TITLE 25. HEALTH SERVICES

PART 1. DEPARTMENT OF STATE HEALTH SERVICES

CHAPTER 412. LOCAL MENTAL HEALTH AUTHORITY RESPONSIBILITIES

The Health and Human Services Commission (HHSC), on behalf of the Department of State Health Services (department), adopts amendments to §412.108, §412.303, and §412.322, concerning local mental health authority (LMHA) responsibilities. The amendment to §412.303 is adopted with changes to the proposed text as published in the August 12, 2016, issue of the Texas Register (41 TexReg 5960). The amendments to §412.108 and §412.322 are adopted without changes, and therefore, the sections will not be republished.

BACKGROUND AND PURPOSE

The amendments clarify processes related to billing for community mental health services; expand the provider base authorized to determine medical necessity to include physician assistants with specialized psychiatric/mental health training; provide a reference to the criteria set forth in the subchapter for local mental health authorities (LMHAs) to use in developing an alternative credentialing process for Qualified Mental Health Professionals - Community Services (QMHP-CS); and update specific references to the Diagnostic and Statistical Manual (DSM) with a generic reference to eliminate the need to revise rules should the manual change in the future.

SECTION BY SECTION

In §412.108 concerning billing procedures, subsection (a) describes the process for determining the monthly account for each person; subsection (b) directs that the LMHA access all available funding sources before using department funds to pay for a person's services; subsection (c) directs the LMHA to bill the person's third-party coverage for the monthly account amount for covered services; subsection (d) sets the processes for billing the person (or parents) the monthly account amount when there is no third-party coverage, when there is Medicare third-party coverage, or when there is non-Medicare third-party coverage; and subsection (e) describes the information that must be included in monthly billing statements that are sent to individuals who have been determined as having an ability to pay for the services the individuals receive. The requirements and processes for payments, collections, and non-payment, including when a financial hardship exists are located in §412.109.

Section 412.108(d)(3) concerns non-Medicare third-party coverage and reflects separate billing scenarios depending on whether a person's cost sharing exceeds or is less than the person's maximum monthly fee (MMF). Subparagraph (A) requires that if all cost sharing exceeds the MMF, the person is billed all applicable co-payments, co-insurance, and deductibles for services listed in the monthly account as covered by the non-Medicare third-party coverage. Subparagraph (B) requires that if a person's cost sharing does not exceed the person's MMF, then the amounts described in new subsection (d)(3)(B)(i)(I) and (II) are added to equal the total amount applied toward the person's MMF. These fees when added together determine whether the account amount exceeds or is less than the person's MMF.

In §412.303(19), the definition of "DSM, Diagnostic Statistical Manual of Mental Disorders" published by the American Psychiatric Association was clarified by adding the phrase "that is approved for use by the department" in the proposed text. In adoption, the phrase "that is approved for use by the department" is being removed.

In §412.303(35), the definition of the term "LPHA or licensed practitioner of the healing arts" is clarified by adding the acronyms for the respective clinical/clinical profession titles in subparagraphs (B), (C), and (G). In paragraph (D), the word "licensed" is deleted because the term "licensed psychologist" is not used as part of a psychologist's clinical title as is the case when using the term "licensed clinical social worker." The definition of each clinical/medical title sets forth the requirement that the professional be licensed according to the Occupations Code, Chapter 204. A new paragraph (F) was added to include "physician assistant (PA)" and the subsequent paragraph was re-lettered.

In §412.303(45), the following requirement that the PA "has specialized psychiatric/mental health training" was added in addition to being licensed in accordance with the Occupations Code, Chapter 204.

In §412.303(48), the definition of the term "QMHP--CS or qualified mental health professional---community services," paragraph (C) was revised to refer to the criteria in §412.316(c) and (d) that the LMHA or MCO must use to determine an alternative credentialing process for QMHPs.

The amendments to §412.322(b) and (g) were amended by deleting the language "all five axes of the current" because the current edition DSM V, no longer uses axes in the formulation of mental health diagnoses.

COMMENTS

The department, on behalf of HHSC, did not receive public comments regarding the proposed rules during the comment period.

Amended §412.303 is adopted with changes to the proposed text as published in the August 12, 2016, issue of the Texas Register. HHSC is deleting the proposed text in §412.303(19), "that is approved for use by the department," for clarity in using the current version of the DSM. HHSC is adopting §412.303(35) with a change to be consistent with the Texas Board of Nursing certification title of "advanced practice registered nurse" by adding the acronym "APRN." HHSC is also making a minor editorial change to the definition of "registered nurse" by adding the acronym "RN" in §412.303(48)(B).

LEGAL CERTIFICATION

The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.

SUBCHAPTER C. CHARGES FOR COMMUNITY SERVICES

25 TAC §412.108

STATUTORY AUTHORITY

The amendment is authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700415

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


SUBCHAPTER G. MENTAL HEALTH COMMUNITY SERVICES STANDARDS

DIVISION 1. GENERAL PROVISIONS

25 TAC §412.303

STATUTORY AUTHORITY

The amendment is authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

§412.303.Definitions.

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

(1) Access--The ability to obtain mental health community services based upon components such as availability and acceptability of services to the individual, or the individual's Legally Authorized Representative (LAR) on the individual's behalf, transportation, distance, hours of operation, language, and the cultural competency of staff members. Barriers to access may be structural, financial, or specific to the individual.

(2) Adolescent--An individual who is at least 13 years of age, but younger than 18 years of age.

(3) Adult--An individual who is 18 years of age or older.

(4) Advanced practice nurse--A staff member who is a registered nurse approved by the Texas Board of Nursing as a clinical nurse specialist in psychiatric/mental health or nurse practitioner in psychiatric/mental health, in accordance with Texas Occupations Code, Chapter 301.

(5) Advocacy--Support for an individual or family member in expressing and resolving issues or concerns regarding access to or quality and appropriateness of services.

(6) Appeal--A mechanism for an independent review of an adverse determination.

(7) Assessment--A systematic process for measuring an individual's service needs.

(8) Child--An individual who is at least three years of age, but younger than 13 years of age.

(9) Competency--Demonstrated knowledge and skilled performance of a particular activity.

(10) Continuity of services--Services that ensure uninterrupted services are provided to an individual during a transition between service types (e.g., inpatient services, outpatient services) or providers, in accordance with applicable rules (e.g., Chapter 412, Subchapter D of this title (relating to Mental Health Services - Admission, Continuity, and Discharge)). These activities include:

(A) assisting with admissions and discharges;

(B) facilitating access to appropriate services and supports in the community, including identifying and connecting the individual with community resources;

(C) participating in the individual's treatment plan development and reviews;

(D) promoting implementation of the individual's treatment plan or continuing care plan; and

(E) facilitating coordination and follow-up between the individual and the individual's family, as well as with available community resources.

(11) COPSD or co-occurring psychiatric and substance use disorders--The co-occurring diagnoses of psychiatric disorders and substance use disorders.

(12) Credentialing--A process to review and approve a staff member's educational status, experience, and licensure status (as applicable) to ensure that the staff member meets the departmental requirements for service provision. The process includes primary source verification of credentials, establishing and applying specific criteria and prerequisites to determine the staff member's initial and ongoing competency and assessing and validating the staff member's qualification to deliver care. Re-credentialing is the periodic process of reevaluating the staff's competency and qualifications.

(13) Crisis--A situation in which:

(A) the individual presents an immediate danger to self or others; or

(B) the individual's mental or physical health is at risk of serious deterioration; or

(C) an individual believes that he or she presents an immediate danger to self or others or that his or her mental or physical health is at risk of serious deterioration.

(14) Crisis services--Mental health community services or other necessary interventions provided to an individual in crisis.

(15) CSSP or community services specialist--A staff member who, as of August 31, 2004:

(A) received:

(i) a high school diploma; or

(ii) a high school equivalency certificate issued in accordance with the law of the issuing state;

(B) had three continuous years of documented full-time experience in the provision of mental health rehabilitative services or case management services; and

(C) demonstrated competency in the provision and documentation of mental health rehabilitative or case management services in accordance with Chapter 419, Subchapter L of this title (relating to Mental Health Rehabilitative Services) and Chapter 412, Subchapter I of this title (relating to Mental Health Case Management Services).

(16) Cultural competency--Demonstrated knowledge and skill by a staff member to effectively respond to an individual's needs through knowledge of communication, actions, customs, beliefs, and values, within the individual's racial, ethnic, religious beliefs, disability, and social groups.

(17) Department--Department of State Health Services (DSHS).

(18) Department-approved algorithm--An evidence-based process for providing psychiatric care to adults with severe and persistent mental illnesses and children and adolescents with serious emotional disturbance, consisting of consensus-derived guidelines for medication treatment, training and support for physicians, standardized documentation, and patient and family education.

(19) DSM--The current edition of the Diagnostic Statistical Manual of Mental Disorders published by the American Psychiatric Association.

(20) Emergency care services--Mental health community services or other necessary interventions directed to address the immediate needs of an individual in crisis in order to assure the safety of the individual and others who may be placed at risk by the individual's behaviors, including, but not limited to, psychiatric evaluations, administration of medications, hospitalization, stabilization or resolution of the crisis.

(21) Face-to-face--A contact with an individual that occurs in person. Face-to-face does not include contacts made through the use of video conferencing or telecommunication technologies, including telemedicine.

(22) Family member--Any person who an individual identifies as being a member of their family.

(23) Family partner--An experienced, trained primary caregiver (i.e., parent of an individual with a mental illness or serious emotional disturbance) who provides peer mentoring, education, and support to the caregivers of a child who is receiving mental health community services.

(24) HIPAA--The Health Insurance Portability and Accountability Act, 42 U.S.C. §1320d et seq.

(25) Identifying information--The name, address, date of birth, social security number, or any information by which the identity of an individual can be determined either directly or by reference to other publicly available information. The term includes medical records, graphs, and charts that contain an individual's information; statements made by the individual either orally or in writing while receiving mental health community services; videotapes, audiotapes, photographs, and other recorded media; and any acknowledgment that an individual is receiving or has received services from a state facility, LMHA, MCO, or provider.

(26) Indicator--A defined, measurable variable used to monitor the quality or appropriateness of an important aspect of an individual's care or service or an organization's performance of related functions, processes, or outcomes. Indicators can measure activities, events, occurrences, or outcomes for which data can be collected to allow comparison with a threshold, a benchmark, or prior performance.

(27) Individual--A person who is seeking or receiving mental health community services from or through a provider.

(28) LAR or legally authorized representative--A person authorized by law to act on behalf of an individual with regard to a matter described in this subchapter, including, but not limited to, a parent, guardian, or managing conservator.

(29) LCDC or licensed chemical dependency counselor--A counselor licensed by the department pursuant to the Texas Occupations Code, Chapter 504.

(30) LCSW or licensed clinical social worker--A staff member who is licensed as a clinical social worker by the Texas State Board of Social Worker Examiners in accordance with the Texas Occupations Code, Chapter 505.

(31) LMFT or licensed marriage and family therapist--A staff member who is licensed as a licensed marriage and family therapist by the Texas State Board of Examiners of Marriage and Family Therapists in accordance with Texas Occupations Code, Chapter 502.

(32) LMHA or local mental health authority--An entity designated as the local mental authority by the department in accordance with the Texas Health and Safety Code, §533.035(a).

(33) LOC or level of care--A designation given to the department's standardized packages of mental health community services, based on the uniform assessment and the utilization management guidelines, which recommend the type, amount, and duration of mental health community services to be provided to an individual.

(34) LPC or licensed professional counselor--A staff member who is licensed as a licensed professional counselor by the Texas State Board of Examiners of Professional Counselors in accordance with Texas Occupations Code, Chapter 503.

(35) LPHA or licensed practitioner of the healing arts--A staff member who is:

(A) a physician;

(B) a licensed professional counselor (LPC);

(C) a licensed clinical social worker (LCSW);

(D) a psychologist;

(E) an advanced practice nurse (APRN);

(F) a physician assistant (PA); or

(G) a licensed marriage and family therapist (LMFT).

(36) LVN or licensed vocational nurse--A staff member who is licensed as a licensed vocational nurse by the Texas Board of Nursing in accordance with Texas Occupations Code, Chapter 301.

(37) Management information system--An information system designed to supply an LMHA or MCO with information needed to plan, organize, staff, direct, and control their operations and clinical decision-making.

(38) MCO or managed care organization--An entity that has a current Texas Department of Insurance certificate of authority to operate as a Health Maintenance Organization (HMO) in the Texas Insurance Code, Chapter 843, or as an approved nonprofit health corporation in the Texas Insurance Code, Chapter 844, and that provides mental health community services pursuant to a contract with the department.

(39) Medical necessity--The need for a service that:

(A) is reasonable and necessary for the diagnosis or treatment of a mental health disorder or a co-occurring psychiatric and substance use disorder (COPSD) in order to improve or maintain an individual's level of functioning;

(B) is provided in accordance with professionally accepted clinical guidelines and standards of practice in behavioral health care;

(C) is furnished in the most clinically appropriate, available setting in which the service can be safely provided;

(D) is provided at a level that is safe and appropriate for the individual's needs and facilitates the individual's recovery; and

(E) could not be omitted without adversely affecting the individual's mental or physical health or the quality of care rendered.

(40) Medical record--The systematic, organized account, compiled by health care providers, of information relevant to the services provided to an individual. This includes an individual's history, present illness, findings on examination, treatment and discharge plans, details of direct and indirect care and services, and notes on progress.

(41) Mental health community services--All services medically necessary to treat, care for, supervise, and rehabilitate individuals who have a mental illness or emotional disorder or a COPSD. These services include services for the prevention of and recovery from such disorders, but do not include inpatient services provided in a state facility.

(42) Mental illness--An illness, disease, or condition (other than a sole diagnosis of epilepsy, dementia, substance use disorder, mental retardation, or pervasive developmental disorder) that:

(A) substantially impairs an individual's thought, perception of reality, emotional process, development, or judgment; or

(B) grossly impairs an individual's behavior as demonstrated by recent disturbed behavior.

(43) Peer provider--A staff member who:

(A) has received:

(i) a high school diploma; or

(ii) a high school equivalency certificate issued in accordance with the law of the issuing state;

(B) has at least one cumulative year of receiving mental health community services; and

(C) is under the direct clinical supervision of an LPHA.

(44) Physician--A staff member who is:

(A) licensed as a physician by the Texas Medical Board in accordance with Texas Occupations Code, Chapter 155; or

(B) authorized to perform medical acts under an institutional permit at a Texas postgraduate training program approved by the Accreditation Council for Graduate Medical Education, the American Osteopathic Association, or the Texas Medical Board.

(45) Physician assistant--A staff member who has specialized psychiatric/mental health training and who is licensed as a physician assistant by the Texas State Board of Physician Assistant Examiners in accordance with Texas Occupations Code, Chapter 204.

(46) Provider--Any person or legal entity that contracts with the department, an LMHA, or an MCO to provide mental health community services to individuals, including that part of an LMHA or MCO directly providing mental health community services to individuals. The term includes providers of mental health case management services and providers of mental health rehabilitative services.

(47) Psychologist--A staff member who is licensed as a psychologist by the Texas State Board of Examiners of Psychologists in accordance with Texas Occupations Code, Chapter 501.

(48) QMHP-CS or qualified mental health professional-community services--A staff member who is credentialed as a QMHP-CS who has demonstrated and documented competency in the work to be performed and:

(A) has a bachelor's degree from an accredited college or university with a minimum number of hours that is equivalent to a major (as determined by the LMHA or MCO in accordance with §412.316(d) of this title (relating to Competency and Credentialing)) in psychology, social work, medicine, nursing, rehabilitation, counseling, sociology, human growth and development, physician assistant, gerontology, special education, educational psychology, early childhood education, or early childhood intervention;

(B) is a registered nurse (RN); or

(C) completes an alternative credentialing process as determined by the LMHA or MCO in accordance with §412.316(c) and (d) of this title relating to (Competency and Credentialing).

(49) Recovery--The process by which a person becomes able or regains the ability to live, work, learn, and participate fully in his or her community.

(50) Referral--The process of identifying appropriate services and providing the information and assistance needed to access them.

(51) RN or registered nurse--A staff member who is licensed as a registered nurse by the Texas Board of Nursing in accordance with Texas Occupations Code, Chapter 301.

(52) Restraint--The same meaning as defined in Chapter 415, Subchapter F of this title (relating to Interventions in Mental Health Programs).

(53) Routine care services--Mental health community services provided to an individual who is not in crisis.

(54) Safety monitoring--Ongoing observation of an individual to ensure the individual's safety. An appropriate staff person must be continuously present in the individual's immediate vicinity, provide ongoing monitoring of the individual's mental and physical status, and ensure rapid response to indications of a need for assistance or intervention. Safety monitoring includes maintaining continuous visual contact with frequent face-to-face contacts as needed.

(55) Screening Activities performed by a Qualified Mental Health Professional--Community Services (QMHP-CS) to gather triage information to determine the need for in-depth assessment. The QMHP-CS collects this information through face-to-face or telephone interviews with the individual or collateral. This service includes screenings to determine if the individual's need is emergent, urgent, or routine (which is conducted prior to the face-to-face assessment to determine the need for emergency services).

(56) Seclusion--The same meaning as defined in Chapter 415, Subchapter F of this title.

(57) Staff member--Anyone who works or provides services for an LMHA, MCO, or provider as an employee, contractor, intern, or volunteer.

(58) Support services--Mental health community services delivered to an individual, LAR, or family member(s) to assist the individual in functioning in the individual's chosen living, learning, working, and socializing environments.

(59) Telemedicine--The use of health care information exchanged from one site to another via electronic communications for the health and education of the individual or provider, and for the purpose of improving patient care, treatment, and services. This definition applies only for purposes of this subchapter and does not affect, modify, or relate in any way to other rules defining the term or regulating the service, or to any statutory definitions or requirements.

(60) Uniform assessment--An assessment tool developed by the department that includes, but is not limited to, the Adult Texas Recommended Assessment Guidelines (TRAG), the Children and Adolescent Texas Recommended Assessment Guidelines, and the department-approved algorithms.

(61) Urgent care services--Mental health community services or other necessary interventions provided to persons in crisis who do not need emergency care services, but who are potentially at risk of serious deterioration.

(62) Utilization management exception--The authorization of additional amounts of services based on medical necessity when the individual has reached the maximum service units of their currently authorized level of care (LOC).

(63) Utilization management guidelines--Guidelines developed by the department that establish the type, amount, and duration of mental health community services for each LOC.

(64) Volunteer--A person who receives no remuneration for the provision of time, individual attention, or assistance to individuals receiving mental health community services from entities or providers governed by this subchapter. Volunteers may include:

(A) community members;

(B) family members of individuals served when not acting in their capacity as a family member;

(C) employees when not acting in their capacity as employees; and

(D) individuals served when acting on behalf of another individual.

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

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700416

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972


DIVISION 3. STANDARDS OF CARE

25 TAC §412.322

STATUTORY AUTHORITY

The amendment is authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.

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

Filed with the Office of the Secretary of State on January 30, 2017.

TRD-201700417

Lisa Hernandez

General Counsel

Department of State Health Services

Effective date: February 19, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 776-6972