TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PURCHASED HEALTH SERVICES

The Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1069, concerning Sign Language Interpreter Services; §354.1382, concerning Conditions for Participation; and §354.1401, concerning In-home Respiratory Therapy Services for Ventilator-Dependent Persons.

BACKGROUND AND JUSTIFICATION

The proposed amendments correct terminology, correct cross references to other sections of the Texas Administrative Code, correct cross references to statute, and make other non-substantive changes.

SECTION-BY-SECTION SUMMARY

Proposed §354.1069 corrects a cross reference to another rule in subsection (c)(3).

Proposed §354.1382 updates language in the rule and corrects cross references to statute. Subsection (d)(3) is removed, as the rule cross-referenced has been repealed.

Proposed §354.1401 changes subsection (a) to active voice, removes unnecessary language in subsection (d), and updates the respiratory therapy certification information in subsection (e)(2).

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years the amended rules are in effect, there is no anticipated fiscal impact to costs and revenues of state and local government.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

HHSC has determined that there will be no adverse economic effect on small businesses or micro-businesses to comply with the amended rules, as there is no requirement for any small businesses or micro businesses to alter current business practices as a result of the amended rules.

PUBLIC BENEFIT AND COST

Gary Jessee, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be rules that provide more accurate, updated information and cross references.

Ms. Rymal has also determined that there are no probable economic costs to persons required to comply with the amended rules.

HHSC has determined that the amended rules will not affect a local economy. There is no anticipated negative impact on local employment.

REGULATORY ANALYSIS

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Amy Chandler, Program Specialist, by mail to P.O. Box 13247, MC H600, Austin, TX, 78711; or by e-mail to amy.chandler@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

DIVISION 5. PHYSICIAN AND PHYSICIAN ASSISTANT SERVICES

1 TAC §354.1069

STATUTORY AUTHORITY

The amendment is proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendment implements Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1069.Sign Language Interpreter Services.

(a) Definitions. The following words and terms, when used in this chapter, have the following meanings.

(1) Deaf--The term "deaf" is defined in the Human Resources Code, Title 4, Services for the Deaf, Chapter 81, Texas Commission for the Deaf and Hard of Hearing, §81.001, Definitions.

(2) Hard of Hearing--The term "hard of hearing" is defined in the Human Resources Code, Title 4, Services for the Deaf, Chapter 81, Texas Commission for the Deaf and Hard of Hearing, §81.001, Definitions.

(3) Interpreter--An interpreter is an individual who possesses one of the following certification levels (i.e., levels A - H) issued by either the Department of Assistive and Rehabilitative Services, Office for Deaf and Hard of Hearing Services, Board for Evaluation of Interpreters (BEI) or the National Registry of Interpreters for the Deaf (RID):

(A) Certification Level A:

(i) Level I/Ii; and

(ii) OC:B (Oral Certificate: Basic).

(B) Certification Level B:

(i) BEI Basic; and

(ii) RID NIC (National Interpreter Certificate) Certified.

(C) Certification Level C:

(i) BEI Level II/IIi;

(ii) RID CI (Certificate of Interpretation);

(iii) RID CT (Certificate of Transliteration);

(iv) RID IC, (Interpretation Certificate); and

(v) RID TC (Transliteration Certificate).

(D) Certification Level D:

(i) BEI Level III/IIIi;

(ii) BEI OC: C (Oral Certificate: Comprehensive);

(iii) BEI OC: V (Oral Certificate: Visible);

(iv) RID CSC (Comprehensive Skills Certificate);

(v) RID IC/TC (Interpretation Certificate/Transliteration Certificate);

(vi) RID CI/CT (Certificate of Interpretation/Certificate of Transliteration);

(vii) RID RSC (Reverse Skills Certificate); and

(viii) RID CDI (Certified Deaf Interpreter).

(E) Certification Level E:

(i) BEI Advanced; and

(ii) RID NIC Advanced.

(F) Certification Level F:

(i) BEI IV/IVi;

(ii) RID MCSC (Master Comprehensive Skills Certificate); and

(iii) RID SC: L (Specialist Certificate: Legal).

(G) Certification Level G is BEI V/VI.

(H) Certification Level H:

(i) BEI Master; and

(ii) RID NIC Master.

(4) Interpreting Services--The provision of voice-to-sign, sign-to-voice, gestural-to-sign, sign-to-gestural, voice-to-visual, visual-to-voice, sign-to-visual, or visual-to-sign services for communication access provided by a certified interpreter.

(b) Benefit and Limitations. Sign language interpreting services are a health care benefit of the State Medical Assistance (Medicaid) Program.

(1) Sign language interpreting services must be requested by a physician and provided by a qualified interpreter to facilitate communication between:

(A) A client who is deaf or hard of hearing and a physician during the course of a medically necessary medical examination or other medical services; or,

(B) A client's parent or guardian who is deaf or hard of hearing and a physician during the course of the client's medically necessary medical examination or other medical services.

(2) A physician's determination of the need for sign language interpreting services shall give primary consideration to the needs of the individual who is deaf or hard of hearing.

(3) The physician requesting interpreting services must maintain documentation verifying the provision of interpreting services.

(A) Documentation of the service must be included in the patient's medical record and must include the name of the sign language interpreter and the interpreter's certification level.

(B) Documentation must be made available if requested by the Commission or its designee.

(c) Physician requirements for billing of and reimbursement for sign language interpreting services.

(1) Physicians must be enrolled in the Texas Medicaid Program to be considered for reimbursement.

(2) Reimbursement for sign language interpreting services is limited to physicians or physician groups employing fewer than fifteen employees.

(3) Providers seeking reimbursement for sign language interpreting services must provide and bill for the service in the manner prescribed by the Texas Medicaid Program and in accordance with §355.8085 of this title (relating to Reimbursement Methodology for Physicians and Other Practitioners [Texas Medicaid Reimbursement Methodology (TMRM) for Physician and Certain Other Practitioners]).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606483

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 487-3419


DIVISION 29. LICENSED PROFESSIONAL COUNSELORS, LICENSED CLINICAL SOCIAL WORKERS, AND LICENSED MARRIAGE AND FAMILY THERAPISTS

1 TAC §354.1382

STATUTORY AUTHORITY

The amendment is proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendment implements Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1382.Conditions for Participation.

(a) To participate in the Texas Medical Assistance Program, licensed professional counselors (LPCs) must be licensed by the Texas State Board of Examiners of Professional Counselors in accordance with Chapter 503 of the Texas Occupations Code [the Texas Licensed Professional Counselor Act, Texas Civil Statutes, Article 4512g].

(b) To participate in the Texas Medical Assistance Program, licensed clinical social workers (LCSWs) [licensed master social worker-advanced clinical practitioners (LMSW-ACPs)] must be licensed [as a master social worker and be recognized as being qualified] for the practice of clinical social work by the Texas State Board of Social Worker Examiners in accordance with Chapter 505 of the Texas Occupations Code [the Human Resources Code, Subtitle E, Chapter 50].

(c) To participate in the Texas Medical Assistance Program, licensed marriage and family therapists (LMFTs) must be licensed by the Texas State Board of Examiners of Marriage and Family Therapists in accordance with Chapter 502 of the Texas Occupations Code [the Licensed Marriage and Family Therapist Act, Texas Civil Statutes, Article 4512c-1].

(d) These providers must:

(1) meet the appropriate licensing requirements as required in subsections (a), (b) or (c) of this section;

(2) comply with all applicable federal and state laws and regulations governing the services provided; [(]

[(3) be enrolled and participating in Medicare (this applies to LMSW-ACPs only), unless the provider satisfies criteria for exemption described in §354.1173(b);]

(3) [(4)] be enrolled and approved for participation in the Texas Medical Assistance Program;

(4) [(5)] sign a written provider agreement with the Commission or its designee;

(5) [(6)] comply with the terms of the provider agreement and all requirements of the Texas Medical Assistance Program, including regulations, rules, handbooks, standards, and guidelines published by the Commission or its designee; and

(6) [(7)] bill for services covered by the Texas Medical Assistance Program in the manner and format prescribed by the Commission or its designee.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606486

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 462-6271


DIVISION 31. IN-HOME RESPIRATORY THERAPY SERVICES FOR VENTILATOR-DEPENDENT PERSONS

1 TAC §354.1401

STATUTORY AUTHORITY

The amendment is proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendment implements Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1401.In-home Respiratory Therapy Services for Ventilator-Dependent Persons.

(a) Subject to the specifications, conditions, limitations, and requirements established by HHSC or its designee, in-home respiratory therapy services are [shall be made] available to eligible recipients who:

(1) are ventilator-dependent for life support at least six hours per day;

(2) have been so dependent for at least 30 consecutive days as an inpatient in one or more hospitals, skilled nursing facilities (SNF), or intermediate care facilities (ICF);

(3) but for the availability of these respiratory care services at home, would require respiratory care as an inpatient in a hospital, SNF, or ICF;

(4) would be eligible to have payment made for such inpatient care under the state Medicaid plan;

(5) have adequate social support services to be cared for at home; and

(6) wish to be cared for at home.

(b) Covered respiratory therapy services must be reasonable, medically necessary, and prescribed by the recipient's physician (MD or DO). The physician must be licensed in the state in which the physician practices.

(c) HHSC or its designee must authorize the services prior to their delivery. Prior authorization requests must include all pertinent medical records and other information as required by HHSC or its designee to justify the medical necessity of and/or dependency on the ventilator support and therapy services and to ensure that the requirements in subsection (a) of this section are met. Prior authorization is a requirement for payment. HHSC or its designee may extend the prior authorization based upon an interim report from the physician documenting the medical necessity and appropriateness of continued in-home respiratory therapy services.

(d) Covered services include[, but are not necessarily limited to, the following]:

(1) respiratory therapy services and treatments prescribed by the recipient's physician; and

(2) education of the recipient and/or appropriate family members/support persons regarding the in-home respiratory care. Education must include the use and maintenance of required supplies, equipment, and techniques appropriate to the situation.

(e) Providers of respiratory therapy services must meet the following requirements:

(1) comply with all applicable federal, state, and local laws and regulations;

(2) be certified by the Texas Medical Board [Department of Health] to practice under Chapter 604 of the Texas Occupations Code [Texas Civil Statutes, Article 4512L];

(3) be enrolled and approved for participation in the Texas Medical Assistance Program;

(4) sign a written provider agreement with HHSC or its designee. By signing the agreement, the provider agrees to comply with the terms of the agreement and all requirements of the Texas Medical Assistance Program including regulations, rules, handbooks, standards, and guidelines published by HHSC or its designee; and

(5) bill for covered services in the manner and format prescribed by HHSC or its designee.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606488

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 462-6271


DIVISION 33. ADVANCED TELECOMMUNICATIONS SERVICES

1 TAC §354.1432

The Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations.

BACKGROUND AND JUSTIFICATION

The proposed rule amendments clarify that a patient must receive an initial evaluation by a physician or other qualified healthcare professional prior to receiving telehealth services, with the exception of services to treat a mental health diagnosis or condition. The proposed rule amendments further require that a patient receive an annual follow-up evaluation by a physician or other qualified healthcare professional for continued receipt of telehealth services, again with the exception of services to treat a mental health diagnosis or condition. The proposed amendments permit the evaluating physician or other qualified healthcare professional to conduct the evaluation in person or through a telemedicine visit that conforms to Texas Medical Board rules in 22 TAC Chapter 174, concerning Telemedicine.

SECTION-BY-SECTION SUMMARY

Proposed §354.1432(2)(E) clarifies that a physician or other qualified healthcare professional must conduct an initial evaluation of patient either through an in-person visit or a telemedicine visit before the patient can receive telehealth services. A patient who is receiving telehealth services for a mental health diagnosis or condition is not required to receive an initial evaluation by a physician or other qualified healthcare professional.

Proposed §354.1432(2)(F) clarifies that a physician or other qualified healthcare professional must conduct an evaluation every 12 months either through an in-person visit or a telemedicine visit for a patient to continue receiving telehealth services. A patient who is receiving telehealth services for a mental health diagnosis or condition is not required to receive follow-up evaluations by a physician or other qualified healthcare professional.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rule is in effect, there is no anticipated impact to costs and revenues of state and local governments.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

HHSC has determined that there will be no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amended rule, as the proposal serves only to provide clarification of current Texas Medicaid policy and practice.

PUBLIC BENEFIT AND COST

Jami Snyder, State Medicaid Director, has determined that for each year of the first five years the amended rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit is increased clarity for providers in Medicaid operational requirements for telehealth services, as well as better continuity of care for clients receiving telehealth services as part of their physician-directed care package.

Ms. Rymal has also determined that there are no probable economic costs to persons who are required to comply with the amended rule.

HHSC has determined that the amended rule will not affect a local economy. There is no anticipated negative impact on local employment.

REGULATORY ANALYSIS

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Erin McManus, Policy Analyst, Texas Health and Human Services Commission, P.O. Box 149030, Mail Code H370, Austin, Texas 78714-9030; by fax to (512) 730-7475; or by e-mail to Erin.McManus@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The amendment is proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendment implements Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531.

§354.1432.Telemedicine and Telehealth Benefits and Limitations.

Telemedicine medical services and telehealth services are a benefit under the Texas Medicaid program as provided in this section and are subject to the specifications, conditions, limitations, and requirements established by the Texas Health and Human Services Commission or its designee (HHSC).

(1) Conditions for reimbursement applicable to telemedicine medical services.

(A) The telemedicine medical services must be designated for reimbursement by HHSC. Telemedicine medical services designated for reimbursement include:

(i) consultations;

(ii) office or other outpatient visits;

(iii) psychiatric diagnostic interviews;

(iv) pharmacologic management;

(v) psychotherapy; and

(vi) data transmission.

(B) The services must be provided in compliance with 22 TAC Chapter 174 (relating to Telemedicine).

(C) The patient site must be:

(i) an established medical site;

(ii) a state mental health facility; or

(iii) a state supported living center.

(D) For a child receiving telemedicine medical services in a primary or secondary school-based setting, advance parent or legal guardian consent for a telemedicine medical service must be obtained.

(E) The patient's primary care physician or provider must be notified of a telemedicine medical service, unless the patient does not have a primary care physician or provider.

(i) The patient receiving the telemedicine medical service, or the patient's parent or legal guardian, must consent to the notification.

(ii) For a telemedicine medical service provided to a child in a primary or secondary school-based setting, the notification must include a summary of the service, including:

(I) exam findings;

(II) prescribed or administered medications; and

(III) patient instructions.

(F) If a child receiving a telemedicine medical service in a primary or secondary school-based setting does not have a primary care physician or provider, the child's parent or legal guardian must be offered:

(i) the information in subparagraph (E)(ii) of this paragraph; and

(ii) a list of primary care physicians or providers from which to select the child's primary care physician or provider.

(G) Telemedicine medical services provided in a school-based setting by a physician, even if the physician is not the patient's primary care physician or provider, are reimbursed if:

(i) the physician is enrolled as a Medicaid provider;

(ii) the patient is a child who receives the service in a primary or secondary school-based setting;

(iii) the parent or legal guardian of the patient provides consent before the service is provided; and

(iv) a health professional as defined by Texas Government Code §531.0217(a)(1) is present with the patient during the treatment.

(2) Conditions for reimbursement applicable to telehealth services.

(A) The telehealth services must be designated for reimbursement by HHSC. Designated telehealth services will be listed in the Texas Medicaid Provider Procedures Manual.

(B) The services must be provided in compliance with standards established by the respective licensing or certifying board of the professional providing the services.

(C) The patient site must be:

(i) an established health site;

(ii) a state mental health facility; or

(iii) a state supported living center.

(D) The patient site presenter must be readily available for telehealth services. However, if the telehealth services relate only to mental health, a patient site presenter does not have to be readily available except when the patient may be a danger to himself or to others.

(E) Before receiving a telehealth service, the patient must receive an initial [in-person] evaluation for the same diagnosis or condition by a physician or other qualified healthcare professional licensed in Texas.

(i) A required initial evaluation must be performed in-person or as a telemedicine visit that conforms to 22 TAC Chapter 174 (relating to Telemedicine).

(ii) If the patient is receiving the telehealth services to treat a mental health diagnosis or condition, the patient is not required to receive an initial evaluation. [, with the exception of a mental health diagnosis or condition. For a mental health diagnosis or condition, the patient may receive a telehealth service without an in-person evaluation provided the purpose of the initial telehealth appointment is to screen and refer the patient for additional services and the referral is documented in the medical record.]

(F) A patient receiving telehealth services must be evaluated at least annually by a physician or other healthcare professional licensed in Texas and qualified to determine if the patient has a continued need for services.

(i) The evaluation must be performed in-person or as a telemedicine visit that conforms to 22 TAC Chapter 174.

(ii) This evaluation requirement does not apply to a patient receiving telehealth services for the treatment of a mental health diagnosis or condition from a qualified behavioral health provider licensed in Texas.

[(F) For the continued receipt of a telehealth service, the patient must receive an in-person evaluation at least once during the previous 12 months by a person qualified to determine a need for services.]

(G) Both the distant site provider and the patient site presenter must maintain the records created at each site unless the distant site provider maintains the records in an electronic health record format.

(H) Written telehealth policies and procedures must be maintained and evaluated at least annually by both the distant site provider and the patient site presenter and must address:

(i) patient privacy to assure confidentiality and integrity of patient telehealth services;

(ii) archival and retrieval of patient service records; and

(iii) quality oversight mechanisms.

(3) Conditions for reimbursement applicable to both telemedicine medical services and telehealth services.

(A) Preventive health visits under Texas Health Steps (THSteps), also known as Early and Periodic Screening, Diagnosis and Treatment program, are not reimbursed if performed using telemedicine medical services or telehealth services. Health care or treatment provided using telemedicine medical services or telehealth services after a THSteps preventive health visit for conditions identified during a THSteps preventive health visit may be reimbursed.

(B) Documentation in the patient's medical record for a telemedicine medical service or a telehealth service must be the same as for a comparable in-person evaluation.

(C) Providers of telemedicine medical services and telehealth services must maintain confidentiality of protected health information (PHI) as required by 42 CFR Part 2, 45 CFR Parts 160 and 164, chapters 111 and 159 of the Occupations Code, and other applicable federal and state law.

(D) Providers of telemedicine medical services and telehealth services must comply with the requirements for authorized disclosure of PHI relating to patients in state mental health facilities and residents in state supported living centers, which are included in, but not limited to, 42 CFR Part 2, 45 CFR Parts 160 and 164, Health and Safety Code §611.004, and other applicable federal and state law.

(E) Telemedicine medical services and telehealth services are reimbursed in accordance with Chapter 355 of this title (relating to Reimbursement Rates).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606480

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 462-6271


SUBCHAPTER J. MEDICAID THIRD PARTY RECOVERY

DIVISION 7. HEALTH INSURANCE PREMIUM PAYMENT GUIDELINES

1 TAC §354.2361

The Texas Health and Human Services Commission (HHSC) proposes new §354.2361, concerning Medicaid Health Insurance Premium Payment Program.

BACKGROUND AND JUSTIFICATION

The new rule is proposed to comply with §1906 of the Social Security Act (42 U.S.C. 1396e), enacted in the Omnibus Budget Reconciliation Act (OBRA) of 1990, to reimburse eligible individuals for their share of an employer-sponsored health insurance (ESI) premium payment when cost effective. Until Senate Bill 207, 84th Legislature, Regular Session, 2015, repealed the prohibition of Health Insurance Premium Payment Program (HIPP) participation in Medicaid managed care, the HIPP program only included fee-for-service Medicaid.

The HIPP program generates cost savings to the State by reimbursing individuals eligible for the HIPP program for their ESI premiums, if it is determined that reimbursing the premium is cost effective. Medicaid-eligible individuals in the HIPP program may have access to additional services not covered by Medicaid, or have access to Medicaid services not covered by private insurance. Family members of the individual may have access to services through private health insurance, because the State is paying the private health insurance premiums.

The new rule establishes requirements applicable to individuals with ESI who are Medicaid eligible, or have a family member who is Medicaid eligible, applying for and participating in the HIPP program. Additionally, the rule defines the HIPP program processes for individuals and their employers providing ESI.

SECTION-BY-SECTION SUMMARY

Proposed §354.2361(a) sets out the purpose for the HIPP program.

Proposed §354.2361(b) defines key terms used in §354.2361.

Proposed §354.2361(c) sets out eligibility and requirements for individuals enrolling, or re-enrolling, in the HIPP program.

Proposed §354.2361(d) lists requirements applicable to employers that have employees applying for, or enrolled in the HIPP program.

Proposed §354.2361(e) sets out requirements and the timeline related to health insurance premium payment reimbursements for the HIPP program.

Proposed §354.2361(f) describes the types of written notifications that HHSC will send to HIPP program applicants and enrollees.

Proposed §354.2361(g) sets out requirements for HIPP program enrollees related to overpayments of health insurance premium payment reimbursements and describes the processes HHSC will follow related to recoupment of overpayments.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years the proposed rule is in effect, there is no expected impact to costs or revenues of state or local governments to implement and enforce the rule as proposed.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

HHSC has determined that there will be no adverse economic effect on small businesses or micro businesses to comply with the proposed rule, as they will not be required to alter their business practices as a result of the proposed rule.

Employers that offer a group health benefit plan are encouraged, but not required, to notify their employees about participation in the HIPP program. Employers may benefit from employee participation in the HIPP program through an opportunity to receive a tax credit offered by the Texas Workforce Commission, if eligible.

PUBLIC BENEFIT AND COST

Jami Snyder, State Medicaid Director, has determined that for each year of the first five years the rule is in effect, the public will benefit from the adoption of the rule. The anticipated public benefit will be assistance to help families pay for private health insurance.

Ms. Rymal has also determined that there are no probable economic costs to persons who are required to comply with the proposed rule.

HHSC has determined that the proposed rule will not affect a local economy. There is no anticipated negative impact on local employment.

REGULATORY ANALYSIS

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Deborah Keyser, HIPP program Manager, Medicaid/CHIP Division, Health and Human Services Commission at 4900 N. Lamar Blvd., Austin, Texas 78751; by fax to (512)-487-3454; or, by e-mail to deborah.keyser@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

STATUTORY AUTHORITY

The new rule is proposed 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 medical assistance (Medicaid) program in Texas.

This rule is proposed to effectuate Human Resources Code §32.0422, which requires HHSC to identify and enroll an individual eligible for medical assistance and a group health benefit plan offered by an employer if it is more cost-effective for the State to pay for the individual's share of the health plan premiums than to pay for the individual's Medicaid costs.

The proposed new rule affects Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531.

§354.2361.Medicaid Health Insurance Premium Payment Program.

(a) Purpose. The Medicaid Health Insurance Premium Payment (HIPP) program is established under §1906 of the Social Security Act (42 U.S.C. §1396e) to reimburse an eligible individual's portion of employer-sponsored health insurance premium payments, when cost-effective.

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

(1) Cost-effective--In accordance with §1906 of the Social Security Act (42 U.S.C. §1396e(e)(2)), the amount paid for premiums, coinsurance, deductibles, other cost sharing obligations under a group health plan, and additional administrative costs is less than the amount paid for an equivalent set of Medicaid services.

(2) Employer-sponsored insurance (ESI)--A group health plan offered to an employee through the employer.

(3) Explanation of Benefits (EOB)--A document provided by the insurance company that shows the type of medical service, the date of service, the amount paid by the insurance company, and the amount paid by the individual receiving medical services.

(4) Family member--Any member of a family for which the employer-sponsored insurance plan will allow coverage, such as a spouse or child.

(5) Group health plan--In accordance with Title 26, Internal Revenue Code, §5000(b)(1), a plan (including a self-insured plan) of, or contributed to by, an employer (including a self-employed person) or employee organization to provide health care (directly or otherwise) to the employees, former employees, the employer, others associated or formerly associated with the employer in a business relationship, or their families.

(6) Health and Human Services Commission (HHSC)--The single state agency charged with administration and oversight of the Texas Medicaid program, or its designee.

(7) Open enrollment--The time period established by an employer during which an employee is eligible to sign up for ESI or make changes to an existing ESI benefit plan.

(8) Qualifying event--An event which allows for an individual to enroll in or dis-enroll from a group health plan at any time, within or outside the plan's open enrollment period.

(9) Rate sheet--A document provided by an employer or an insurance company that shows the insurance premium amount the employee is responsible for paying each month.

(10) Summary of benefits--A document provided by an employer or an insurance company that shows the amount the insurance company pays for medical services provided under the benefit plan.

(c) Employee eligibility and requirements.

(1) To qualify for the HIPP program, an employee must be enrolled in:

(A) Medicaid or have a family member that is enrolled in Medicaid;

(B) ESI; and

(C) an ESI plan that allows enrollment of a family member that is enrolled in Medicaid.

(2) The following plans or programs are not eligible for the HIPP program:

(A) Children's Health Insurance Program (CHIP); and

(B) STAR Health Managed Care Program.

(3) Premium payment reimbursement may be available for eligible individuals and their family members who get ESI benefits when it is determined that the cost of insurance premiums, coinsurance, deductibles, and other cost sharing obligations is less than the cost of projected or actual Medicaid expenditures for the family member(s) eligible to receive Medicaid services.

(4) Individuals enrolled in Medicaid and eligible for the HIPP program can receive Medicaid-covered services that are not covered by ESI; Medicaid services not covered by ESI must be provided by a Medicaid-enrolled provider.

(5) Individuals enrolled in Medicaid and eligible for the HIPP program must obtain medical services through their ESI before seeking those services through Medicaid. Medicaid is a payor of last resort and, as such, can be used only for those services not available through their ESI.

(6) Each HIPP program case is subject to an annual re-evaluation of each new ESI benefit period to determine if the case is still cost-effective, regardless of any changes to the individual's Medicaid or ESI. On-going eligibility is approved if a case is determined cost-effective at the annual review.

(7) A determination of HIPP program eligibility is effective for the current ESI benefit period or one year from the date of acceptance into the program unless:

(A) the employer's insurance benefit plan open enrollment period occurs prior to the date of initial acceptance into the program;

(B) the employee's ESI changes and, as a result, a new case review determines the case to no longer be cost-effective;

(C) the employee's or the family member's Medicaid eligibility changes or is denied;

(D) the employee is no longer employed, or the employee's ESI is terminated prior to the employee's renewal date in the HIPP program; or

(E) the employee has not provided required documentation in accordance with HIPP program timelines.

(8) The following documentation is required to be submitted by an individual at initial enrollment and annual re-enrollment in the HIPP program, unless there are no changes to the information provided at initial enrollment or an employer has submitted the information on behalf of the individual:

(A) ESI summary of benefits;

(B) ESI rate sheet; and

(C) ESI card.

(9) HHSC may request additional documentation if needed to establish eligibility in the HIPP program, such as:

(A) ESI explanation of benefits;

(B) proof of ESI payment (paycheck stub); or

(C) a signed HIPP program authorization form for HHSC to obtain ESI information on behalf of the individual.

(10) During enrollment or re-enrollment in the HIPP program, if HHSC determines that an ESI benefit plan costs more than Medicaid, HHSC may cover fewer family members in the HIPP program, if HHSC determines that covering fewer family members is cost-effective.

(d) Employer requirements.

(1) To be eligible for participation in the HIPP program, an insurance benefit plan offered to employees by the employer must:

(A) be able to cover family members eligible for Medicaid; and

(B) pay at least 60 percent of the costs for the following:

(i) doctor's visits;

(ii) prescriptions;

(iii) out-patient care;

(iv) lab tests or x-rays; and

(v) inpatient care.

(2) Upon receiving a signed HIPP program authorization form, or in response to a request directly from an employee, an employer must provide the requested ESI insurance benefits and coverage information to HHSC, or the employee, in a timely manner to prevent delays in the employee's enrollment in the HIPP program.

(3) As established under Texas Insurance Code §§1207.001 to 1207.004, upon written notification from HHSC that the employee is eligible for Medicaid, an employer must treat an employee's enrollment in the HIPP program as a qualifying event by allowing the employee to enroll in or dis-enroll from the employer's group health insurance plan at any time during the plan year.

(4) To prevent premium payment reimbursement delays during the HIPP program renewal period, an employer must provide to HHSC information reflecting any changes from the current year's ESI benefit plan to the new year's ESI benefit plan as soon as it is available during the open enrollment period or before an open enrollment period starts. The information must include:

(A) insurance company change;

(B) insurance rate sheet;

(C) summary of benefits; and

(D) any additional changes to the ESI benefit plan affecting employees.

(e) Premium Reimbursements.

(1) Payments made to reimburse an employee for the employee's portion of the ESI premium cannot begin until HHSC has received and validated all required and complete documentation for enrollment or re-enrollment in the HIPP program.

(2)Proof of insurance premium payment must be sent to HHSC each month before HHSC reimburses an employee for the employee's portion of the ESI premium.

(3) HHSC does not reimburse an employee for the employee's portion of the ESI premium for premium payments paid prior to the HIPP program eligibility start date.

(4) HHSC may reimburse an employee for the employee's portion of the ESI premium up to three months after the month the premium was paid for currently enrolled individuals; HHSC does not reimburse employees for proof of payments received after three months from the date the premium was paid.

(f) HHSC notifies Medicaid individuals in writing in the following circumstances:

(1) After review of a complete application, HHSC provides:

(A) eligibility approval for the HIPP program, including the premium reimbursement amount to be paid; or

(B) denial of eligibility for the HIPP program, including the reason for the denial.

(2) At yearly renewal or when the HIPP program has identified potential changes to an individual's ESI, family, or Medicaid status, HHSC provides a request for information.

(3)When HHSC has identified an overpayment, HHSC provides notice of the overpayment and repayment options.

(4) When HHSC receives notification that a HIPP program premium reimbursement was not received, HHSC provides a stop payment request which must be completed and returned to HHSC before HHSC issues a replacement check.

(g) Overpayments.

(1) HHSC recovers identified overpayments as a result of erroneous HIPP program reimbursements.

(2) HHSC notifies individuals in writing that a HIPP program overpayment has occurred.

(3) If the HIPP program overpayment is not refunded to HHSC prior to the next scheduled HIPP program reimbursement, HHSC automatically deducts the overpayment from the next scheduled HIPP program reimbursement and each month following until the overpayment has been fully refunded to HHSC.

(4) An individual enrolled in the HIPP program, or an employer with an employee enrolled in the HIPP program, must notify HHSC of any known HIPP program overpayments.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606477

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 462-6215


CHAPTER 355. REIMBURSEMENT RATES

The Texas Health and Human Services Commission (HHSC) proposes amendments to §355.7001, concerning Reimbursement Methodology for Telemedicine, Telehealth, and Home Telemonitoring Services; §355.8085, concerning Reimbursement Methodology for Physicians and Other Practitioners; and §355.8091, concerning Reimbursement to Licensed Professional Counselors, Licensed Master Social Worker-Advanced Clinical Practitioners, and Licensed Marriage and Family Therapists.

BACKGROUND AND JUSTIFICATION

The proposed amendments correct terminology, correct cross references to other sections of the Texas Administrative Code, correct cross references to statute, and make other non-substantive changes.

SECTION-BY-SECTION SUMMARY

Proposed §355.7001 updates cross references to other rules in subsections (b) and (c), and replaces parentheses with commas in subsection (c)(1).

Proposed §355.8085 updates cross references to other rules in subsections (g) and (i) and updates terminology in subsection (g).

Proposed §355.8091 updates terminology in both the title and the section, updates a cross reference to another rule, deletes cross references to rules that no longer exist, and spells out "percent" rather than using the symbol.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that for each year of the first five years the amended rules are in effect, there is no anticipated impact to costs and revenues of state and local government.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

HHSC has determined that there will be no adverse economic effect on small businesses or micro businesses to comply with the amended rules, as there is no requirement for any small businesses or micro businesses to alter current business practices as a result of the amended rules.

PUBLIC BENEFIT AND COST

Gary Jessee, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be rules that provide more accurate, updated information and cross references.

Ms. Rymal has also determined that there are no probable economic costs to persons required to comply with the amended rules.

HHSC has determined that the amended rules will not affect a local economy. There is no anticipated negative impact on local employment.

REGULATORY ANALYSIS

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Amy Chandler, Program Specialist, by mail to P.O. Box 13247, MC H600, Austin, TX, 78711; or by e-mail to amy.chandler@hhsc.state.tx.us within 30 days of publication of this proposal in the TexasRegister.

SUBCHAPTER G. ADVANCED TELECOMMUNICATIONS SERVICES AND OTHER COMMUNITY-BASED SERVICES

1 TAC §355.7001

STATUTORY AUTHORITY

These amendments are proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendments implement Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§355.7001.Reimbursement Methodology for Telemedicine, Telehealth, and Home Telemonitoring Services.

(a) Eligible providers performing telemedicine medical, telehealth, or home telemonitoring services are defined in §354.1430 of this title (relating to Definitions), §354.1432 of this title (relating to Telemedicine and Telehealth Benefits and Limitations), and §354.1434 of this title (relating to Home Telemonitoring Benefits and Limitations).

(b) The Health and Human Services Commission (HHSC) reimburses eligible distant site professionals providing telemedicine medical services as follows:

(1) Physicians are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8085 of this title (relating to Reimbursement Methodology for Physicians and Other Practitioners).

(2) Physician assistants are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8093 of this title (relating to Reimbursement Methodology for Physician Assistants).

(3) Advanced practice registered nurses are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8281 of this title (relating to Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists).

(4) Certified nurse midwives are reimbursed for their Medicaid telemedicine medical services in the same manner as their other professional services in accordance with §355.8161 of this title (relating to Reimbursement Methodology for Midwife Services).

(c) HHSC reimburses eligible distant site professionals providing telehealth services as follows:

(1) Licensed professional counselors, [(]including licensed marriage and family therapists,[)] and licensed clinical social workers (including Comprehensive Care Program social workers) are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8091 of this title (relating to Reimbursement to Licensed Professional Counselors, Licensed Clinical Social Workers [Licensed Master Social Worker-Advanced Clinical Practitioners], and Licensed Marriage and Family Therapists).

(2) Licensed psychologists (including licensed psychological associates) and psychology groups are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8085 of this title [(relating to Reimbursement Methodology for Physicians and Other Practitioners)].

(3) Durable medical equipment suppliers are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8021 of this title (relating to Reimbursement Methodology for Home Health Services and Durable Medical Equipment, Prosthetics, Orthotics and Supplies).

(d) Telemedicine and telehealth patient site locations, as defined in §354.1430 and §354.1432 of this title, are reimbursed a facility fee determined by HHSC.

(e) HHSC reimburses eligible providers performing home telemonitoring services in the same manner as their other professional services described in §355.8021 of this title.

(f) Telemedicine medical services provided in a school-based setting by a physician, even if the physician is not the patient's primary care physician, will be reimbursed in accordance with the applicable methodologies described in subsection (b)(1) of this section and §355.8443 of this title (relating to Reimbursement Methodology for School Health and Related Services (SHARS)) if the following conditions are met:

(1) the physician is an authorized health care provider under Medicaid;

(2) the patient is a child who receives the service in a primary or secondary school-based setting;

(3) the parent or legal guardian of the patient provides consent before the service is provided; and

(4) a health professional as defined by Government Code §531.0217(a)(1) is present with the patient during the treatment.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606491

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 487-3419


SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 5. GENERAL ADMINISTRATION

1 TAC §355.8085, §355.8091

STATUTORY AUTHORITY

These amendments are proposed 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 medical assistance (Medicaid) program in Texas.

The proposed amendments implement Texas Human Resources Code, Chapter 32, and Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§355.8085.Reimbursement Methodology for Physicians and Other Practitioners.

(a) Introduction. This section describes the Texas Medicaid reimbursement methodology that the Health and Human Services Commission (HHSC) uses to calculate payment for covered services provided by physicians and other practitioners. The reimbursement methodology facilitates a prospective payment system that is based on HHSC's determination of the adequacy of access to care.

(1) There is no geographical or specialty reimbursement differential for individual services.

(2) HHSC reviews the fees for individual services at least every two years based upon either:

(A) historical payments, with adjustments, to ensure adequate access to appropriate health care services; or

(B) actual resources required by an economically efficient provider to provide each individual service.

(3) The fees for individual services and adjustments to the fees must be made within available funding.

(b) Eligibility. Eligible providers include:

(1) Providers of Laboratory and X-ray Services;

(2) Providers of Radiation Therapy;

(3) Physical, Occupational, and Speech Therapists;

(4) Physicians;

(5) Podiatrists;

(6) Chiropractors;

(7) Optometrists;

(8) Dentists;

(9) Psychologists;

(10) Licensed Psychological Associates;

(11) Provisionally Licensed Psychologists;

(12) Maternity clinics; and

(13) Tuberculosis clinics.

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

(1) Access-based fees (ABF)--Fees for individual services, where HHSC deems necessary, to account for deficiencies relating to the adequacy of access to health care services.

(2) Biological--A substance that is made from a living organism or its products and is used in the prevention, diagnosis, or treatment of cancer and other diseases.

(3) Conversion factor--The dollar amount by which the sum of the three cost component relative value units (RVUs) is multiplied to obtain a reimbursement fee for each individual service.

(4) Drug--Any substance, that is used to prevent, diagnose, treat or relieve symptoms of a disease or abnormal condition.

(5) HHSC--The Health or Human Services Commission or its designee.

(6) Relative value units (RVUs)--The relative value assigned to each of the three individual components that comprise the cost of providing individual Medicaid services. The three cost components of each reimbursement fee are intended to reflect the work, overhead, and professional liability expense required to provide each individual service.

(7) Resource-based fees (RBF)--Fees for individual services based upon HHSC's determination of the resources that an economically efficient provider requires to provide individual services.

(8) Vaccine--An immunogen, the administration of which is intended to stimulate the immune system to result in the prevention, amelioration or therapy of any disease or infection.

(d) Calculating the payment amounts. Subject to qualifications, limitations, and exclusions as provided in this chapter, payment to eligible providers must not exceed the lesser of the provider's billed amount or the amount derived from the methodology described in this section. The fee schedule that results from the reimbursement methodology may be composed of both the access-based fees (ABFs) and the resource-based fees (RBFs).

(1) Access-based fee (ABF) methodology allows the state to:

(A) reimburse for procedure codes not covered by Medicare;

(B) account for inadequate reimbursement rates for particularly difficult procedures;

(C) encourage participation in the Medicaid program by physicians and other practitioners; and

(D) set reimbursement to allow eligible Medicaid population to receive adequate health care services in an appropriate setting.

(2) An RBF is calculated using the following formula: RBF = (total RVU * CF), where RBF = Resource-Based Fee, total RVU = the sum of the three Relative Value Units that comprise the cost of providing individual Medicaid services, and CF = Conversion Factor.

(A) Except as otherwise specified, HHSC bases the RVUs that are employed in the Texas Medicaid reimbursement methodology upon the RVUs of the individual services as specified in the Medicare Fee Schedule. HHSC reviews any changes to, or revisions of, the various Medicare RVUs and, if applicable, adopts the changes as part of the reimbursement methodology within available funding.

(B) HHSC may develop and apply multiple conversion factors for various classes of service, such as obstetrics, pediatrics, general surgeries, and/or primary care services.

(C) If funding is available and adjustments are made to the conversion factor(s), the adjustments may be based upon inflation, access, or both.

(i) To account for general inflation, HHSC adjusts the conversion factor by the forecasted rate of change of a specific inflation factor appropriate to physician or other professional services, the Personal Consumption Expenditures (PCE) chain-type price index, or some percentage thereof. To inflate the conversion factor for the prospective period, HHSC uses the lowest feasible inflation factor forecast that is consistent with the forecasts of nationally recognized sources available to HHSC at the time of preparation of the conversion factor(s).

(ii) Adjustments to the conversion factor may also be made to ensure adequacy of access as described in paragraph (1) of this subsection.

(e) Reimbursement for physician-administered drugs, vaccines, and biologicals. In determining the reimbursement methodology for physician-administered drugs, vaccines, and biologicals, HHSC may consider information such as costs, utilization, data sufficiency, and public input. Reimbursement for physician-administered drugs, vaccines, and biologicals are based on the lesser of the billed amount, a percentage of the Medicare rate, or one of the following methodologies:

(1) If the drug or biological is considered a new drug or biological (that is, approved for marketing by the Food and Drug Administration within 12 months of implementation as a benefit of Texas Medicaid), it may be reimbursed at an amount equal to 89.5 percent of average wholesale price (AWP).

(2) If the drug or biological does not meet the definition of a new drug or biological, it may be reimbursed at an amount equal to 85 percent of AWP.

(3) Vaccines may be reimbursed at an amount equal to 89.5 percent of AWP.

(4) Infusion drugs furnished through an item of implanted Durable Medical Equipment may be reimbursed at an amount equal to 89.5 percent of AWP.

(5) Drugs, other than vaccines and infusion drugs, may be reimbursed at an amount equal to 106 percent of the average sales price (ASP).

(6) HHSC may use other data sources to determine Medicaid fees for physician-administered drugs, vaccines, and biologicals when HHSC determines that the above methodologies are unreasonable or insufficient.

(f) Reimbursement for services provided under the supervision of a licensed psychologist. Reimbursement for services provided under the supervision of a licensed psychologist by a licensed psychological associate (LPA) or a provisionally licensed psychologist (PLP) is reimbursed to the licensed psychologist at 70 percent of the fee paid to the licensed psychologist for the same service.

(g) Reimbursement for certain other providers. The descriptions for reimbursement of certain other providers are described in sections of this chapter.

(1) Reimbursement for physician assistants is described in §355.8093 of this title (relating to Reimbursement Methodology for Physician Assistants).

(2) Reimbursement for nurse practitioners and clinical nurse specialists is described in §355.8281 of this title (relating to Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists).

(3) Reimbursement for services provided under Early and Periodic Screening, Diagnosis and Treatment (EPSDT) is described in §355.8441 of this title (relating to Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services).

(4) Reimbursement for Licensed Professional Counselors, Licensed Clinical Social Workers [Licensed Master Social Worker-Advanced Clinical Practitioners], and Licensed Marriage and Family Therapists is described in §355.8091 of this title (relating to Reimbursement to Licensed Professional Counselors, Licensed Clinical Social Workers [Licensed Master Social Worker-Advanced Clinical Practitioners], and Licensed Marriage and Family Therapists).

(h) Temporary enhanced reimbursement for certain specialists. Notwithstanding any contrary provisions, a physician specializing in family medicine, general internal medicine, or pediatric medicine, who meets the self-attestation criteria, will receive enhanced payments for certain evaluation and management services and vaccine administration services performed from January 1, 2013, through December 31, 2014, in compliance with federal legislation enacted by the Patient Protection and Affordable Care Act.

(i) When determining payment rates for providers reimbursed at a percentage of the rate paid to a physician (M.D. or D.O.) for the evaluation and management services and vaccine administration services impacted by subsection (e) of this section, the base rate to which the percentage is applied is the applicable rate in effect on December 31, 2012. Provider types with rates governed by this subsection include physician assistants, certified nurse midwives, nurse practitioners, and clinical nurse specialists, as outlined in §§355.8093, 355.8161, and 355.8281 of this title (relating to Reimbursement Methodology for Physician Assistants; Reimbursement Methodology for Midwife Services; and Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists). These provider types are eligible for the applicable percentage of the enhanced payment described in subsection (h) of this section when billing under the direct supervision of an eligible provider as specified in subsection (h) of this section.

§355.8091.Reimbursement to Licensed Professional Counselors, Licensed Clinical Social Workers [Licensed Master Social Worker-Advanced Clinical Practitioners], and Licensed Marriage and Family Therapists.

Counseling services provided by a licensed professional counselor, a licensed clinical social worker [licensed master social worker-advanced clinical practitioner], or a licensed marriage and family therapist in compliance with applicable professional licensing laws and regulations [under 25 TAC, §29.3001 (relating to Benefits and Limitations) and §29.3002 (relating to Conditions for Participation)] are reimbursed at 70 percent [70%] of the existing fee for similar services provided by psychiatrists and psychologists as described in §355.8085 of this title (relating to Reimbursement Methodology for Physicians and Other Practitioners [Texas Medicaid Reimbursement Methodology (TMRM)]).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606493

Carey Smith

Senior Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 487-3419


CHAPTER 377. CHILDREN'S ADVOCACY PROGRAMS

The Texas Health and Human Services Commission (HHSC) proposes new Chapter 377, concerning Children's Advocacy Programs. HHSC proposes new Subchapter A, §377.1, concerning General Provisions; Subchapter B, §§377.101, 377.103, 377.105, 377.107, 377.109, 377.111, 377.113, 377.115 and 377.117, concerning Standards of Operation for Local Court-Appointed Volunteer Advocate Programs; and Subchapter C, §§377.201, 377.203, 377.205, 377.207, 377.209, and §377.211, concerning, Standards of Operation for Local Children's Advocacy Centers.

Background and Justification

Senate Bill 354, 84th Legislature, Regular Session, 2015, amends Texas Family Code Chapter 264, Subchapters E and G, to transfer the authority to contract with statewide support organizations for child advocacy centers and volunteer advocate programs from the Office of the Attorney General to HHSC. The transfer became effective September 1, 2015.

The proposed rules provide standards and procedures regarding the function and administration of local programs; and provide procedures and guidance in the application for, awarding of, and performance standards required for contracts between the statewide organization and the local programs.

HHSC intends these rules to replace the rules currently found at 1 Texas Administrative Code, Chapter 64 (relating to Standards of Operation for Local Court-Appointed Volunteer Advocate Programs) and Chapter 65 (relating to Standards of Operation for Local Children's Advocacy Centers), which provide for the Office of Attorney General's administration of the local court-appointed volunteer advocate programs and local children's advocacy center standards.

Section-by-Section Summary

Proposed §377.1, Definitions, defines general terms used throughout the chapter.

Proposed §377.101, Purpose and Definitions, describes the purpose of proposed Subchapter B and defines terms specific to the subchapter.

Proposed §377.103, Legal Authorization, provides the relevant sections of the Texas Family Code under which Subchapter B is promulgated.

Proposed §377.105, Applicability, states that subchapter B applies to local volunteer advocate programs and contracts for services with local volunteer advocate programs as specified in Texas Family Code Chapter 264, Subchapter G.

Proposed §377.107, Contract with Statewide Volunteer Advocate Organization, describes the requirements of the statewide volunteer advocate organization with which HHSC contracts.

Proposed §377.109, Contracts with Local Volunteer Advocate Programs, describes the requirements for contracts between the local volunteer advocate programs and the statewide volunteer advocate organization.

Proposed §377.111, Scale of State Financial Support, describes the financial support HHSC provides to local volunteer advocate programs.

Proposed §377.113, Local Volunteer Advocate Program Administration, describes a variety of administrative requirements for local volunteer advocate programs.

Proposed §377.115, Local Volunteer Advocate Program Personnel, describes the personnel requirements for local volunteer advocate programs, including volunteers, employees, and members of the board of directors.

Proposed §377.117, Local Volunteer Advocate Program Personnel Background Checks, describes the background check requirements for volunteers, employees, and members of the board of directors for local volunteer advocate programs.

Proposed §377.201, Purpose and Definitions, describes the purpose of proposed Subchapter C and defines terms specific to the subchapter.

Proposed §377.203, Legal Authorization, provides the relevant sections of the Texas Family Code under which Subchapter C is promulgated.

Proposed §377.205, Applicability, states that subchapter C applies to local children's advocacy centers and contracts for services with local children's advocacy centers as specified in Texas Family Code Chapter 264, Subchapter E.

Proposed §377.207, Contract with Statewide Children's Advocacy Center Organization, describes the requirements of the statewide children's advocacy center organization with which HHSC contracts.

Proposed §377.209, Contracts with Local Children's Advocacy Centers, describes the requirements of the local children's advocacy centers with which the statewide children's advocacy center organization contracts.

Proposed §377.211, Operation of Local Children's Advocacy Center and Program, lists requirements for a local children's advocacy center.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the new rules are in effect, there will be no fiscal impact to costs and revenues of state and local governments.

Small BUSINESS and Micro-business Impact Analysis

HHSC has determined that there is no anticipated adverse economic effect for small businesses or micro-businesses to comply with the proposed rules, as there no requirements to alter current business practices as a result of the proposed rules.

Public Benefit and Costs

Gary Jessee, Deputy Executive Commissioner, has determined that for each year of the first five years the rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be the support provided to children's advocacy programs for the protection of abused and neglected children throughout Texas.

Ms. Rymal has also determined there are no anticipated economic costs to persons who are required to comply with the proposed rules.

HHSC anticipates the rule will not affect a local economy and anticipates no adverse impact on local employment.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposal may be submitted to Raman Sandhu, Contracts Administrator Texas CASA/CACTX Program, 909 W. 45th St., Bldg. 555, Austin, Texas 78751; by fax to (512) 206-5812, or by e-mail to raman.sandhu@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §377.1

STATUTORY AUTHORITY

The new rule is proposed under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410, which requires HHSC to adopt standards for eligible local children's advocacy centers; §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and §264.609, which authorizes HHSC's Executive Director to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

No other statutes, articles or codes are affected by the proposal.

§377.1.Definitions.

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

(1) Child--An abused or neglected individual who is under the control or supervision of the Texas Department of Family and Protective Services and who is the subject of a suit affecting the parent-child relationship filed by a governmental entity.

(2) Court--The district court, juvenile court having the same jurisdiction as a district court, or other court expressly given jurisdiction of a suit affecting the parent-child relationship.

(3) DFPS--The Texas Department of Family and Protective Services or its designee.

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

(5) Participating agency or entity/public agency partner--A governmental entity that:

(A) is involved in child abuse investigations or prosecutions and offers services to child abuse victims; and

(B) participates in establishing and operating a local children's advocacy center as provided in Texas Family Code §264.403.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606552

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 424-6900


SUBCHAPTER B. STANDARDS OF OPERATION FOR LOCAL COURT-APPOINTED VOLUNTEER ADVOCATE PROGRAMS

1 TAC §§377.101, 377.103, 377.105, 377.107, 377.109, 377.111, 377.113, 377.115, 377.117

STATUTORY AUTHORITY

The new rules are proposed under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410, which requires HHSC to adopt standards for eligible local children's advocacy centers; §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and §264.609, which authorizes HHSC's Executive Director to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

No other statutes articles or codes are affected by the proposal.

§377.101.Purpose and Definitions.

(a) The purpose of this subchapter is to provide:

(1) requirements regarding the function and administration of a local volunteer advocate program; and

(2) requirements for contracts between the statewide volunteer advocate organization and the local volunteer advocate programs.

(b) The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:

(1) Local volunteer advocate program--A volunteer-based, nonprofit program that provides advocacy services to abused or neglected children with the goal of obtaining a permanent placement for a child that is in the child's best interest.

(2) Statewide volunteer advocate organization--The entity with which HHSC contracts under Texas Family Code §264.603 and §377.107 of this subchapter (relating to Contract with Statewide Volunteer Advocate Organization).

§377.103.Legal Authorization.

The provisions of this subchapter are promulgated under Texas Family Code §264.602(c) and (d) and §264.609, which authorize HHSC to adopt standards for local volunteer advocate programs, develop a scale of financial support for the local volunteer advocate programs, and adopt rules necessary to carry out the provisions of the Texas Family Code.

§377.105.Applicability.

This subchapter applies to local volunteer advocate programs and contracts for services with local volunteer advocate programs as specified in Texas Family Code Chapter 264, Subchapter G.

§377.107.Contract with Statewide Volunteer Advocate Organization.

(a) HHSC contracts with a single statewide volunteer advocate organization that satisfies subsection (b) of this section to perform the following functions for local volunteer advocate programs:

(1) training;

(2) technical assistance; and

(3) evaluation services for the benefit of the local volunteer advocate programs.

(b) HHSC may contract only with a statewide volunteer advocate organization that:

(1) is exempt from federal income taxation under Internal Revenue Code of 1986 §501(a) and (c)(3);

(2) is designated as a supporting organization under Internal Revenue Code of 1986 §509(a)(3); and

(3) is composed of individuals or groups of individuals who have expertise in the dynamics of child abuse and neglect and experience in operating local volunteer advocate programs.

(c) The contract must:

(1) include measurable goals and objectives relating to the number of:

(A) volunteer advocates in the program; and

(B) children receiving services from the program; and

(2) follow practices to ensure compliance with standards referenced in the contract.

§377.109.Contracts with Local Volunteer Advocate Programs.

(a) The statewide volunteer advocate organization with which HHSC contracts under §377.107 of this subchapter (relating to Contract with Statewide Local Volunteer Advocate Organization) contracts with local volunteer advocate programs.

(b) Eligibility Requirements for a Local Volunteer Advocate Program.

(1) To be eligible for a contract with the statewide volunteer advocate organization under Texas Family Code §264.602, a local volunteer advocate program must:

(A) operate under the auspices of state or county government or be incorporated as part of a nonprofit organization;

(B) use individuals appointed as volunteer advocates or guardians ad litem by the court to provide for the needs of abused or neglected children;

(C) demonstrate that it has provided court-appointed advocacy services for at least six months;

(D) provide court-appointed advocacy services for at least ten children each month; and

(E) demonstrate that it has local judicial support.

(2) Local judicial support may be demonstrated by a signed written agreement between the local volunteer advocate program and the court with appropriate jurisdiction that defines the working relationship.

(3) The statewide volunteer advocate organization may not contract with a person that is not eligible under this section. However, the statewide volunteer advocate organization may waive the requirement in paragraph (1)(C) of this subsection for an established program in a rural area or under other special circumstances.

(c) The statewide volunteer advocate organization must consider the following in awarding a contract to a local volunteer advocate program:

(1) the local volunteer advocate program's eligibility for, and use of, funds from local, state, or federal governmental sources, philanthropic organizations, and other sources;

(2) community support for the local volunteer advocate program as indicated by financial contributions from civic organizations, individuals, and other community resources;

(3) whether the local volunteer advocate program provides services that encourage the permanent placement of children through reunification with their families or timely placement with adoptive families; and

(4) whether the local court system endorses and cooperates with the local volunteer advocate program.

(d) Contract Requirements.

(1) A contract between the statewide volunteer advocate organization and a local volunteer advocate program must require the local volunteer advocate program to:

(A) submit quarterly and annual financial reports to the statewide volunteer advocate organization, as determined by HHSC;

(B) submit quarterly and annual reports of performance factors as identified by HHSC and submit such reports to the statewide volunteer advocate organization by the deadlines designated by the statewide volunteer advocate organization;

(C) obtain annual independent financial audits or audited financial statements as required by state or federal law and provide copies of the auditor's reports and related documents in accordance with the deadlines designated by the statewide volunteer advocate organization;

(D) cooperate with inspections and audits that HHSC makes to ensure service standards and fiscal responsibility; and

(E) provide, at a minimum:

(i) independent and factual information regarding the child in writing to the court and to counsel for the parties involved;

(ii) advocacy through the courts for permanent home placement and services for the child;

(iii) monitoring of the child to ensure the child's safety and to prevent unnecessarily moving the child to multiple temporary placements;

(iv) reports in writing to the presiding judge and to counsel for the parties involved;

(v) community education relating to child abuse and neglect;

(vi) referral services to existing community services;

(vii) procedures to assure the confidentiality of records or information relating to the child;

(viii) a volunteer recruitment and training program, including adequate screening procedures for volunteers; and

(ix) compliance with the standards adopted under Texas Family Code §264.602.

(2) A contract between the statewide volunteer advocate organization and a local volunteer advocate program is enforced through the use of the remedies and in accordance with the procedures provided in the Uniform Grant Management Standards for Texas (UGMS).

(3) A local volunteer advocate program must comply with the requirements and provisions of the contract between the statewide volunteer advocate organization and HHSC.

§377.111.Scale of State Financial Support.

(a) The statewide volunteer advocate organization must contract for services with eligible local volunteer advocate programs to expand the existing services of the local volunteer advocate programs. No contract may result in reducing the financial support that a local volunteer advocate program receives from another source.

(b) In accordance with Texas Family Code §264.602(c), the annual percentage of state financial support for a local volunteer advocate program will decline each year over a six-year period as reflected in the schedule below. The reimbursement by HHSC of expenses for a particular local volunteer advocate program incurred in any given year must not exceed the following percentage of total support needs of the local volunteer advocate program for that year, beginning on the effective date of the contract between the local volunteer advocate program and the statewide volunteer advocate organization.

Figure: 1 TAC §377.111(b) (.pdf)

§377.113.Local Volunteer Advocate Program Administration.

(a) Required Written Documents. A local volunteer advocate program must have in writing:

(1) a mission and purpose statement approved by the statewide volunteer advocate organization;

(2) the local volunteer advocate program's goals and objectives, with an action plan and timeline for meeting those goals and objectives;

(3) a method for evaluating the progress of accomplishing the local volunteer advocate program's goals and objectives;

(4) a funding plan based on the local volunteer advocate program's goals and objectives;

(5) personnel policies and procedures;

(6) job descriptions for employees, directors, and volunteers;

(7) procedures for volunteer recruiting, screening, training, and appointment to cases;

(8) policies for support and supervision of volunteers;

(9) a grievance procedure for employees, volunteers, and clients;

(10) a media/crisis communication plan;

(11) a fidelity bond;

(12) accounting procedures;

(13) a weapons prohibition policy approved by the statewide volunteer advocate organization; and

(14) a memorandum of understanding between DFPS and the local volunteer advocate program that defines the working relationship between the local volunteer advocate program and DFPS.

(b) Personnel.

(1) A local volunteer advocate program must have a maximum volunteer-to-supervisor ratio of 30:1 and a maximum case-to-supervisor ratio of 45:1.

(2) A local volunteer advocate program must endeavor to provide equal employment opportunity regardless of race, color, religion, national origin, age, sex (including pregnancy), disability, or other status protected by law and must comply with all applicable laws and regulations regarding employment.

(3) A local volunteer advocate program must endeavor to be an inclusive organization whose employees, volunteers, and directors reflect the diversity of the children and community it serves in terms of gender, ethnicity, and cultural and socio-economic backgrounds.

(c) Conduct.

(1) All volunteers, employees, and directors must conduct themselves in a professional manner.

(2) Volunteers, employees, and directors may not discriminate against any individual on the grounds of race, color, national origin, religion, sex (including pregnancy), age, disability, or other legally protected characteristics.

(3) A local volunteer advocate program may not retain a volunteer, employee, or director who does not conduct him- or herself in accordance with the policies of the local volunteer advocate program or who has abused or neglected a position of trust.

(d) Confidentiality.

(1) Each local program must instruct volunteers, employees, and directors on what constitutes confidential information.

(2) A volunteer, employee, or director may not communicate any confidential information about an individual being served by a local volunteer advocate program to a person who is not authorized to know the confidential information.

(e) Conflicts of Interest. Each local volunteer advocate program must have a written conflict-of-interest policy that:

(1) prohibits any personal, business, or financial interest that renders a volunteer, employee, or director unable or potentially unable to perform the duties and responsibilities assigned to that volunteer, employee, or director in an efficient and impartial manner; and

(2) prohibits a volunteer, employee, or director from using the position for private gain or acting in a manner that creates the appearance of impropriety.

(f) Liability.

(1) A person is not liable for civil damages for a recommendation made or an opinion rendered in good faith while acting in the official scope of the person's duties as a board member, staff member, or volunteer of a local volunteer advocate program.

(2) Neither HHSC nor the statewide volunteer advocate organization will be liable for the actions of local volunteer advocate program volunteers, employees, or directors. Volunteers, employees, and directors of local volunteer advocate programs must abide by the conduct, confidentiality, and conflict-of-interest requirements outlined in this section and all other laws and regulations governing their conduct and activities.

§377.115.Local Volunteer Advocate Program Personnel.

(a) Application Process.

(1) Prospective volunteers, employees, and directors must complete:

(A) a written application;

(B) personal interview(s); and

(C) consent and release forms for appropriate background investigations.

(2) Prospective employees must also complete employee handbook acknowledgment forms.

(b) Volunteers.

(1) A volunteer must be at least 21 years of age.

(2) A volunteer may:

(A) review applicable records;

(B) facilitate prompt and thorough review of a case;

(C) interview appropriate parties in order to make recommendations regarding the child's best interests;

(D) attend court hearings; and

(E) make written recommendations to the court concerning the outcome that would be in the child's best interest.

(3) A volunteer may not:

(A) take a child home for any period of time;

(B) give legal advice or therapeutic counseling;

(C) make placement arrangements for a child;

(D) give or lend money or expensive gifts to a child or family;

(E) take a child on an overnight outing; or

(F) allow a child to come into contact with someone the volunteer knows or should know has a criminal history involving violence, child abuse, neglect, drugs, or a sex-related offense.

(4) A volunteer may, on an individual case basis, get written permission from the local volunteer advocate program for an exception to an action listed under paragraph (3) of this subsection. If a request for an exception is made, a volunteer must disclose if anyone who resides with the volunteer, or that the child might come in contact with through the volunteer, does not meet the background requirements of §377.117 of this subchapter (relating to Local Volunteer Advocate Program Personnel Background Checks). The reason(s) for granting or not granting an exception must be documented in the child's case file.

(5) A volunteer must not be assigned to more than two cases simultaneously, unless the assignment is approved by the local volunteer advocate program's executive director or caseworker supervisor.

(6) A volunteer must not provide foster care to a child in the managing conservatorship of DFPS unless the volunteer is related to the child. This prohibition does not apply to:

(A) a volunteer with whom DFPS placed a child prior to June 30, 1999; or

(B) a volunteer with whom a child has been placed by an agency or person other than DFPS and the child is not in the managing conservatorship of DFPS.

(7) A volunteer may not be assigned to any case in which the volunteer is related to any party.

(c) Employees.

(1) An employee must be at least 21 years of age.

(2) If an employee also serves on the board of directors, he or she may not be a voting director.

(d) Board of Directors.

(1) The board of directors must have at least nine members, with an executive committee composed of, at a minimum, the offices of president, vice president, secretary, and treasurer.

(2) The bylaws of the local volunteer advocate program must include a rotation of directors for the board, as well as term limits for directors and executive committee officers.

(3) A director must be at least 21 years of age.

(4) At least one director from the board must attend annual training provided by the statewide volunteer advocate organization or a national association.

(e) Training.

(1) A local volunteer advocate program must plan and implement a training and development program for employees and volunteers and must inform employees and volunteers about:

(A) the background and needs of children served by the local volunteer advocate program;

(B) the operation of the court and the child welfare system; and

(C) the nature and effect of child abuse and neglect.

(2) A local volunteer advocate program must provide annual orientation for new directors and ongoing education for incumbent directors, which must include information on:

(A) the applicable goals, objectives, and methods of operation of the local volunteer advocate program;

(B) current local, statewide and national association services;

(C) the court and child welfare system; and

(D) program governance.

(3) The training program must consist of at least 30 hours of pre-service training and 12 hours of in-service training per year.

(4) The program must provide cultural diversity training for volunteers, employees, and directors on an annual basis.

(5) The statewide volunteer advocate organization may review all training and training materials for volunteers, employees, and directors.

§377.117.Local Volunteer Advocate Program Personnel Background Checks.

(a) Conducting a background check.

(1) A volunteer, employee, or director must be subject to a background check before beginning volunteer, employee, or director duties and every two years thereafter that includes a review of the individual's information from:

(A) a fingerprint-based search conducted by the Texas Department of Public Safety;

(B) a fingerprint-based search conducted by the Federal Bureau of Investigations;

(C) the Texas Public Sex Offender Registry maintained by the Texas Department of Public Safety;

(D) the National Sex Offender Public Website maintained by the United States Department of Justice; and

(E) the Child Abuse and Neglect Central Registry maintained by DFPS in accordance with federal law and Texas Family Code §261.002.

(2) If a volunteer, employee, or director has lived in a state other than Texas within the last seven years, the local volunteer advocate program must conduct a criminal background check in that state.

(3) Positions involving driving require:

(A) investigation of the individual's driving record and insurability; and

(B) documentation of a current license and satisfactory personal liability insurance.

(b) Ten-year bar for certain felony offenses.

(1) An individual whose background check produces a conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication that includes any grade of felony, for which fewer than ten years have passed from the date of the offense, is barred from being a volunteer, employee, or director.

(2) An individual whose background check produces a conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication that includes any grade of felony, for which ten years or more have passed from the date of the offense, and the offense is not described under subsection (c) of this section, may be reviewed by the local volunteer advocate program to determine eligibility for a volunteer, employee, or director position.

(c) Bar for certain offenses.

(1) An individual whose background check produces a conviction, guilty plea, plea of no contest, acceptance of deferred adjudication, or pending charge is barred from being a volunteer, employee, or director if the charge is any level of offense under:

(A) Texas Penal Code Chapter 19;

(B) Texas Penal Code Chapter 20;

(C) Texas Penal Code Chapter 20A;

(D) Texas Penal Code §§21.02, 21.07, 21.08, 21.11, or 21.12;

(E) Texas Penal Code §§22.011, 22.02, 22.021, 22.04, 22.041, 22.05, 22.07, or 22.11;

(F) Texas Penal Code Chapter 25;

(G) Texas Penal Code §28.02;

(H) Texas Penal Code Chapter 29;

(I) Texas Penal Code §30.02;

(J) Texas Penal Code §33.021;

(K) Texas Penal Code §42.072;

(L) Texas Penal Code Chapter 43;

(M) Texas Penal Code §§46.06, 46.09, or 46.10;

(N) Texas Penal Code §§48.02;

(O) Texas Penal Code §§49.045, 49.05, 49.07, or 49.08;

(P) Texas Penal Code Chapter 71; or

(Q) any other charge involving violence, child abuse or neglect, assault with family violence, or a sex-related offense.

(2) An individual whose background check produces a history of founded allegations of abuse with DFPS is barred from being a volunteer, employee, or director.

(d) An individual whose background check produces a conviction, guilty plea, plea of no contest, or acceptance of deferred adjudication of an offense, including a misdemeanor drug-related offense, that is not an offense described under subsections (b) or (c) of this section may be considered by the local volunteer advocate program to determine eligibility for a volunteer, employee, or director position.

(e) If an individual who has applied to be a volunteer, employee, or director has a pending charge described under subsections (b) or (c) of this section, a new review of the applicant may be made if the charge is dismissed or a finding of not guilty or other determination of innocence is entered.

(f) An individual whose background check produces information that includes a group of offenses or information that, if considered separately, would not bar an applicant may result in the disqualification of an applicant volunteer, employee, or director if it is determined that the offenses constitute a problematic pattern.

(g) A volunteer, employee, or director must be barred immediately, removed from his or her position and barred from being considered in the future as a volunteer, employee, or director if the volunteer, employee, or director knowingly or intentionally places a child, through the actions of the volunteer, employee, or director, in contact with a person whose criminal history involves an offense described under subsections (b) or (c) of this section.

(h) The refusal to execute consent and release forms necessary to conduct a criminal background check disqualifies an individual from serving as a volunteer, employee, or director.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606553

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 424-6900


SUBCHAPTER C. STANDARDS OF OPERATION FOR LOCAL CHILDREN'S ADVOCACY CENTERS

1 TAC §§377.201, 377.203, 377.205, 377.207, 377.209, 377.211

STATUTORY AUTHORITY

The new rules are proposed under Texas Government Code §531.0055(e) and §531.033, which provide HHSC's Executive Commissioner with general authority to adopt rules; Texas Family Code §264.410, which requires HHSC to adopt standards for eligible local children's advocacy centers; §264.602(d), which requires HHSC to adopt, by rule, standards for local volunteer advocate programs; and §264.609, which authorizes HHSC's Executive Director to adopt rule necessary to implement Chapter 264, Subchapter G ("Court-Appointed Volunteer Advocate Programs").

No other statutes articles or codes are affected by the proposal.

§377.201.Purpose and Definitions.

(a) The purpose of this subchapter is to provide:

(1) requirements regarding the function and administration of a local children's advocacy center program; and

(2) requirements for contracts between the statewide children's advocacy center organization and the local children's advocacy centers.

(b) The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise:

(1) Local children's advocacy center --An entity that is established in accordance with a memorandum of understanding executed under Texas Family Code §264.403 and that operates local children's advocacy center programs.

(2) Local children's advocacy center program--A local program that assesses victims of child abuse or neglect to determine needed services, provides the needed services, provides a facility at which a multidisciplinary team can meet to facilitate the disposition of child abuse cases, and/or coordinates the activities of governmental entities in relation to child abuse investigations and delivery of services.

(3) Multidisciplinary team--A team of individuals composed in accordance with Texas Family Code §264.406 that works within a local children's advocacy center to review new and pending child abuse cases for the purpose of coordinating the activities of entities involved in child abuse investigation, prosecution, and victim services.

(4) Statewide children's advocacy center organization--The entity with which HHSC contracts under Texas Family Code §264.409 and §377.207 of this subchapter (relating to Contract with Statewide Children's Advocacy Center Organization).

§377.203.Legal Authorization.

The provisions of this subchapter are promulgated under the Texas Family Code §264.410(c), which authorizes HHSC to adopt standards for local children's advocacy center programs and to adopt rules necessary to carry out the provisions of Texas Family Code Chapter 264, Subchapter E.

§377.205.Applicability.

This subchapter applies to local children's advocacy centers and contracts for services with local children's advocacy centers, as specified in Texas Family Code Chapter 264, Subchapter E.

§377.207.Contract with Statewide Children's Advocacy Center Organization.

(a) HHSC contracts with a single statewide children's advocacy center organization that satisfies subsection (b) of this section to perform the following functions for local children's advocacy center programs:

(1) training;

(2) technical assistance;

(3) evaluation services; and

(4) funds administration.

(b) HHSC may contract only with a statewide children's advocacy center organization that:

(1) is exempt from federal income taxation under Internal Revenue Code of 1986 §501(a) and (3);

(2) is designated as a supporting organization under Internal Revenue Code of 1986 §509(a)(3); and

(3) is composed of individuals or groups of individuals who have expertise in establishing and operating children's advocacy center programs.

(c) The contract must limit the statewide children's advocacy center organization's annual spending for the performance of duties under Texas Family Code §264.409(a) to no more than 12 percent of the annual amount appropriated to HHSC for the purposes of the local children's advocacy center programs.

§377.209.Contracts with Local Children's Advocacy Centers.

(a) The statewide children's advocacy center organization with which HHSC contracts under §377.207 of this subchapter (relating to Contract with Statewide Children's Advocacy Center Organization) contracts with local children's advocacy centers.

(b) Eligibility of a Local Children's Advocacy Center to Contract with the Statewide Organization.

(1) To be eligible to contract with the statewide organization under Texas Family Code §264.410, a local children's advocacy center must:

(A) have a signed memorandum of understanding as provided by Texas Family Code §264.403;

(B) operate under the authority of a governing board as provided by Texas Family Code §264.404;

(C) have a multidisciplinary team of persons involved in the investigation or prosecution of child abuse cases or the delivery of services as provided by Texas Family Code §264.406;

(D) hold regularly scheduled case reviews as provided by Texas Family Code §264.406;

(E) operate in a neutral and physically separate space from the day-to-day operations of any public agency partner;

(F) have developed a method of statistical information-gathering on children receiving services through the center and share such statistical information with the statewide children's advocacy center organization, DFPS, and HHSC when requested;

(G) have an in-house volunteer program;

(H) employ an executive director who is answerable to the board of directors of the local children's advocacy center and who is not the exclusive salaried employee of any public agency partner; and

(I) operate under a working protocol that includes a statement of:

(i) the local children's advocacy center's mission;

(ii) each participating agency's role and commitment to the local children's advocacy center;

(iii) the type of cases to be handled by the local children's advocacy center;

(iv) the local children's advocacy center's procedure for conducting case reviews and forensic interviews and for ensuring access to specialized medical and mental health services; and

(v) the local children's advocacy center's policies regarding confidentiality and conflict resolution.

(2) The statewide children's advocacy center organization may waive requirements specified in subsection (b)(1) of this section if it determines that the waiver will not adversely affect the local children's advocacy center's ability to carry out its duties under Texas Family Code §264.405.

(c) Requirements for Contracts Awarded to Local Children's Advocacy Centers by the Statewide Children's Advocacy Center Organization.

(1) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must not result in reducing the financial support the local children's advocacy center receives from another source.

(2) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must be enforced through the use of remedies and in accordance with the procedures provided in the Uniform Grant Management Standards for Texas (UGMS).

(3) A contract between the statewide children's advocacy center organization and a local children's advocacy center under Texas Family Code §264.410 must require the local children's advocacy center to comply with the requirements and provisions applicable to local children's advocacy centers in the contract between the statewide children's advocacy center organization and HHSC under Texas Family Code §264.409.

§377.211.Operation of Local Children's Advocacy Center and Program.

(a) A local children's advocacy center must:

(1) assess victims of child abuse and their families to determine their need for services relating to the investigation of child abuse;

(2) provide the services determined to be needed;

(3) provide a facility at which a multidisciplinary team appointed under Texas Family Code §264.406 can meet to facilitate the efficient and appropriate disposition of child abuse cases through the civil and criminal justice systems; and

(4) coordinate the activities of governmental entities relating to child abuse investigations and delivery of services to child abuse victims and their families.

(b) Board of Directors of a Local Children's Advocacy Center.

(1) A local children's advocacy center must be governed by a board of directors. In addition to other persons appointed or elected to serve on the board of directors, the board of directors must include an executive officer of or an employee selected by an executive officer of each of the following:

(A) a law enforcement agency that investigates child abuse in the area served by the center;

(B) DFPS's Child Protective Services division; and

(C) the county or district attorney's office involved in the prosecution of child abuse cases in the area served by the center.

(2) Service on a local children's advocacy center's board by a public officer or employee is an additional duty of the person's office or employment.

(c) Multidisciplinary Team of a Local Children's Advocacy Center.

(1) A local children's advocacy center's multidisciplinary team must include employees of the participating agencies who are professionals involved in the investigation or prosecution of child abuse cases.

(2) A local children's advocacy center's multidisciplinary team may also include professionals involved in the delivery of services, including medical and mental health services, to child abuse victims and the victims' families.

(3) A multidisciplinary team must meet at regularly scheduled intervals to:

(A) review child abuse cases determined to be appropriate for review by the multidisciplinary team; and

(B) coordinate the actions of the entities involved in the investigation and prosecution of the cases and the delivery of services to the child abuse victims and the victims' families.

(4) A multidisciplinary team may review a child abuse case in which the alleged perpetrator does not have custodial control or supervision of the child or is not responsible for the child's welfare or care.

(5) When acting in the member's official capacity, a multidisciplinary team member is authorized to receive information made confidential by Texas Human Resources Code §40.005 or Texas Family Code §261.201 or §264.408.

(d) Liability.

(1) A person is not liable for civil damages for a recommendation made or an opinion rendered in good faith while acting in the official scope of the person's duties as a member of a multidisciplinary team or as a board member, staff member, or volunteer of a local children's advocacy center.

(2) This limitation on civil liability does not apply if a person's actions constitute gross negligence.

(e) Confidentiality Requirements Placed on a Local Children's Advocacy Center.

(1) In accordance with Texas Family Code §264.408, the files, reports, records, communications, and working papers used or developed in providing services under Texas Family Code Chapter 264 are confidential. This information is not subject to public release under Texas Government Code Chapter 552 and may be disclosed only for purposes consistent with Texas Family Code Chapter 264 without losing its confidential character. Disclosure may be to:

(A) DFPS, DFPS employees, law enforcement agencies, prosecuting attorneys, medical professionals, and other state or local agencies that provide services to children and families; and

(B) the attorney for the child who is the subject of the records and a court-appointed volunteer advocate appointed for the child under Texas Family Code §107.031.

(2) Information related to the investigation of a report of abuse or neglect under Texas Family Code Chapter 261 and services provided as a result of the investigation is confidential as provided by Texas Family Code §261.201.

(3) DFPS, a law enforcement agency, and a prosecuting attorney may share with a local children's advocacy center information that is confidential under Texas Family Code §261.201 as needed to provide services under Texas Family Code Chapter 264. Confidential information shared with or provided to a local children's advocacy center remains the property of the agency that shared or provided the information to the local children's advocacy center, and the information does not lose its confidential character.

(4) A video recording of an interview of a child made by a local children's advocacy center is the property of the prosecuting attorney involved in the criminal prosecution of the case involving the child. If no criminal prosecution occurs, the video recording is the property of the attorney involved in representing DFPS in a civil action alleging child abuse or neglect. If the matter involving the child is not prosecuted, the video recording is the property of DFPS if the matter is an investigation by DFPS of abuse or neglect. If DFPS is not investigating or has not investigated the matter, the video recording is the property of the agency that referred the matter to the local children's advocacy center.

(5) DFPS must be allowed access to a local children's advocacy center's video recorded interviews of children.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 12, 2016.

TRD-201606554

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: January 22, 2017

For further information, please call: (512) 424-6900