that are affected by an event.
• Proposed amendments to subsection (c) clarify the time frame of an extension. If the extension is related to a notice from the commissioner, the notice will specify the extension’s expected end date. For extension requests independent of a commissioner notice, the applicable deadlines in 28 TAC §§21.2804, 21.2806 – 21.2809, and 21.2815 will be tolled until TDI either disapproves the request or sends an approval with a specified end date.
• In addition, in new subsection (d) the proposal sets out a process for requesting an extension request, should an entity require more time than a commissioner notice or TDI approval previously allowed. The entity must submit this request at least three business days before the existing extension’s expiration explaining why it needs additional time.
• The proposed amendments add subsection (e) to address the possibility that TDI may need additional information when determining whether to approve a request for an extension. The new subsection also specifies that TDI may disapprove a request if the nature of the event does not meet the definition of a catastrophic event or may limit a requested extension if the duration of interruption to normal business operations is not proportional to the nature of the catastrophic event.
• The amendments clarify that extensions will be based on the date the catastrophic event begins substantially interfering with normal business operations rather than requiring the date of the event itself, as events such as pandemics may affect business operations at different times.
• Lastly, the proposed amendments include nonsubstantive editorial and formatting changes to conform the section to the agency’s current drafting style and usage guidelines and to improve the rule’s clarity. These changes include modifying the references to TDI for consistency.

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Texas Health and Human Services Commission

Proposed Rule Reviews Re:

Reviewing the entirety of Title 26, Part 1, to consider for readoption, revision, or repeal the chapter covering Preadmission Screening and Resident Review.

The Texas Health and Human Services Commission (HHSC) proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 26, Part 1, of the Texas Administrative Code:

Chapter 303, Preadmission Screening and Resident Review (PASRR)

Subchapter A General Provisions

Subchapter B PASRR Screening and Evaluation Process

Subchapter C Responsibilities

Subchapter D Vendor Payment

Subchapter E Habilitation Coordination

Subchapter F Habilitative Service Planning for A Designated Resident

Subchapter G Transition Planning

Subchapter H Compliance Review

Subchapter I MI Specialized Services

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In Addition Re:

Correction of Error to 48 TexReg 5676.

OVERVIEW

The Health and Human Services Commission (HHSC) adopted amendments to 26 TAC §511.1 in the September 29, 2023, issue of the Texas Register (48 TexReg 5676). Due to an error by the Texas Register, the section title is incorrect as published. The section title should read as follows:

§511.1. Purpose.

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Public Notice: TxHmL EVV Amendment, to show that CMS has approved the TxHmL waiver application through February 28, 2027.

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 Texas Home Living (TxHmL) program. HHSC administers the TxHmL Program under the authority of Section 1915(c) of the Social Security Act. CMS has approved the TxHmL waiver application through February 28, 2027. The proposed effective date for this amendment is February 19, 2024.

The request proposes to amend Appendix I to change existing language regarding Electronic Visit Verification (EVV) requirements. HHSC will require program providers to use EVV for certain services. This requirement is to address the expansion of EVV in home health care services as required by §1903(l) of the Social Security Act (U.S.C. Title 42, §1396b, subsection l) as amended by the 21st Century Cures Act. The services impacted by this change in the TxHmL waiver are: respite (EVV requirement specific to in-home); individualized skills and socialization (EVV requirement specific to in-home); nursing services; occupational therapy services; and physical therapy services and the consumer directed services (CDS) option for the following services: respite (EVV requirement specific to in-home) and nursing.

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Updated Public Notice – Texas State Plan for Medical Assistance Amendment, to show the intent of HHSC to submit an amendment to the reimbursement methodology for Disproportionate Share Hospital (DSH) Programs for the Texas State Plan for Medical Assistance.

OVERVIEW

The Texas Health and Human Services Commission (HHSC) provides this update to a public notice published on April 28, 2023.

HHSC announces its intent to submit an amendment to the Texas State Plan for Medical Assistance, under Title XIX of the Social Security Act. The proposed amendment is effective October 1, 2023. The April 28, 2023 notice indicated that the amendment would be effective June 1, 2023.

The purpose of the amendment is to update the reimbursement methodology for the Disproportionate Share Hospital (DSH) Program. This proposal amends the definition of the rural provider classes, establishes a new rural DSH pool, describes a methodology for redistribution of certain recouped funds, modifies the calculation of the Low-Income Utilization Rate to reflect federal law, updates the calculation of the State Payment Cap and payment allocation methodology, establishes changes to qualifications of the program, revises the advance payment methodology for federal fiscal year 2024, and makes other clarifying amendments. For the DSH program, the annual aggregate expenditures are expected to remain fiscally neutral with this amendment.

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Texas Department of State Health Services

Proposed Rules Reviews Re:

Title 25, Part 1, to consider for readoption, revision, or repeal the chapter concerning the Oral Health Improvement Program.

The Texas Health and Human Services Commission (HHSC), on behalf of Texas Department of State Health Services (DSHS), proposes to review and consider for readoption, revision, or repeal the chapter listed below, in its entirety, contained in Title 25, Part 1, of the Texas Administrative Code:

Chapter 49, Oral Health Improvement Program

This review is conducted in accordance with the requirements of Texas Government Code §2001.039, which requires state agencies, every four years, to assess whether the initial reasons for adopting a rule continue to exist. After reviewing its rules, the agency will readopt, readopt with amendments, or repeal its rules.

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