TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PUCHASED HEALTH SERVICES

The Texas Health and Human Services Commission (HHSC) adopts amendments to §354.1121, concerning Definitions, without changes to the proposed text published in the September 1, 2017, issue of the Texas Register (42 TexReg 4375). HHSC adopts amendments to §354.1221, concerning Authorized Dentists' Services, with changes to the proposed text published in the September 1, 2017, issue of the Texas Register (42 TexReg 4375).

BACKGROUND AND JUSTIFICATION

Current federal Medicaid rules allow Medicaid-enrolled physicians to arrange for a substitute Medicaid-enrolled physician to serve in the billing physician's practice on a short or long-term basis, known as a locum tenens arrangement. House Bill 1661, 84th Legislature, Regular Session, 2015, directed HHSC to adopt rules to allow this practice for dentists in Texas Medicaid.

HHSC staff consulted with the Centers for Medicare & Medicaid Services (CMS) staff on the federal guidance related to substitute arrangements for dentists. CMS informed HHSC that locum tenens arrangements are not allowed for dentists as they are for physicians, because of the distinction drawn between "physician" and "dentist" in federal Medicaid law. Specifically, §1902(a)(32)(C) of the Social Security Act permits a locum tenens arrangement in the case of services provided by a physician, and the definition of "physicians' services" in 42 C.F.R. §440.50 does not include services provided by a dentist.

While a locum tenens relationship is not permitted for dentists under federal law, a Medicaid-enrolled dentist may serve as a billing agent for a substitute dentist. The adopted rule amendments offer an alternate billing arrangement option to Texas Medicaid dentists. Under the billing arrangement, the substitute dentist is required to be enrolled in Medicaid. The arrangement is time-limited, to 90 consecutive days, unless the reason for the billing agent dentist's absence is active duty service as a member of a reserve component in the U.S. Armed Forces.

In response to public comments, the adopted rule amendments to §354.1121 and §354.1221 lengthen the time period a dentist may use a substitute dentist, from 14 days to 90 days, to match the allocated days granted to physicians.

COMMENTS

The 30-day comment period ended October 2, 2017. During this period, HHSC received comments regarding the proposed rule amendments from four commenters, including the Texas Dental Association, South Texas Dental, State Representative Bobby Guerra, and Community Dental Partners. A summary of comments and HHSC's responses follows.

Comment: One commenter expressed concern that the proposed language of §354.1221 does not meet the legislative intent of House Bill 1661, in that payments for dental services rendered are made directly to the substitute dentist, instead of the billing dentist. The commenter stated that payment for services provided by the substitute dentist should be paid to the billing dentist.

Response: The total payment for the substitute dentist's work will be paid to the billing agent dentist, not the substitute dentist. Through contract, the billing agent dentist pays the substitute dentist his/her portion. Under 42 C.F.R. 447.10, the billing agent dentist's compensation must be related to the cost of processing the billing, not related on a percentage or other basis to the amount that is billed or collected, and not dependent upon the collection of the payment. HHSC did not revise the rule in response to this comment.

Comment: One commenter expressed concern regarding proposed changes to §354.1221 that both Dental Managed Care Organizations (DMOs) offer locum tenens arrangements as part of their administration of the Texas Dental Program, and that if the rule is adopted, the DMOs may interpret it to mean that they can no longer offer such arrangements to their credentialed dentists.

Response: On July 17, 2017, HHSC sent a notice dictating that DMOs must, effective immediately, inform their providers that a locum tenens relationship with a substitute dentist is not an allowable arrangement under Texas Medicaid at this time. HHSC did not revise the rule in response to this comment.

Comment: Several commenters expressed concern that in the proposed rule amendments to §354.1221, the 14-day time limit for dentists is too short and does not take into account dentists who take time off for maternity leave, travel to their home countries, or have medical or personal issues that keep them away from their practice for more than 14 days. Additionally, a commenter mentioned that this is particularly pertinent to dentists in rural communities where there may only be one dentist who treats Medicaid patients. After the 14-day period ends, children with infections or tooth aches would simply have to wait for care until the credentialed dentist is able to return.

Response: The intent of House Bill 1661 was to extend to dentists the same arrangement physicians receive, to the extent allowed by federal law. HHSC has reviewed all stakeholder comments regarding the concern over the number of days a dentist may use a substitute dentist. HHSC revised the rule in response to these comments, lengthening the time frame from 14 to 90 consecutive days.

Comment: One commenter expressed concern regarding proposed amendments to §354.1221 in respect to the CMS decision that the definition of "physicians' services" in 42 C.F.R. §440.50 does not include services provided by a dentist. The commenter suggested that federal law is ambiguous about the definition of "physician" and the inclusion of dentists in that definition. The commenter stated that §1861(r)(2) of the Social Security Act defines the term "physician" as including a doctor of dental surgery or of dental medicine.

Response: HHSC respectfully declines to amend the rule as proposed based on this comment. The definition of "physician" cited by the commenter is located in §1861(r)(2) of the Social Security Act, and the text of that section limits the application of the definition to Title 18 of the Social Security Act. Title 19 of the Social Security Act governs this rule action.

DIVISION 10. DEFINITIONS

1 TAC §354.1121

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2017.

TRD-201705044

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 31, 2017

Proposal publication date: September 1, 2017

For further information, please call: (512) 428-1935


DIVISION 14. DENTISTS' SERVICES

1 TAC §354.1221

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal Medicaid program in Texas.

§354.1221.Authorized Dentists' Services.

(a) Dentists' services provided by a doctor of dentistry (DDS, DMD, or DDM), as defined in §354.1121 of this subchapter (relating to Definitions), are covered by the Texas Medicaid Program if the services:

(1) are within the dentist's scope of practice, as defined by state law; and

(2) would be covered by the Texas Medicaid Program when they are provided by a licensed physician (MD or DO).

(b) Substitute dentist. A dentist may act as a billing agent, pursuant to 42 CFR 447.10, to submit claims. To qualify for reimbursement, the billing agent dentist and substitute dentist must comply with the following requirements:

(1) The substitute dentist must be licensed to practice in the state of Texas.

(2) Consistent with the requirements of §371.1605 and §371.1705 of this title (relating to Provider Responsibility and Mandatory Exclusion, respectively), the substitute dentist must be enrolled in Medicaid and not be on the Medicaid or Title XX provider exclusion list.

(3) The substitute dentist's National Provider Identifier (NPI) must be entered on the dental claim form.

(4) The billing agent dentist must submit the claims on behalf of the substitute dentist and may recover no more than the actual administrative cost of submitting the claim on behalf of the substitute dentist. This cost is not reimbursable by Medicaid.

(5) The billing agent dentist may only bill for services furnished by a substitute dentist on a temporary basis, for no longer than a 90-day consecutive period. Except as provided in paragraph (6) of this subsection, the billing agent dentist may not submit a claim for services furnished by a substitute dentist to address long-term absences or vacancies in a dental practice.

(6) A billing agent dentist may submit claims for the services of a substitute dentist for longer than 90 consecutive days, if the billing agent dentist has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Medicaid accepts claims from the billing agent dentist for services provided by the substitute dentist for the duration of the billing agent dentist's active duty as a member of a reserve component of the Armed Forces.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 11, 2017.

TRD-201705045

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 31, 2017

Proposal publication date: September 1, 2017

For further information, please call: (512) 428-1935