TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 355. REIMBURSEMENT RATES

The Texas Health and Human Services Commission (HHSC) adopts 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 adopts the repeal and new §355.8021, concerning Reimbursement for Home Health Services. HHSC adopts 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.

New §355.8023, the repeal and new §355.8021, and the amendments to §§355.310, 355.7001, 355.8085, and 355.8581 are adopted without changes to the proposed text published in the March 24, 2017, issue of the Texas Register (42 TexReg 1303), and the text of the rules will not be republished. New §355.8097 and amended §355.8441 are adopted with changes to the proposed text published in the March 24, 2017, issue of the Texas Register (42 TexReg 1303) and will be republished.

Section 355.8097 (Reimbursement Methodology for Physical, Occupational, and Speech Therapy) is adopted with changes based on the 2018-19 General Appropriations Act, Senate Bill 1, 85th Legislature, Regular Session, 2017 (Article II, HHSC, Rider 218) that directed HHSC to phase in the reductions for therapy assistant services. Rider 218 pends implementation of reductions related to services provided by therapy assistants until December 1, 2017, and September 1, 2018. A reduction of rates paid for services delivered by therapy assistants to 85 percent of the rate paid to a licensed therapist will be effective December 1, 2017, and a further reduction to 70 percent of the rate paid to a licensed therapist will be effective September 1, 2018. As a result of Rider 218, §355.8097 was amended to add effective dates of December 1, 2017, and September 1, 2018, with the respective percentage reduction as noted above.

BACKGROUND AND JUSTIFICATION

The new rules §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 changes, changes for the following rules are administrative updates to rule references and formatting clean-up: §§355.8581, 355.7001, and 355.310.

The 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 new §355.8097 outlines the current reimbursement methodology for therapy services and defines the reimbursement percentage for services provided by therapy assistants at a percentage 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.

The 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.

COMMENTS

The 30-day comment period for the new, repealed, and amended rules ended April 24, 2017. During the comment period, HHSC received comments from:

A to Z Pediatric Therapy

Action Therapy Services

All about Kids Home Health

Angel Kisses Occupational Therapy

Angels of Care

Anna's Speech Therapy Services, PLLC

Aptus Therapy Services

At Home Healthcare

Atlas Pediatric Therapy

Aveanna (PSA Healthcare)

Carousel Pediatrics

Child's Play Therapeutic Homecare

Circle of Care

Coalition for Nurses in Advanced Practice

Cole Health

Children's Health Home Care

Collab Therapeutic Services, LLC

Communication Circle

Communication Essentials

Communication Helpers of South Houston, Inc.

Cornerstone Pediatric Therapy

Countryside Therapy Group

Easter Seals

Epic Health Services

Gulf Coast Therapy Services

Himmel Home Health

Houston Pediatric Therapy

Independent Therapy Providers Association (IPTA)

Jump Start Physical Therapy

KidsCare Therapy

Kids Developmental Clinic

Kids Developmental Therapy

Life Skills Therapy

Lifespan Assessment Speech Therapy

Little Angels Therapy

Little Engine Home Care

Medcare Pediatric Therapy and Nursing

Mercy Kids Rehab

Milestone Therapy Services

Pediatric Occupational Therapy Services

Premier Pediatric Therapy

Sage Care Therapy

Small Hands, Big Hearts Pediatric Therapy Management

Speech Therapy Unlimited

Step by Step Home Care

Texas Association of Home Care and Hospice

Texas Occupational Therapy Association

Texas Physical Therapy Association

Texas Society of Anesthesiologists

Texas Speech-Language and Hearing Association

Therapy Circles

Tyler Junior College Occupational Therapy Assistant Program Staff

Below is a summary of the comments received and HHSC’s responses. No changes were made to the proposed rules as a result of the comments.

Related to §355.310, concerning Reimbursement Methodology for Customized Equipment.

Comment: One commenter expressed the belief that this rule change would negatively impact the ability of individuals who depend on powered mobility equipment to lead their daily lives because the rule change would make the equipment more difficult to obtain. The commenter suggested Medicaid coverage of powered adaptive wheelchairs is inappropriately subjected to the whims of budgetary factors.

Response: HHSC disagrees with this comment because the rule does not change the eligibility requirements for wheeled mobility equipment.

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

Comment: One commenter suggested combining §355.7001(b)(3) and §355.7001(b)(4) because certified nurse midwives are advanced practice registered nurses (APRNs). The commenter also recommended adding APRNs to §355.7001(f) as eligible providers because APRNs might provide telemedicine in a school-based setting or potentially be a child’s primary care provider.

Response: HHSC disagrees that the changes suggested by the commenter are necessary or appropriate. Subsections (b)(3) and (b)(4) in §355.7001 are separated because they each reference a different reimbursement methodology specific to APRNs (§355.8281) or certified nurse midwives (§355.8161). The reimbursement methodology for APRNs is summarized in rule §355.8281, Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists; therefore, HHSC believes it is unnecessary to add APRNs to rule §355.7001.

Related to §355.8021, concerning Reimbursement Methodology for Home Health Services

Comment: Several commenters opposed the language in §355.8021(c) because it seems too broad and subjective. The commenters requested clarifying language.

Response: HHSC understands the concerns related to §355.8021(c). Prior to implementation of any new Medicaid reimbursement rate, a public rate hearing would be held to collect comments on the proposed rate. This is an important step in the Medicaid reimbursement rate process that allows the State to receive additional input on proposals prior to implementation and, if required, adjust the proposal. In addition, new Medicaid reimbursement rates require submission and approval of a State Plan Amendment to the Centers for Medicare and Medicaid (CMS). Subsection (c) in §355.8021 provides flexibility to implement reimbursement rate changes as required to maintain access to care for services where other listed methodologies may not be sufficient.

Related to Rule §355.8085, concerning Reimbursement Methodology for Physicians and Other Practitioners.

Comment: Several commenters requested language related to surveying the cost of provider services be added back to §355.8085(a) in place of new language that includes an analysis of fees paid by commercial insurance.

Response: HHSC does not collect certified cost reports from acute care therapy providers; therefore, this language was removed to reflect current practice. HHSC will retain the reference to commercial insurance because it typically pays more than Medicaid for the same service.

Comment: Two commenters indicated they believed CMS pricing for anesthesia should not be used as a basis for rate determination. The commenters also supported consideration of commercial rates for anesthesia before other options.

Response: HHSC disagrees that CMS pricing Medicare should not be a basis for rate determination in Medicaid. Both Medicare and Medicaid rates are dependent on approval from CMS; therefore, the Medicare rates are a valid benchmark for Medicaid rate comparisons. A reference to commercial rates is included in §355.8085(2)(c) but is not considered before other options because Medicaid typically reimburses at a percentage of the Medicare rate as approved in the State Plan.

Comment: One commenter suggested including APRNs to the list of eligible providers in §355.8085(b), because physicians are not the only practitioners administering drugs in offices, clinics, or other settings. The commenter noted that the Texas Department of Insurance has also changed two of its pharmacy benefits, 28 TAC §21.3031(c)(3)(C) and §21.3032(c)(2), to read "physician- or practitioner-administered setting." The commenter also recommends similar revisions to §355.8085(e) and (e)(6) to change "physician-administered drugs" to "physician- or practitioner-administered drugs."

Response: The reimbursement methodology for APRNs is summarized in rule §355.8281, Reimbursement Methodology for Nurse Practitioners and Clinical Nurse Specialists; therefore, HHSC believes it is unnecessary to add APRNs to rule §355.8085. HHSC chooses to use "physician-administered drugs" to maintain consistency with terminology used Section 1927 of the Social Security Act.

Related to §355.8097, concerning Reimbursement for Physical, Occupational, and Speech Therapy Services.

Comment: Several commenters stated there is a shortage of qualified therapists across the country. The commenters further stated therapy assistants are vital members of the therapy workforce in the state of Texas and play a valuable role in the provision of therapy services to Medicaid clients.

Response: HHSC agrees with the commenters statements. The proposed therapy assistant reimbursement rate is not intended to diminish the importance of therapy assistants but to fulfill HHSC’s responsibility to provide payments that are consistent with efficiency, economy, and quality of care.

Comment: Several commenters stated they believed the 70 percent reimbursement for therapy assistants does not account for supervision, time, or travel for therapy assistants. Other commenters similarly expressed a belief that the 70 percent reimbursement for therapy assistants does not sufficiently account for administrative costs, policy and regulatory requirements, claims processing, referral tracking, securing physician signatures, and searching for authorizations.

Response: HHSC disagrees that the proposed rates do not sufficiently account for overhead and other expenses as described by the commenters. The 70 percent reimbursement for therapy assistants is based on the salary ratio between therapists and therapy assistants as reported by the United States Bureau of Labor and Statistics, and the existing reimbursement rate for therapists is sufficient to account for a reasonable margin for administrative expenses.

Comment: Several commenters stated there is no difference between the service provided by a therapy assistant and a therapist, so they should not be reimbursed differently.

Response: HHSC disagrees with the commenters’ statement because there is a difference in both education and scope of practice between therapy assistants and therapists. Reimbursing therapists and therapy assistants at different rates on this basis is reflective of reimbursement rates for other types of medical providers in Texas Medicaid. For example, physician assistants are reimbursed at 92 percent of the rate paid to a physician for the same service; and licensed clinical social workers, licensed professional counselors, and licensed marriage and family therapists are reimbursed at 70 percent of the rate paid to psychologists or psychiatrists for the same service.

Comment: Several commenters suggested therapy assistants be reimbursed at 92 percent of the rate reimbursed for licensed therapists, similar to the methodology for physicians and physician assistants.

Response: HHSC was unable to find a justifiable basis for reimbursing therapy assistants at 92 percent of the therapists’ rate when researching either the national salary data for therapy services or other states’ Medicaid rates that supported the salary data. The commenters did not submit additional documentation to support the position that therapy assistants should be reimbursed at 92 percent of the therapists’ rate.

Comment: Several commenters requested a study of the UB modifier implemented May 1, 2016, denoting services provided by therapy assistants to be conducted prior to implementation of the 70 percent reimbursement methodology for therapy assistants.

Response: HHSC reviewed claims data for the UB modifier to identify services provided by therapy assistants for dates of service May 1, 2016, to July 31, 2016, to estimate the proportion of services provided by therapy assistants prior to publication of the proposed rule.

Comment: Several commenters theorized that reducing therapy assistant reimbursement to 70 percent of the published rate for therapists would result in reduced access to care due to one or more of the following claims: (1) reduced ability to hire therapy assistants in rural areas leading to a disparate negative impact on the availability of services to rural populations; (2) reduced supply of bilingual therapists who are difficult to find, in high demand, and play a pivotal role in meeting the needs of a large segment of the Medicaid pediatric therapy population; (3) therapy assistants currently make 15 percent below the national average of the wages for the combination of occupational therapy, physical therapy, and speech therapy assistants and a 30 percent reduction would force many to seek employment elsewhere or leave the industry completely; and (4) waiting lists for those waiting to receive services may increase. Several parents also raised concerns about maintaining existing access to care if therapy assistants are reimbursed less than therapists.

Response: Both HHSC and CMS have statutory responsibility to provide payments that are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under Medicaid at least to the extent that such care and services are available to the general population in the geographic area. HHSC routinely monitors access to care. HHSC will continue to monitor for access to care issues in all areas of the state following adoption of the rule and will address any issues as they arise.

Comment: Several commenters requested adding language in §355.8097(b) that would allow HHSC to review fees for therapy services based surveying the cost of provider services rather than the language in §355.8097(b)(3) allowing HHSC to review fees for therapy services based on the analysis of fees paid by commercial insurers.

Response: HHSC will retain the reference to commercial insurance because it typically pays more than Medicaid for the same service. In addition, HHSC does not collect certified cost reports from acute care therapy providers; therefore, surveying the cost of provider services is not an option available for use as a basis for reimbursement rates.

Comment: Several commenters requested HHSC strike the language in §355.8097(b)(3) concerning review of what commercial insurers pay in the private market, stating it is not a comparable methodology.

Response: HHSC disagrees with commenters’ statement. Commercial insurance reimburses for physical, occupational, and speech therapy services. HHSC did not receive any evidence supporting the position that therapy received by a child with private insurance is not comparable to the same type of therapy received by a child with Medicaid.

Comment: Several commenters focused on issues related to services provided in managed care. The commenters stated their contracts with managed care organization (MCOs) are lower than the published Medicaid rates and that a further reduction would not be sustainable.

Response: HHSC does not believe these comments are relevant to the proposed rule. The rule applies to reimbursement for services provided in fee-for-service Medicaid. Further, HHSC does not dictate the contractual terms between Medicaid MCOs and their subcontracted providers. This negotiation process is a confidential matter between the MCO and the provider.

Comment: One commenter asserted that because Medicare-certified home health agencies and Medicare-certified Comprehensive Outpatient Rehabilitation Facilities and Outpatient Rehabilitation Facilities (CORFs/ORFs) participate in Texas Medicaid, Medicare requirements for therapy assistants, including all billing-related requirements, must be met. The commenter further asserted that Medicare certification prohibits payment for services provided by speech therapy assistants even if licensed by the state.

Response: HHSC interprets the comment to be related to conditions for participation for home health agencies, which is beyond the scope of the proposed rule.

Comment: One commenter stated it was difficult to assess the overall negative impact of this rule change without the details of other proposed therapy policy initiatives because only a summary of these other initiatives had been released at the time of public comment on the proposed rule.

Response: HHSC understands this statement to be a comment on the rulemaking process rather than on the proposed rule change.

Comment: One commenter indicated that they understand the need for inclusion of other data sources or methodologies as outlined in proposed §355.8097(c) but raised a concern that unless the methodologies applied are those commonly used in the healthcare industry, this exception to typical rate methodology provides an unchecked avenue for excessive rates that jeopardize federal matching funds and unintentionally alter the healthcare markets.

Response: HHSC understands the concerns related to §355.8097(c). Prior to implementation of any new Medicaid reimbursement rate, a public rate hearing would be held to collect comments on the proposed rate. This is an important step in the Medicaid reimbursement rate process that allows the State to receive additional input on proposals prior to implementation and, if required, adjust the proposal. In addition, new Medicaid reimbursement rates require submission and approval of a State Plan Amendment to CMS. Subsection (c) in §355.8097, provides flexibility to implement reimbursement rate changes as required to maintain access to care for services where other listed methodologies may not be sufficient.

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

Comment: One commenter requested HHSC strike the language in §355.8441 concerning review of what commercial insurers pay in the private market because it is not a comparable methodology and recommends replacement with "a survey of costs reported by Medicaid providers."

Response: HHSC does not collect certified cost reports from acute care EPSDT providers; therefore, this language was removed to reflect current practice. HHSC will retain the reference to commercial insurance because it typically pays more than Medicaid for the same service.

Related to Rule §355.8581, concerning Reimbursement Methodology for Family Planning Services.

Comment: One commenter suggested amending "physician-administered" in §355.8581(a)(1) to read, "physician- or practitioner-administered."

Response: HHSC chooses to use "physician-administered drugs" to maintain consistency with terminology used Section 1927 of the Social Security Act.

SUBCHAPTER C. REIMBURSEMENT METHODOLOGY FOR NURSING FACILITIES

1 TAC §355.310

STATUTORY AUTHORITY

The 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.

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 September 19, 2017.

TRD-201703677

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


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

1 TAC §355.7001

STATUTORY AUTHORITY

The 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.

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 September 19, 2017.

TRD-201703678

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 2. MEDICAID HOME HEALTH PROGRAM

1 TAC §355.8021

STATUTORY AUTHORITY

The repeal 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.

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 September 19, 2017.

TRD-201703679

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


1 TAC §355.8021, §355.8023

STATUTORY AUTHORITY

The new rules are 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.

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 September 19, 2017.

TRD-201703680

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


DIVISION 5. GENERAL ADMINISTRATION

1 TAC §355.8085, §355.8097

STATUTORY AUTHORITY

The amendment and new rule are 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.

§355.8097.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 85 percent of the fee paid to a licensed therapists for the same service provided on and after December 1, 2017 and at 70 percent of the fee paid to the licensed therapist for the same service provided on or after September 1, 2018.

(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 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 September 19, 2017.

TRD-201703681

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


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

1 TAC §355.8441

STATUTORY AUTHORITY

The 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.

§355.8441.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 of this subchapter (relating to Reimbursement Methodology for 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 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), 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 of this subchapter;

(B) HHAs, under §355.8097 of this subchapter;

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

(B) HHAs, under §355.8097 of this subchapter;

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

(B) HHAs, under §355.8097 of this subchapter;

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

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

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

(8) Nutritional services provided by licensed dietitians are reimbursed the lesser of the provider's billed charges or fees determined by HHSC in accordance with §355.8085 of this subchapter.

(9) Providers are reimbursed for the administration of immunizations the lesser of the provider's billed charges or fees determined by HHSC in accordance with §355.8085 of this subchapter.

(10) Vaccines are reimbursed the lesser of the provider's billed charges or the fees determined by HHSC in accordance with §355.8085 of this subchapter.

(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.

(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) 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) Eligible dental providers must submit an annual cost report based on the federal fiscal year. HHSC will provide the cost report form with detailed instructions to enrolled dental providers. Cost reports are due to HHSC 180 days after the close of the applicable reporting period. Providers must certify that expenditures submitted on the cost report have not been claimed on any other cost report.

(ii) Payments to eligible providers will be based on cost and payment data reported on the cost report along with supporting documentation. As defined in the cost report and detailed instructions, a cost-to-billed-charges ratio will be used to calculate total allowable cost. The total allowable cost minus any payments will be the UC payment due to the provider. The UC payment is calculated yearly and is contingent on receipt of funds as specified in clause (iii) of this subparagraph.

(iii) The funding for the state share of UC payments 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) UC payments are limited by the publicly owned dental provider pool aggregate limit as determined by §355.8201 of this subchapter (relating to Waiver Payments to Hospitals for Uncompensated Care).

(v) If actual UC costs for all eligible publicly owned dental providers is greater than the publicly owned dental provider pool aggregate limit as described in clause (iv) of this subparagraph, then HHSC will reduce the UC payments for all eligible publicly owned dental providers proportionately.

(vi) If a UC 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.

(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 clause (i) of this subparagraph to establish Medicaid fees for physicians and other practitioners when HHSC determines that those methodologies are unreasonable or insufficient.

(iii) 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 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 September 19, 2017.

TRD-201703682

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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


DIVISION 30. FAMILY PLANNING

1 TAC §355.8581

STATUTORY AUTHORITY

The 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.

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 September 19, 2017.

TRD-201703683

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: December 1, 2017

Proposal publication date: March 24, 2017

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