TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 355. REIMBURSEMENT RATES

The Texas Health and Human Services Commission (HHSC) proposes two new rules: §355.8023, concerning Reimbursement for Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS); and §355.8097, concerning Reimbursement for Physical, Occupational, and Speech Therapy Services. HHSC proposes to repeal and propose as new §355.8021, concerning Reimbursement for Home Health Services and Durable Medical Equipment, Prosthetics, Orthotics and Supplies. HHSC proposes amendments to §355.310, concerning Reimbursement Methodology for Customized Equipment; §355.7001, concerning Reimbursement Methodology for Telemedicine, Telehealth, and Home Telemonitoring Services; §355.8085, concerning Reimbursement Methodology for Physicians and Other Practitioners; §355.8441, concerning Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services; and §355.8581, concerning Reimbursement Methodology for Family Planning Services.

Background and Justification

The proposed new §355.8021 and §355.8023 separate home health services and durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) into unique rule sections and update outdated references to reflect current methodologies. As a result of these proposed changes, proposed changes for the following rules are administrative updates to rule references and formatting clean-up: §355.8581, §355.7001, and §355.301.

The proposed amendments to §355.8085 include additional language related to reimbursement for services provided by licensed psychology interns and fellows. As of January 1, 2017, Medicaid reimburses for services provided by licensed psychology interns and fellows; therefore, this rule is amended to reflect recent reimbursement updates.

The proposed new §355.8097 outlines the current reimbursement methodology for therapy services and defines the reimbursement percentage for services provided by therapy assistants at 70 percent of the rate for a licensed therapist. Medicaid currently reimburses for services provided by physical, occupational and speech therapy assistants at the same rate as a licensed therapist. This update is the only change with an estimated fiscal impact.

The proposed amendments to §355.8441 include updating rule references based on the changes outlined above and clarification of existing reimbursement methodologies.

All rule sections are updated to incorporate a reference to §355.201, concerning Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission, which indicates that notwithstanding any other provision of Chapter 355, HHSC may adjust fees, rates, and charges paid for medical assistance as described under the provisions of §531.021(d) and (e) of the Texas Government Code.

Section-by-Section Summary

Proposed amended §355.310(a) and (b) update the reference to §355.8023, related to DMEPOS.

Proposed amended §355.310(c) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed amended §355.7001(b) updates existing acronyms.

Proposed amended §355.7001(c) updates the reference to §355.8023, related to DMEPOS and other administrative updates.

Proposed amended §355.7001(g) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed new §355.8021 describes the reimbursement methodology for home health nursing and aide services.

Proposed new §355.8021(a) - (c) clarifies existing Medicaid reimbursement methodologies for home health nursing and aide services.

Proposed new §355.8021(d) references rule §355.8097, related to Reimbursement for Physical, Occupational, and Speech Therapy Services..

Proposed new §355.8021(e) references rule §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed new §355.8023(a) was previously included in §355.8021 and summarizes Medicaid payment information for DMEPOS.

Proposed new §355.8023(b) outlines existing Medicaid reimbursement methodologies for DMEPOS.

Proposed new §355.8023(c) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed amended §355.8085(a) deletes outdated text and replaces it with current reimbursement methodologies.

Proposed amended §355.8085(b) adds physical, occupational and speech therapy assistants and licensed psychological interns to the list of eligible providers.

Proposed amended §355.8085(c) updates existing acronyms.

Proposed amended §355.8085(d) deletes outdated information.

Proposed amended §355.8085(e) updates rule text for clarification purposes.

Proposed amended §355.8085(f) adds language for licensed psychology interns and fellows and specifies that they are reimbursed at 50 percent of the rate paid to a licensed psychologist.

Proposed amended §355.8085(g) adds a reference to rule §355.8097, related to Reimbursement for Physical, Occupational, and Speech Therapy Services.

Proposed amended §355.8085(h) adds a reference to rule §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed amended §355.8085(h) and (i), related to temporary enhanced reimbursement for certain specialists from January 1, 2013 to December 31, 2014, are deleted.

Proposed new §355.8097(a) defines to whom the rule applies for physical, occupational and speech therapy services provided by home health agencies, comprehensive outpatient rehabilitation facilities or outpatient rehabilitation facilities, independent therapists (including Early Childhood Intervention) and physicians and other practitioners.

Proposed new §355.8097(b) and (c) define the reimbursement methodologies for therapy services.

Proposed new §355.8097(d) adds rule references for therapy services provided by freestanding psychiatric facilities and outpatient hospitals.

Proposed new §355.8097(e) defines the reimbursement percentage for services provided by therapy assistants at 70 percent of the rate for a licensed therapist.

Proposed new §355.8097(f) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed amended §355.8441(a)(2) updates the reference to §355.8023, related to DMEPOS.

Proposed amended §355.8441(a)(3) updates the reference to §355.8021, related to home health services and other administrative updates.

Proposed amended §355.8441(a)(4) updates rule text for clarification purposes.

Proposed amended §355.8441(a)(5), (a)(6) and (a)(7) update the references to rules related to therapy services to new §355.8097 for independently enrolled therapists, home health agencies, and comprehensive outpatient rehabilitation facilities (CORFs) and outpatient rehabilitation facilities (ORFs).

Proposed amended §355.8441(a)(11)(A) deletes outdated information.

Proposed amended §355.8441(a)(11)(C) deletes outdated information related to services provided from October 1, 2011 through February 29, 2012.

Proposed amended §355.8441(a)(12)(B) updates the reimbursement methodology for personal care services to reflect current practice.

Proposed amended §355.8441(b) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Proposed amended §355.8581(a) updates the reference to §355.8023, related to DMEPOS.

Proposed amended §355.8581(b) adds a reference to §355.201, related to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for each year of the first five-years the proposed new rules and amendments will be in effect, there will be a cost savings to state government of $9,127,851 ($3,992,522 General Revenue (GR) and $5,135,329 Federal) for fiscal year (FY) 2017, $51,792,499 ($22,364,001 GR and $29,428,498 Federal) for FY 2018, $52,621,179 ($22,690,252 GR and $29,930,927 Federal) for FY 2019, $53,463,118 ($23,053,296 GR and $30,409,822 Federal) for FY 2020, and $54,318,528 ($23,422,149 GR and $30,896,379 Federal) for SFY 2021. Note that for FY 2017, approximately eight percent of therapy services are provided under fee-for-service Medicaid and 92 percent are provided under managed care. The portion of savings accruing to managed care for 2017 is dependent upon an adjustment of the managed care capitation rates; due to the timing of the rule change, it is possible there will not be time to adjust the managed care premiums for FY 2017.

There is no anticipated impact to costs and revenues of local governments as a result of enforcing or administering the rules as proposed.

Public Benefit and Cost

Pam McDonald, Director of Rate Analysis, has determined that for each year of the first five years the proposed new and amended rules are in effect, the expected public benefit will be the increased transparency that results from codifying program requirements into rule. An additional public benefit will be the determination of appropriate payment rates for therapy assistants.

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

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

Small BUSINESS and Micro-Business Impact Analysis

With the exception of proposed §355.8097 as outlined below, HHSC has determined that there will be no economic effect on small businesses or micro-businesses to comply with the proposed rules, as the rules merely codify existing practice.

HHSC has determined that the proposed addition of a rate methodology for therapy assistants under §355.8097 will have an economic effect on small businesses and micro-businesses. The proposed rate methodology indicates that reimbursement for services provided by a physical therapy assistant, occupational therapy assistant, or speech-language-pathologist assistant under the supervision of a licensed physical therapist, licensed occupational therapist, or licensed speech-language pathologist will be equal to 70 percent of the fee paid to the licensed therapist for the same service. Prior to May 1, 2016, HHSC was unable to determine when a therapy service was provided by a therapy assistant, so services provided by therapy assistants were reimbursed at the same fee as services provided by a licensed therapist. HHSC can now determine when a therapy service was provided by a therapy assistant and is proposing to reimburse for these services at a lower rate than services provided by a licensed therapist because therapy assistant salaries are significantly less than licensed therapist salaries.

Under §2006.002 of the Texas Government Code, a state agency proposing an administrative rule that may have an adverse economic effect on small businesses must prepare an economic impact statement and a regulatory flexibility analysis. The economic impact statement estimates the number of small businesses subject to the rule and projects the economic impact of the rule on small businesses. The regulatory flexibility analysis describes the alternative methods the agency considered to achieve the purpose of the proposed rule while minimizing adverse effects on small businesses. The purpose of the proposed rule is to align the reimbursement for services provided by therapy assistants with current market costs.

It is unknown how many small businesses or micro-businesses this change may affect because therapy assistants are not currently enrolled in Medicaid; therefore, HHSC is unable to predict the effect on individual providers but anticipates there will be an impact.

HHSC considered four alternatives to establish a reimbursement methodology for therapy assistants.

Alternative 1: Under Alternative 1, HHSC would reduce the reimbursement rates for therapy assistants to 70 percent of the rate paid to a licensed therapist. This aligns the reimbursement rate for therapy assistants at 70 percent of the rate paid to a licensed therapist based on the salary information from the National Bureau of Labor and Statistics (BLS). The BLS salary data supports a ratio of 70 percent for therapy assistants when compared to licensed therapists.

Alternative 2: Under Alternative 2, HHSC would reduce the reimbursement rates for therapy assistants to 92 percent of the rate paid to a licensed therapist to mirror the current methodology for services provided by a physician assistant or nurse practitioner under the supervision of a physician.

Alternative 3: Under Alternative 3, HHSC would reduce the reimbursement rates for therapy assistants to 50 percent of the rate paid to a licensed therapist to mirror the current methodology for services provided by a licensed psychology intern or fellow under the supervision of a licensed psychologist.

Alternative 4: Under Alternative 4, HHSC would make no change to existing reimbursement structure.

HHSC selected the Alternative 1 methodology for the proposed rules. Alternative 1 more closely aligns the reimbursement rates for therapy assistants with costs based on BLS salary data. Alternatives 2 and 3 use existing Medicaid reimbursement percentages paid for other services, but were not selected due to a lack of data to support either over Alternative 1. Alternative 4 was not selected due to HHSC's obligation to set economically efficient Medicaid payment rates.

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 Megan Wolfe, Acute Care, Rate Analysis Department, Texas Health and Human Services Commission, P.O. Box 149030, MC-H400, Austin, Texas 78714-9030; by fax to (512) 730-7475; or by e-mail to RADAcuteCare@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

Public Hearing

A public hearing is scheduled for April 12, 2017, at 9 a.m. (Central Time) in the Brown-Heatly Public Hearing Room, 4900 North Lamar Boulevard, Austin, Texas. Entry is through security at the main entrance of the building, which faces Lamar Boulevard. Persons requiring further information, special assistance, or accommodations should contact Amy Chandler at (512) 487-3419.

SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES

1 TAC §355.310

Statutory Authority

The new and amended rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

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

§355.310.Reimbursement Methodology for Customized Equipment.

(a) Reimbursement rates for customized power wheelchairs (CPWCs) and associated physical or occupational therapy evaluations provided under 40 TAC §19.2614 (relating to Customized Power Wheelchairs) are determined as follows:

(1) For CPWCs, rates are determined in accordance with §355.8023 [§355.8021(b)] of this title (relating to Reimbursement Methodology for [Home Health Services and] Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS)).

(2) For evaluations required for CPWCs under 40 TAC §19.2614(c), rates are determined in accordance with §355.313 of this title (relating to Reimbursement Methodology for Rehabilitative and Specialized Services).

(b) Reimbursement rates for customized adaptive aids and associated physical or occupational therapy evaluations provided under 40 TAC Chapter 17 (relating to Preadmission Screening and Resident Review) are determined as follows:

(1) For customized adaptive aids, rates are determined in accordance with §355.8023 [§355.8021(b)] of this title.

(2) For evaluations required for customized adaptive aids, rates are determined in accordance with §355.313 of this title.

(c) Fees for customized equipment are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

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 March 13, 2017.

TRD-201701046

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


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

1 TAC §355.7001

Statutory Authority

The new and amended rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

The proposed new and amended rules affect 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 (APRNs) [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, 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.

(3) Durable medical equipment suppliers are reimbursed for their Medicaid telehealth services in the same manner as their other professional services in accordance with §355.8023 [§355.8021] of this title (relating to Reimbursement Methodology for [Home Health Services and] Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS)).

(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 (relating to Reimbursement Methodology for Home Health Services).

(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) - (4) (No change.)

(g) Fees for telemedicine, telehealth, and home telemonitoring services are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

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 March 13, 2017.

TRD-201701047

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 2. MEDICAID HOME HEALTH PROGRAM

1 TAC §355.8021

Statutory Authority

The repeal of §355.8021 is proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

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

§355.8021.Reimbursement Methodology for Home Health Services and Durable Medical Equipment, Prosthetics, Orthotics and Supplies.

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 March 14, 2017.

TRD-201701068

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 2. MEDICAID HOME HEALTH AND DURABLE MEDICAL EQUIPMENT, PROSTHETICS, ORTHOTICS AND SUPPLIES (DMEPOS)

1 TAC §355.8021, §355.8023

Statutory Authority

The new rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

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

§355.8021.Reimbursement Methodology for Home Health Services.

(a) Authorized home health nursing and aide services provided to eligible Medicaid recipients are reimbursed the lesser of the billed amount or the Medicaid reimbursement rate established by HHSC.

(b) HHSC reviews the fees for nursing and aide services at least once every two years based upon:

(1) analysis of the Centers for Medicare & Medicaid Services fees for the same or similar services;

(2) analysis of Medicaid fees for the same or similar services in other states; and

(3) analysis of fees paid under commercial insurance for the same or similar services.

(c) HHSC may use data sources or methodologies other than those listed in subsection (b) of this section to establish Medicaid fees for home health services when HHSC determines that the methodologies in subsection (b) of this section are unreasonable or insufficient.

(d) Reimbursement for Physical, Occupational, and Speech Therapy Services is described in §355.8097 of this title (relating to Reimbursement for Physical, Occupational, and Speech Therapy Services).

(e) Fees for home health services will be adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

§355.8023.Reimbursement Methodology for Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS).

(a) Authorized items provided to eligible Medicaid recipients are reimbursed the lesser of the billed amount or the Medicaid reimbursement rate established by HHSC.

(b) HHSC reviews the fees for individual items at least every two years as follows.

(1) If Medicare reimburses for a durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) item, the Medicaid reimbursement rate is equal to, or a percentage of, the Medicare reimbursement rate for the procedure code. If HHSC determines that the Medicare reimbursement rate is insufficient, the methodologies in paragraphs (2) or (3) of this subsection apply.

(2) If Medicare does not reimburse for a DMEPOS item, other sources are used to determine the Medicaid payment rate as follows:

(A) analysis of Medicaid fees for the same or similar items in other states;

(B) eighty-two percent of the manufacturer's suggested retail price (MSRP);

(C) cost shown on a manufacturer's invoice submitted by the provider to HHSC; or

(D) analysis of fees paid under commercial insurance for the same or similar item or service.

(3) HHSC may use data sources or methodologies other than those listed in paragraph (2) of this subsection to establish Medicaid fees for DMEPOS when HHSC determines that those methodologies are unreasonable or insufficient.

(c) Fees for DMEPOS items are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

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 March 13, 2017.

TRD-201701048

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


DIVISION 5. GENERAL ADMINISTRATION

1 TAC §355.8085, §355.8097

Statutory Authority

The new and amended rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

The proposed new and amended rules affect 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 Texas 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) analysis of Medicare fees for the same or similar item or service; [historical payments, with adjustments, to ensure adequate access to appropriate health care services; or]

(B) analysis of Medicaid fees for the same or similar item or service in other states; or [actual resources required by an economically efficient provider to provide each individual service.]

(C) analysis of commercial fees for the same or similar item or service.

(3) HHSC may use data sources or methodologies other than those listed in paragraph (2) of this subsection to establish Medicaid fees for physicians and other practitioners when HHSC determines that those methodologies are unreasonable or insufficient.

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

(4) Fees for these services are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

(b) Eligible Providers. Eligible providers include:

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

(2) Providers of Radiation Therapy;

(3) Physical, Occupational, and Speech Therapists;

(4) Physical, Occupational, and Speech Therapy Assistants;

(5) [(4)] Physicians;

(6) [(5)] Podiatrists;

(7) [(6)] Chiropractors;

(8) [(7)] Optometrists;

(9) [(8)] Dentists;

(10) [(9)] Psychologists;

(11) [(10)] Licensed Psychological Associates;

(12) [(11)] Provisionally Licensed Psychologists;

(13) Licensed Psychological Interns and Fellows;

(14) [(12)] Maternity clinics; and

(15) [(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) - (4) (No change.)

(5) HHSC--The Texas Health and [or] Human Services Commission or its designee.

(6) - (8) (No change.)

(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 access-based fees (ABFs) and resource-based fees (RBFs).

(1) ABF methodology allows the state to:

(A) - (D) (No change.)

(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) - (5) (No change.)

(6) HHSC may use other data sources or methodologies to establish [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. Reimbursement for services provided under the supervision of a licensed psychologist by a licensed psychology intern or fellow are reimbursed at 50 percent of the fee paid to a 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) - (4) (No change.)

(5) Reimbursement for Physical, Occupational, and Speech Therapy Services is described in §355.8097 of this title (relating to Reimbursement for Physical, Occupational, and Speech Therapy Services).

(h) Fees for services provided by physicians or other practitioners are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

[(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.]

§355.8097.Reimbursement Methodology for Physical, Occupational, and Speech Therapy Services.

(a) Introduction. This section describes the Texas Medicaid reimbursement methodology that the Texas Health and Human Services Commission (HHSC) uses to calculate payments for covered therapy services provided by home health agencies, comprehensive outpatient rehabilitation facilities or outpatient rehabilitation facilities, independent therapists (including Early Childhood Intervention) and physicians and other practitioners.

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

(1) analysis of Medicare fees for the same or similar item or service;

(2) analysis of Medicaid fees for the same or similar item or service in other states; and

(3) analysis of fees paid under commercial insurance for the same or similar item or service.

(c) HHSC may use data sources or methodologies other than those listed in subsection (b) of this section to establish Medicaid fees for physical, occupational, and speech therapy services when HHSC determines that those methodologies are unreasonable or insufficient.

(d) Medicaid reimbursement methodologies for other applicable provider types are as follows:

(1) freestanding psychiatric facilities, under §355.8060 of this subchapter (relating to Reimbursement Methodology for Freestanding Psychiatric Facilities); and

(2) outpatient hospitals, under §355.8061 of this subchapter (relating to Outpatient Hospital Reimbursement).

(e) Reimbursement for services provided under the supervision of a licensed physical therapist, licensed occupational therapist, or licensed speech language pathologist. Reimbursement for services provided by a physical therapy assistant, occupational therapy assistant, or speech language pathologist assistant under the supervision of a licensed physical therapist, licensed occupational therapist, or licensed speech language pathologist is reimbursed at 70 percent of the fee paid to the licensed therapist for the same service.

(f) Fees for physical, occupational, and speech therapy services are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission).

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 March 13, 2017.

TRD-201701049

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


DIVISION 23. EARLY AND PERIODIC SCREENING, DIAGNOSIS, AND TREATMENT (EPSDT)

1 TAC §355.8441

Statutory Authority

The new and amended rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

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

§355.8441.Reimbursement Methodologies for Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Services.

(a) The following are reimbursement methodologies for services provided under the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) program, delivered to Medicaid clients under age 21, also known as Texas Health Steps (THSteps) and the THSteps Comprehensive Care Program (CCP). Reimbursement methodologies for services provided to all Medicaid clients, including clients under age 21, are located elsewhere in this chapter.

(1) Counseling and psychotherapy services are reimbursed to freestanding psychiatric facilities in accordance with §355.8060 of this subchapter (relating to Reimbursement Methodology for Freestanding Psychiatric Facilities).

(2) Durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) are reimbursed in accordance with §355.8023 [the same manner as DMEPOS under home health services at §355.8021(b)] of this subchapter (relating to Reimbursement Methodology for [Home Health Services and] Durable Medical Equipment, Prosthetics, Orthotics and Supplies(DMEPOS)).

(3) Nursing services, including, but not limited to, private duty nursing, registered nurse (RN) services, licensed vocational nurse/licensed practical nurse (LVN/LPN) services, skilled nursing services delegated to qualified aides by RNs in accordance with the licensure standards promulgated by the Texas Board of Nursing, and nursing assessment services, are reimbursed the lesser of the provider's billed charges or fees established by the Texas Health and Human Services Commission (HHSC) for each of the applicable provider types as follows:

(A) Independently enrolled RNs and LVNs/LPNs, under §355.8085 of this subchapter (relating to Reimbursement Methodology for Physicians and Other Practitioners);

(B) Home health agencies (HHAs), under §355.8021 [§355.8021(a)] of this subchapter (relating to Reimbursement Methodology for Home Health Services); and

(C) Advanced Practice Registered Nurses (APRNs), under §355.8281(a) of this subchapter (relating to Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists).

(4) Physician Assistants (PA), [are reimbursed the lesser of the provider's billed charges or fees established by the Texas HHSC] under §355.8093 of this subchapter (relating to Reimbursement Methodology for Physician Assistants).

(5) Physical therapy services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:

(A) independently enrolled therapists, under §355.8097 [§355.8085] of this subchapter;

(B) HHAs, under §355.8097 [§355.8021(a) ] of this subchapter;

(C) Medicare-certified outpatient facilities known as comprehensive outpatient rehabilitation facilities (CORFs) and outpatient rehabilitation facilities (ORFs), under §355.8097 [§355.8085] of this subchapter;

(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and

(E) outpatient hospitals, under §355.8061 of this subchapter (relating to Outpatient Hospital Reimbursement).

(6) Occupational therapy services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:

(A) independently enrolled therapists, under §355.8097 [§355.8085] of this subchapter;

(B) HHAs, under §355.8097 [§355.8021(a)] of this subchapter;

(C) CORFs and ORFs, under §355.8097 [§355.8085 ] of this subchapter;

(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and

(E) outpatient hospitals, under §355.8061 of this subchapter.

(7) Speech-language pathology services are reimbursed in accordance with the Medicaid reimbursement methodologies for the applicable provider type as follows:

(A) independently enrolled therapists, under §355.8097 [§355.8085] of this subchapter;

(B) HHAs, under §355.8097 [§355.8021(a) ] of this subchapter;

(C) CORFs and ORFs, under §355.8097 [§355.8085] of this subchapter;

(D) freestanding psychiatric facilities, under §355.8060 of this subchapter; and

(E) outpatient hospitals, under §355.8061 of this subchapter.

(8) - (10) (No change.)

(11) Dental services are reimbursed in accordance with the following Medicaid reimbursement methodologies:

(A) Dental services provided by enrolled dental providers are reimbursed in accordance with §355.8085 of this subchapter. [The fees are calculated as access-based fees under §355.8085 of this subchapter and are based on a percentage of the billed charges (i.e., the usual-and-customary amount providers charge non-Medicaid clients for similar services) reported on Medicaid dental claims for each dental service, excluding billed charges that are less than or equal to the published Medicaid fee for that service.]

(B) Dental services provided by federally qualified health centers (FQHCs) are reimbursed in accordance with §355.8261 of this subchapter (relating to Federally Qualified Health Center Services Reimbursement).

[(C) For services provided from October 1, 2011, through February 29, 2012, publicly owned dental providers may be eligible to receive supplemental payments for fee-for-service dental claims. HHSC will calculate supplemental payments using the following methodology:]

[(i) HHSC will select a commercial dental insurance carrier fee schedule that is utilized by the provider.]

[(ii) For adjudicated claims, the maximum amount of supplemental payment an eligible dental provider may receive is calculated as the difference between the HHSC approved reimbursement amount from the Medicaid fee-for-service dental fee schedule and the corresponding reimbursement on the dental insurance carrier fee schedule selected in clause (A) of this subparagraph for the same procedure. The supplemental payment is calculated quarterly after the end of each federal fiscal quarter. The supplemental payment is contingent on receipt of funds as specified in clause (C) of this subparagraph.]

[(iii) The funding for the state share of supplemental payments to a dental provider is limited to and obtained through intergovernmental transfers of funds from the governmental entity that owns and operates the dental provider. An intergovernmental transfer that is not received in the manner and by the date specified by HHSC may not be accepted.]

[(iv) If a supplemental payment results in an overpayment or if the federal government disallows federal financial participation related to the receipt or use of supplemental payments under this section, HHSC may recoup an amount equal to the federal share of supplemental payments overpaid or disallowed. To satisfy the amount owed, HHSC may recoup from any current or future Medicaid payments.]

(C) [(D)] Subject to approval by the Centers for Medicare and Medicaid Services, for services provided on or after March 1, 2012, publicly owned dental providers may be eligible to receive Uncompensated Care payments for dental services under the Texas Healthcare Transformation and Quality Improvement 1115 Waiver. For purposes of this section, Uncompensated Care ("UC") payments are payments intended to defray the uncompensated costs of services that meet the definition of "medical assistance" contained in §1905(a) of the Social Security Act. HHSC will calculate UC payments using the following methodology:

(i) - (vi) (No change.)

(12) Personal care services (PCS) are reimbursed in accordance with the following Medicaid reimbursement methodologies for the applicable provider type:

(A) School districts delivering PCS under School Health and Related Services (SHARS) are reimbursed in accordance with §355.8443 of this division (relating to Reimbursement Methodology for School Health and Related Services (SHARS)); and

(B) Providers other than school districts delivering PCS are reimbursed as follows:

(i) PCS and PCS delivered in conjunction with delegated nursing services are reimbursed fees determined by HHSC. HHSC reviews the fees for individual services at least every two years based upon:

(I) analysis of Medicare fees for the same or similar item or service;

(II) analysis of Medicaid fees for the same or similar item or service in other states; or

(III) analysis of commercial fees for the same or similar item or service.

(ii) HHSC may use data sources or methodologies other than those listed in item (i) of this subparagraph to establish Medicaid fees for physicians and other practitioners when HHSC determines that those methodologies are unreasonable or insufficient.

[or its designee. The fees are determined using at least one of the following methods: a review of rates paid to providers delivering similar services; modeling using an analysis of other data available to HHSC; or a combination thereof, as determined appropriate by HHSC.]

(iii) [(ii)] PCS delivered through the Consumer Directed Services payment option are reimbursed in accordance with §355.114 of this chapter (relating to Consumer Directed Services Payment Option).

(b) Fees for EPSDT services are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission)

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 March 13, 2017.

TRD-201701050

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079


DIVISION 30. FAMILY PLANNING

1 TAC §355.8581

Statutory Authority

The new and amended rules are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; and Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

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

§355.8581.Reimbursement Methodology for Family Planning Services.

(a) Family planning services described in 25 TAC Chapter 56 (relating to Family Planning) are reimbursed as follows:

(1) For physician and other practitioner services, physician-administered drugs and biologicals, and the administration of immunizations, providers are reimbursed the lesser of:

(A) the provider's billed charges; or

(B) fees determined by the Texas Health and Human Services Commission in accordance with §355.8085 of this subchapter (relating to Reimbursement Methodology for Physicians and Other Practitioners).

(2) Durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) are reimbursed in accordance with §355.8023 [the same manner as DMEPOS under home health services at §355.8021(b)] of this subchapter (relating to Reimbursement Methodology for [Home Health Services and] Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS)).

(b) Fees for family planning services and items are adjusted within available funding as described in §355.201 of this title (relating to Establishment and Adjustment of Reimbursement Rates by the Health and Human Services Commission)

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 March 13, 2017.

TRD-201701051

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 23, 2017

For further information, please call: (512) 707-6079