The Texas Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new Chapter 17, Preadmission Screening and Resident Review (PASRR), consisting of Subchapter A, §§17.101 - 17.104, concerning general provisions; Subchapter B, §§17.201 - 17.203, concerning screening, expedited admission, and resident review; Subchapter C, §§17.301 - 17.303, concerning responsibilities; and Subchapter D, §17.401, concerning vendor payment, with changes to the proposed text as published in the February 22, 2013, issue of the Texas Register (38 TexReg 1128).

The new sections are adopted to address issues identified by the Centers for Medicare and Medicaid Services (CMS) regarding the Preadmission Screening and Resident Review (PASRR) program and to redesign the PASRR program in general. In December 2009, the Health and Human Services Commission (HHSC) received a letter from CMS outlining areas in which the current PASRR program in Texas does not appear to meet federal requirements. Specifically, CMS cited three issues. First, PASRR Level II evaluations must include a recommendation of specific specialized services needed by an individual prior to admission to a nursing facility. Second, nursing facility staff must not perform PASRR Level II evaluations. Third, the state must describe its resident review processes, specifically the roles and responsibilities of the state mental health and intellectual disability authorities, when the individual has a significant change in status.

The agency deleted definitions of "dementia," "disposition," "ongoing services," and "readmission," because the terms are not used in the chapter.

The agency also specifies that specialized services must be initiated within 30 days after those services are identified in the comprehensive care plan in the LTC Online Portal, as described in §§17.201(d)(6), 17.202(a)(4)(F), 17.203(f)(2)(F),17.302(5), and 17.303(12).

Non-substantive editorial changes were made throughout the chapter to improve the clarity of the rule.

DADS received written comments from two licensed nurses, Disability Rights Texas, and Texas Hospital Association. A summary of the comments and the responses follows.

Comment: Concerning the definition of "admitting nursing facility" in §17.102, a commenter recommended substituting "comprehensive care plan" for "specialized services plan."

Response: The agency deleted this definition as the term is not used in the chapter.

Comment: Concerning the definition of "alternate placement" in §17.102, a commenter recommended adding "community" services and "or if an inpatient setting is necessary, then a setting other than a nursing facility."

Response: The agency believes the rule reflects the federal regulations and allows the service coordinator or case manager to locate and secure services, including community services, that the individual desires and to locate appropriate settings other than a nursing facility. No changes were made in response to the comment.

Comment: Concerning the definition of "comprehensive care plan" in §17.102, a commenter referenced 42 CFR §483.136 and recommended adding "in order to ensure the provision of active treatment"; 15 specific domains to be addressed by the plan; and subparagraph "(E) identification of the strengths, needs, preferences, capabilities, and interests of the individual and consideration of ways to meet them in an integrated community setting."

Response: This definition is based on "comprehensive care plan" as defined in §19.101(22) and explained in §19.802 in Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification). The plan is based on the federal nursing facility requirement for participation at 42 CFR §483.20(k). 42 CFR §483.136 addresses data collected for and characteristics considered for the PASRR evaluation and determination rather than the nursing facility comprehensive care plan. No changes were made in response to this comment.

Comment: Concerning the definition of "developmental disability" in §17.102, one commenter recommended striking the phrase "As defined in the Developmental Disabilities Assistance and Bill of Rights Act of 2000, Section 102(8)" and adding to subparagraph (E) "included in 42 U.S.C. §15002."

Response: The agency notes that it uses the term "developmental disability" to mean "related condition," as defined in 42 CFR §435.1010. The definition has been modified to reflect that meaning.

Comment: Concerning the definition of "interdisciplinary team (IDT) meeting" in §17.102, one commenter recommended adding "(A)(iii) service coordinator" and striking "(B)(ii) at the discretion of the local authority" explaining that the service coordinator should always be part of the team, as should any current providers, including specialized services providers.

Response: The agency agrees this definition could be made clearer and has revised this definition to reflect that a representative of the local authority will always be included in the required team members needed for participation in IDT meetings. The agency also clarified that the team will always include a registered nurse from the nursing facility and that the meeting may include other persons specified by the individual, LAR, nursing facility, or local authority as appropriate.

Comment: Concerning the definition of "Level I screening" in §17.102, one commenter recommended substituting "who are suspected of having" for "with an indication of" and adding "and referring those individuals to a local authority."

Response: The agency agrees with the recommended changes in part. The agency agrees to the recommended changes to this definition and has substituted "suspected of having" for "with an indication of" to be consistent with the terminology in the Code of Federal Regulations. The agency made this change throughout the chapter. The agency declines to make the second recommended change. The definition of the Level I screening does not include the referral because that is an action that results from the Level I screening.

Comment: Concerning the definition of "PASRR Level II evaluation" in §17.102, one commenter recommended adding "(1) if an individual's needs can be met in a community setting, or (2) if the individual's needs can be met only through inpatient care, whether a nursing facility or other setting is appropriate, and (3) the specialized services necessary to meet the individual's need" and striking "alternate placement options for an individual and the need for care in a nursing facility or other setting such as an ICF."

Response: The agency believes the current definition addresses the elements that are considered for the Level II evaluation. The definition is not intended to dictate the order of the elements evaluated. No changes were made in response to the comment.

Comment: One commenter recommended adding a definition for "related condition" to clarify that, pursuant to 42 CFR §483.102(b)(3)(ii), PASRR regulations apply equally to individuals with a "related condition" as defined by 42 CFR §435.1010.

Response: The agency declines to make the requested change because the term "related condition" is not used in the chapter. However, the definition of "developmental disability" has been changed to reflect that it means "related condition," as defined in 42 CFR §435.1010.

Comment: Concerning the definition of "respite" in §17.102, one commenter recommended adding "for a period not to exceed 14 days."

Response: The agency has made the suggested change to the definition to reflect that respite services do not exceed 14 days.

Comment: One commenter recommended adding a definition of "service coordinator" to ensure the local authority's responsibilities for oversight and facilitation of the comprehensive care plan are fulfilled by delegation to one individual who assumes responsibility for transition planning and timely provision of services.

Response: The agency agrees and has added definitions of "service coordinator" and "service coordination."

Comment: Concerning the definition of "specialized services" in §17.102, one commenter recommended adding "For individuals with intellectual or developmental disabilities, specialized services means the services which combined with services provided by the nursing facility or other providers, constitutes a program of active treatment. The determination of the need for specialized services for individuals with an intellectual and/or developmental disability must be based upon an assessment." The commenter listed 15 specific domains to be included in the assessment.

Response: The agency believes the definition of specialized services in the proposed PASRR rules is appropriate because it lists the services that the state provides. However, the agency has changed the definition to make it clear which services are available from a nursing facility, which are available to individuals with mental illness, and which are available to individuals with intellectual or developmental disabilities. The revised definition also clarifies that vocational services are not available statewide.

Comment: Concerning §17.103, a commenter requested adding the ability to request a fair hearing to contest the outcome of a Level I determination, the outcome of the PASRR Level II evaluation or a decrease in, termination of, or a failure to provide specialized services.

Response: The agency declines to add the requested language. The Level I screening does not include a determination. The federal regulations do not require the state to offer an appeal of a Level I screening. The agency has modified the rule to clarify the scope of an appeal of a PASRR determination. The rule addresses the appeal of a PASRR determination.

Comment: Concerning §17.103, a commenter requested adding additional information to clarify that a request for a fair hearing does not affect a hospital's ability to discharge an individual pending the hearing.

Response: The rules do not require continued hospital services while a hearing regarding a denial of nursing facility services is pending. No changes were made in response to this comment.

Comment: Concerning §17.104(b), a commenter recommended substituting the term "exempted hospital discharge" for the criteria in subsection (b)(3) and "expedited admission" in subsection (b)(4) and to omit "and evaluation" in subsection (b).

Response: The agency agrees with the requested change in part. The agency agrees to use the term "exempted hospital discharge" because it is a defined term. However, the agency declines to add "expedited admission" to the section because expedited admission is not an exception to the PASRR Level II evaluation; it is a categorical PASRR Level II determination. In addition, the term "evaluation" was replaced with "PASRR determination" because the subsection lists exceptions for a nursing facility to admit someone before having a PASRR Level II evaluation and PASRR determination.

Comment: Concerning §17.201, two commenters stated the seven day time frame to complete and enter the PASRR evaluation is too long. The commenters feel this will backlog hospital emergency rooms and underutilize scarce resources of medical beds without reimbursement in densely populated areas and delay treatment and services for individuals in rural areas.

Response: The agency disagrees with the comment. DADS believe the PASRR process timelines address these concerns. Federal regulations require the PASRR determination to be made 7-9 working days from referral. The preamble to the federal regulations addressed this concern, noting that delays can be minimized in cases where the need for screening is identified at or near the time of hospital admission and requested immediately. The agency also has addressed this concern through the expedited admissions rule. No changes were made in response to this comment.

Comment: Concerning §17.201 a commenter requested a change to the timeframe from 72 hours to 48 hours for completion of the PASRR Level II evaluation. The commenter also suggested a requirement for the local authority to enter the Level I screening and PASRR Level II evaluation into the LTC Online Portal within 96 hours of receiving notice from the hospital.

Response: The agency declines to make the requested change because it believes a local authority requires more than 48 hours to complete a PASRR Level II evaluation. The agency has specified that the local authority must meet with the individual, review medical records, and communicate with collateral contacts within 72 hours after receiving notification from the referring entity. Within five days after receiving notification from the referring entity, the local authority must complete the PASRR Level II evaluation and within seven days after receiving notification from the referring entity, the local authority must enter data from the PASRR Level II evaluation. The agency believes these timelines give a local authority adequate time to meet its responsibilities, while requiring completion of a PASRR Level II evaluation in a timely manner.

Comment: Concerning §17.201(c), a commenter stated that the local authority should remain responsible for ensuring the nursing facility's compliance with the timeline and requested adding a requirement for the local authority to contact the nursing facility directly to expedite resolution of the individual's placement if the nursing facility has not responded within 48 hours of the local authority entering the information into the LTC Online Portal.

Response: A referring entity may contact a nursing facility to inquire about the status of a pending admission. The agency declines to make it a local authority's responsibility to contact a nursing facility under the circumstances described. No changes were made in response to this comment.

Comment: Concerning §17.201, a commenter stated that the failure of a local authority to fulfill its obligations will have an adverse impact on patients and hospitals and requested rules that will address what happens if a local authority does not meet its obligations.

Response: The agency will continue existing local authority survey and audit processes to achieve compliance with program rules. A local authority's failure to perform will be addressed in its contract with DADS. No changes were made in response to the comment.

Comment: Concerning §17.201(b)(2), a commenter requested adding "(1) determine if the individual's needs can be met in a community setting; or (2) if the individual's needs can be met only through inpatient care, whether a nursing facility or other setting is appropriate; and (3) the specialized services needed to meet the individual's needs." A commenter requested adding "(3) explore the availability of alternative settings taking into consideration all services and programs for which the individual is eligible and based upon the reviewer's knowledge and experience with community services"; and "(4) discuss community alternatives identified in (3) above with the individual and LAR, if any, and explain the benefits and appropriateness of alternative settings."

Response: The agency believes the purpose of the PASRR Level II evaluation is explained in other sections of the rules and in the form that will be used to conduct the evaluation. The agency has, however, made additional changes to clarify the preadmission screening process.

Comment: Concerning §17.201(d)(1) and (2), a commenter requested adding "within 5 days" and "within 10 days".

Response: Time frames for IDT meetings and the comprehensive care plan are stated in §19.801 and §19.802, in Chapter 19 of this title (relating to Nursing Facility Requirements for Licensure and Medicaid Certification). The agency has, however, added time frames to subsection (d)(1) and (2) that are consistent with the time frames in Chapter 19 of this title. A similar change was made to §17.202(a)(4) and to §17.203 (f)(2).

Comment: Concerning §17.202, one commenter stated expedited admission categories should be limited to severe physical illness, terminal illness, delirium, or coma. The commenter feels the PASRR evaluation should be completed prior to admission for categories of respite, convalescent care, and emergency protective services.

Response: The agency disagrees with the comment. The expedited admission categories included in the rule are based on the categorical admissions provided for in 42 CFR §483.130(d) and have been approved by CMS. The agency believes the categories are appropriate for expedited admission to ensure these individuals will continue to receive the care necessary to their well-being. No changes were made in response to this comment.

Comment: Concerning §17.202, a commenter requested adding expedited admission criteria for delirium, convalescent care, and respite to subsection (a) to clarify when a hospital can discharge an individual.

Response: The agency has modified the rule to clarify that expedited admission categories of convalescent care, terminal illness, and severe physical illness are addressed in subsection (a). The categories of delirium, emergency protective services, respite, and coma are addressed in subsection (b). The agency also clarified when a referring entity can discharge an individual under subsection (b).

Comment: Concerning §17.202, a commenter stated that for certain categories of expedited admission, such as convalescent care, emergency protective services, or respite, the diversionary intent of PASRR is thwarted by carving out an exception to the general rule that a PASRR Level II evaluation must be done prior to admission to a nursing facility. The commenter also suggested a 72-hour time period from referral for a local authority to complete a PASRR Level II evaluation.

Response: The agency notes that the categories are allowed in federal regulations, are approved by CMS, and are included to ensure that individuals have access to care necessary for their well-being. However, the agency has amended subsection (a)(2) to make it consistent with §17.201(b).

Comment: Concerning §17.202(a)(3), a commenter requested substituting "local authority" for "nursing facility"; revising subparagraph (A) to require a local authority to check the LTC Online Portal and review the list of specialized services to determine if specialized services can be provided or arranged; striking subparagraph (A)(i); and adding new subparagraph (A)(i) and (ii).

Response: The agency declines to make the change as requested. It appears that the commenter may have been reviewing a different version of the proposed rules than was published; therefore it is difficult to respond to these comments. As published, proposed subsection (a) requires the nursing facility to check the LTC Online Portal to determine if specialized services can be provided or arranged. This is necessary for the nursing facility to determine whether it will admit the individual. There is no clause (i) under §17.202(a)(3)(A) in the proposed rule. The commenter's additions would transfer responsibility for approving admission to the person who completes the PASRR Level II evaluation and determination, which is not the intent of the rule.

Comment: Concerning §17.202(a)(4)(D) and (E), a commenter requested striking "must identify"; adding "provides services of lesser intensity than specialized services," "identified in the comprehensive care plan," and "identifies those services"; and adding "The local authority provides or arranges for the specialized services identified by the IDT and included in the comprehensive care plan."

Response: The commenter may have reviewed a rule draft other than the published proposed rule. The agency declines to add the requested language because §17.202(a)(4) appropriately sets out nursing facility and local authority responsibilities with regard to specialized services. The agency clarified in subparagraph (D) that the nursing facility identifies specialized services for which it is responsible in the comprehensive care plan. The agency declines to add the requested language regarding services of lesser intensity because the PASRR rules are intended to address specialized services resulting from the PASRR Level II evaluation rather than all services delivered to an individual.

Comment: Concerning §17.202(a)(5), a commenter suggested adding "and to ensure the provision of active treatment" at the end of the rule.

Response: The agency declines to add the requested phrase because this provision addresses monitoring of specialized services identified in the comprehensive care plan. There are no additional services to be monitored in this context. The agency revised the rule to clarify that DADS monitors local authority delivery of specialized services to an individual having an intellectual or developmental disability and nursing facility delivery of specialized services and DSHS monitors local authority delivery of specialized services to an individual having mental illness.

Comment: Concerning §17.203(c)(1), a commenter requested adding "or is determined appropriate for an alternate placement unless the individual objects."

Response: The agency declines to add the requested language. The individual will be informed about alternate placement and the rule provides for active individual choice and local authority action for alternate placement.

Comment: Concerning §17.203(e)(1) and (2), a commenter requested that the local authority make the determination that the nursing facility can provide or arrange for recommended specialized services.

Response: The agency declines to make the requested change, as each nursing facility must determine whether it can meet an individual's needs and admit the individual.

Comment: Concerning §17.203(e)(2)(A) and (B), a commenter requested adding a 5-day time frame for a nursing facility to contact the local authority to participate in the IDT and adding a 10-day time frame for IDT participation.

Response: As previously stated in the response to a comment about §17.201(b)(1) and (2), the agency has added time frames in subparagraphs (A) and (B) that are consistent with the time frames in Chapter 19.

Comment: Concerning §17.203(e)(2)(C), (D), and (E), a commenter suggested revising the structure of subparagraph (C) and adding "transition services"; adding "services of lesser intensity than specialized services and the specialized services identified in the comprehensive care plan" to subparagraph (D); and requiring the local authority to provide or arrange for transition services and specialized services rather than the nursing facility and the local authority providing or arranging for specialized services in subparagraph (E).

Response: The agency declines to make the requested change to subparagraph (C) because the nursing facility must include the specialized services in the nursing facility comprehensive care plan. The agency declines to make the requested changes to subparagraphs (D) and (E) because the rule appropriately sets out nursing facility and local authority responsibilities with regard to specialized services.

Comment: Concerning §17.203(e)(3), a commenter suggested adding "provision of specialized services and non-specialized services provided by the nursing facility and any other providers to ensure that those services, taken together, constitute a program of active treatment."

Response: The agency declines to add the requested phrase because this provision addresses monitoring of specialized services identified in the comprehensive care plan. There are no additional services to be monitored in this context. The agency revised the rule to clarify that DADS monitors local authority delivery of specialized services to an individual having an intellectual or developmental disability and nursing facility delivery of specialized services, and DSHS monitors local authority delivery of specialized services to an individual having mental illness.

Comment: Concerning §17.301(1)(A), a commenter requested the Level 1 screening be completed by the local authority when the referring entity is a family member or law enforcement.

Response: The nursing facility is the first point of contact for the referring entity. It is less confusing for the nursing facility to complete the Level I screening rather than directing the referring entity to contact the local authority. No changes were made in response to the comment.

Comment: Concerning §17.302(1) and (6), a commenter reiterated the comment on §17.202 regarding limits to expedited admission categories.

Response: The expedited admission categories included in the rule are based on the categorical admissions provided for in 42 CFR §483.130(d) and have been approved by CMS. The agency believes the categories are appropriate for expedited admission to ensure these individuals will continue to receive the care necessary to their well-being. No changes were made in response to this comment.

Comment: Concerning §17.303, a commenter requested a change to the timeframe from 72 hours to 48 hours for completion of the PASRR Level II evaluation. The commenter also suggested a requirement for the local authority to enter the Level I screening and PASRR Level II evaluation into the LTC Online Portal within 96 hours of receiving notice from the hospital.

Response: The agency declines to make the requested change because it believes a local authority requires more than 48 hours to complete a PASRR Level II evaluation. The agency has specified that the local authority must meet with the individual review medical records, and communicate with collateral contacts within 72 hours after receiving notification from the referring entity or LTC Online Portal. Within five days after receiving notification from the referring entity, the local authority must complete the PASRR Level II evaluation and within seven days after receiving notification from the referring entity or LTC Online Portal, the local authority must enter data from the PASRR Level II evaluation. The agency believes these timelines give a local authority adequate time to meet its responsibilities, while requiring completion of a PASRR Level II evaluation in a timely manner.

Comment: Concerning §17.303(1) and (2) a commenter recommended re-numbering paragraphs for accuracy. A commenter also recommended adding that the PASRR Level II evaluation assessment is to be completed prior to admission except as noted in §17.104 and that the Level I screening can be completed by the local authority if the referring entity is a family member or law enforcement.

Response: The paragraphs are numbered correctly. The requirement for completing the PASRR Level II evaluation prior to admission in §17.303(1) is in §17.201(b)(1) and (2). Additionally, because the nursing facility is the first point of contact for the referring entity, the agency believes the nursing facility should complete the Level I screening rather than directing the referring entity to contact the local authority. No changes were made in response to the comment.

Comment: Concerning §17.303(4) and (6), a commenter recommended deleting expedited admission categories of respite, convalescent care, and delirium and adding that the local authority make a determination of appropriateness for alternate placement if not otherwise opposed by the individual or LAR.

Response: The expedited admission categories included in the rule are based on the categorical admissions provided for in 42 CFR §483.130(d) and have been approved by CMS. The agency believes the categories are appropriate for expedited admission to ensure these individuals will continue to receive the care necessary to their well-being. The rule appropriately sets out the need to make a referral for alternate placement. No changes were made in response to the comment.

Comment: Concerning §17.303, a commenter suggested new paragraphs (7) and (8) describing all activities of the alternate placement discussion and transition and adding a requirement for integration of an individual's comprehensive care plan and facilitation of transition planning.

Response: The agency notes that local authority responsibilities are addressed in Subchapter B of this chapter. Comprehensive care plan and nursing facility services are addressed in Chapter 19 of this title. However, the agency revised the rule by adding a requirement that the local authority facilitate transition planning.

Comment: Concerning §17.303(11), a commenter recommended adding "identified by the IDT."

Response: The IDT determines specialized services included in the comprehensive care plan and this information will be entered in the LTC Online Portal. No changes were made in response to the comment.

Comment: A commenter requested that the agency provide a 6-month implementation period from the date the rules are adopted and final for training, linkage development, and other steps necessary to implement the rules.

Response: The agencies will provide training to referring entities, local authorities, and nursing facilities prior to the implementation date to ensure they are aware, informed, and prepared to institute the program changes. No changes were made in response to the comment.

Subchapter A. GENERAL PROVISIONS

Subchapter Z. PREADMISSION SCREENING AND RESIDENT REVIEW (PASARR)