TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 353. MEDICAID MANAGED CARE

SUBCHAPTER O. DELIVERY SYSTEM AND PROVIDER PAYMENT INITIATIVES

1 TAC §353.1301

The Texas Health and Human Services Commission (HHSC) adopts amendments to §353.1301, concerning General Provisions. The amendments are adopted without changes to the proposed text as published in the August 18, 2017, issue of the Texas Register (42 TexReg 4041), and therefore will not be republished.

BACKGROUND AND JUSTIFICATION

In March of 2017, HHSC adopted a series of rules governing delivery system and provider payment initiatives through Medicaid managed care organizations (MCOs) (42 TexReg 13). These initiatives are, generally, funded through intergovernmental transfers (IGT) from local governmental entities. Given that these programs are not funded with state general revenue, HHSC must ensure, to the greatest extent possible, that no state dollars are at risk through the operation of these programs. A disallowance by the Centers for Medicare & Medicaid Services (CMS) is one potential risk to general revenue, unless HHSC can ensure that funds from another source are available.

As originally adopted in March of 2017, §353.1301(j) described the procedure HHSC would use in the case of a disallowance. The rule delineated between a disallowance for impermissible provider-related donations and all other disallowances. If there was a disallowance for impermissible provider-related donations, the rule required HHSC to recoup the disallowed amount from transferring governmental entities that caused the disallowance. If there was a disallowance for reasons other than an impermissible provider-related donation, HHSC reserved the right to recoup the disallowed amount from MCOs, providers, or governmental entities.

HHSC adopts amendments to §353.1301(j) in an effort to provide HHSC more flexibility. HHSC reserves the right, through this amendment, to recoup from MCOs, providers, or governmental entities in any disallowance. In order to ensure that there is no risk to general revenue, to the greatest extent possible, HHSC will require that if a recoupment for a disallowance results in a subsequent disallowance, the entity that HHSC initially recouped against will face a recoupment for the subsequent disallowance.

In addition, HHSC clarified the heading for §353.1301(k) by changing the heading from "Recoupment" to "Overpayment."

COMMENTS

The 30-day comment period ended September 18, 2017. During this period, HHSC received comments regarding the proposed rule from two commenters, Nueces County Hospital District and Teaching Hospitals of Texas. A summary of comments relating to the rule and HHSC's responses follows.

Comment: One commenter proposed to revise the amendment such that HHSC would not have the authority to recoup funds from a governmental entity if that entity was acting solely in its capacity to IGT.

Response: HHSC appreciates the comment but declines to change the rule as suggested. When the amendment was initially proposed, HHSC sought to gain flexibility such that the most appropriate entity would be responsible for a disallowance for impermissible provider-related donations. To accept this proposed change would defeat the purpose of the amendment in the first place. HHSC cannot, at this time, contemplate a reason why it would need to take an action against a governmental entity that only IGTs for Medicaid payments to others. However, HHSC cannot foreclose the possibility that such a reason might exist. No changes were made in response to this comment.

Comment: One commenter supported the changes to the rule to allow for the continued success of IGT-based programs.

Response: HHSC appreciates the comment. No changes were made in response to this comment.

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with board 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; 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 the Texas Human Resources Code, Chapter 32; and with Texas Government Code §533.002, which authorizes HHSC to implement the Medicaid managed care program.

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 October 12, 2017.

TRD-201704095

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: November 1, 2017

Proposal publication date: August 18, 2017

For further information, please call: (512) 424-6863


CHAPTER 355. REIMBURSEMENT RATES

SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 12. CERTIFIED REGISTERED NURSE ANESTHETISTS AND ANESTHESIOLOGIST ASSISTANTS

1 TAC §355.8221

The Texas Health and Human Services Commission (HHSC) adopts amendments to §355.8221, concerning Reimbursement Methodology. The amendment is adopted with changes to the proposed text as published in the August 4, 2017, issue of the Texas Register (42 TexReg 3851).

BACKGROUND AND JUSTIFICATION

Certified registered nurse anesthetists (CRNAs) and anesthesiologist assistants (AAs) are currently reimbursed at the lesser of billed charges or 92 percent of the reimbursement paid to a solo anesthesiologist for supervised services. The amendment to §355.8221 includes language to add anesthesiologist assistants to the reimbursement methodology. Further, the amendment provides that CRNAs and AAs are reimbursed at the lesser of billed charges or 50 percent of the calculated payment when supervised by an anesthesiologist. If a CRNA is supervised by a physician other than an anesthesiologist, HHSC reimburses CRNAs at the lesser of billed charges or 92 percent of the calculated payment.

Amendments to §355.8221 are adopted with changes based on the 2018-19 General Appropriations Act, Senate Bill 1, 85th Legislature, Regular Session, 2017 [Article II, HHSC, Rider 223] that directed HHSC to review and evaluate the reimbursement methodology and payment rates for anesthesiology supervision. Appropriations in this Act are based on a reimbursement methodology and rate that is cost neutral with the reimbursement structure in place in fiscal year 2016. Section 355.8221 was amended in response to comments received to change the effective date to November 1, 2017, and language was added to state that CRNAs will be reimbursed at the lesser of billed charges or 92 percent of the calculated payment when supervised by a physician other than an anesthesiologist.

In order to maintain cost neutrality as indicated in Rider 223, there will be additional adjustments to reimbursement rates which are not covered under this rule.

COMMENTS

The 30-day comment period for the amended rule ended September 5, 2017. During the comment period, HHSC received comments from:

Wilbarger General Hospital

Advance Practice Registered Nurse Alliance

Children's Health System of Texas

Texas Organization of Rural & Community Hospitals (TORCH)

Coalition for Nurses in Advanced Practice

Hereford Regional Medical Center

Gonzales Healthcare Systems

Ward Memorial Hospital

Golden Plains Community Hospital

Moore County Hospital District

Ochiltree Hospital District

Covenant Health

Memorial Medical Center

YPS Anesthesia Services

Brownfield Regional Medical Center

Eastland Memorial Hospital

Texas Academy of Anesthesiologist Assistants

Young Professional Services

Texas Children's Hospital - Baylor College of Medicine

Texas Society of Anesthesiologists

Texas Association of Nurse Anesthetists

Below is a summary of the comments received and HHSC's responses.

Comment: Several commenters raised concerns related to the reduction from 92 percent to 50 percent for CRNA services provided under the supervision of a physician other than an anesthesiologist, where there would be only one payment made to the CRNA at 50 percent of the calculated anesthesia rate without the corresponding 50 percent payment to an anesthesiologist. This would have a significant adverse economic impact on CRNAs, particularly in rural areas where they may be the only available anesthesia provider. Commenters stressed that this would adversely impact access to care for Medicaid patients in rural communities as well.

Response: After review of comments, HHSC revised the rule language and added a section to the rule specifying that CRNA services provided under the supervision of a physician other than an anesthesiologist would be reimbursed at 92 percent of the calculated payment for an anesthesia service. In addition, in a separate initiative, the calculated anesthesia reimbursement rate is proposed to increase, by increasing the conversion factors and set fees, resulting in an overall cost neutral impact for Medicaid anesthesia services.

Comment: Several commenters stated that they can only support the proposed amendments if it includes a significant increase in the base conversion factor for all anesthesia services and an appropriate increase in the methodology for physician anesthesiologists to allow for overall cost neutrality.

Response: HHSC acknowledges this concern and, in a separate initiative, the calculated anesthesia reimbursement rate is proposed to increase, by increasing the conversion factors and set fees, resulting in an overall cost neutral impact for Medicaid anesthesia services. No changes were made in response to this comment.

Comment: Several commenters stated that reducing reimbursement for anesthesia services will significantly impact children's hospitals that provide care for the state's most medically vulnerable children and potentially harm the patients these hospitals serve.

Response: HHSC does not anticipate that this update will significantly impact children's hospitals because the proposed payment methodology is expected to be cost neutral overall. As a result, HHSC does not anticipate a disruption in medical services to Texas patients. No changes were made in response to this comment.

Comment: One commenter suggested that the proposed rate change will adversely affect access to and quality of care for the Medicaid population in Texas through the anesthesia care team model, with specific reference to services provided by AAs. According to the commenter, the Medicaid population is often at a higher risk for complications and includes a significant pediatric population. A reduction in payment could force suboptimal care upon these fragile patients.

Response: HHSC acknowledges the commenter's concerns related to access to care for Medicaid clients but disagrees that it will be affected by the rate change because the proposed payment methodology is anticipated to be cost neutral overall as explained in previous responses. AAs are expected to continue to provide healthcare to the Medicaid population. No changes were made in response to this comment.

Comment: One commenter supports adoption of the proposed amendment because the proposed amendment appropriately recognizes the roles of physician anesthesiologists and other directing physicians in the delivery of anesthesia care to Texas Medicaid patients/clients.

Response: HHSC understands this statement to be a comment in relation to the Anesthesia Care Team model to provide anesthesia services. No changes were made in response to this comment.

STATUTORY AUTHORITY

The rule amendment is adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; 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 the Texas Human Resources Code, Chapter 32.

§355.8221.Reimbursement Methodology.

(a) Effective for services delivered on and after November 1, 2017, covered anesthesia services provided by a certified registered nurse anesthetist (CRNA) or an anesthesiologist assistant (AA) under the supervision of an anesthesiologist are reimbursed the lesser of the CRNA's or AA's billed charges or 50 percent of the calculated payment for a supervised anesthesia service. For example, if the calculated payment for a supervised anesthesia service is $100, the payment to the CRNA or AA would be $50.

(b) Effective for services delivered on and after November 1, 2017, covered anesthesia services provided by a CRNA under the supervision of a physician, other than an anesthesiologist, are reimbursed at 92 percent of the calculated payment for an anesthesia service.

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 October 10, 2017.

TRD-201704076

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: October 30, 2017

Proposal publication date: August 4, 2017

For further information, please call: (512) 707-6071