PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 354. MEDICAID HEALTH SERVICES
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) adopts in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, Subchapter A, Division 33, amendments to §354.1430, concerning Definitions; §354.1432, concerning Telemedicine and Telehealth Benefits and Limitations; §354.1434, concerning Home Telemonitoring Benefits and Limitations; and new §354.1435, concerning Provision of Behavioral Health Services through an Audio-Only Platform; and §354.1436, concerning Provision of Non-behavioral Health Services Using an Audio-only Platform; and in Subchapter M, Division 1, amendments to §354.2603, concerning Definitions; §354.2607, concerning Assessment and Service Authorization; and §354.2609, concerning Recovery/Treatment Planning, Recovery/Treatment Plan Review, and Discharge Summary; in Division 2, amendments to §354.2655, concerning Mental Health Targeted Case Management Services; and §354.2657, concerning Documentation Requirements; and in Division 3, amendments to §354.2707, concerning Crisis Intervention Services; §354.2709, concerning Medication Training and Support Services; §354.2711, concerning Psychosocial Rehabilitative Services; and §354.2713, concerning Skills Training and Development Services.
Sections 354.1430, 354.1432, 354.1434, 354.1435, 354.1436, 354.2603, 354.2607, 354.2609, 354.2655, 354.2657, 354.2707, 354.2709, 354.2711, and 354.2713 are adopted without changes to the proposed text as published in the October 21, 2022, issue of the Texas Register (47 TexReg 6921). These rules will not be republished.
BACKGROUND AND JUSTIFICATION
The adopted rules are necessary to implement Texas Government Code §531.02161 that was added by House Bill (H.B.) 4, 87th Legislature, Regular Session, 2021. Texas Government Code §531.02161 requires HHSC to develop and implement policies and procedures for the provision of healthcare services delivered via telemedicine and telehealth, including certain behavioral health services using an audio-only platform, by implementing changes in state law.
The adopted rules also implement Texas Government Code, §531.001, amended by Senate Bill (S.B.) 1107, 85th Legislature, Regular Session, 2017 to standardize definitions for telemedicine medical services and telehealth services; Texas Government Code, §531.001 and §531.0217(d), amended by S.B. 670, 86th Legislature, Regular Session, 2019 to require reimbursement parity, to prevent denial of services solely because an in-person medical service did not occur and to not limit a physician's choice of platform; and Texas Government Code, §531.02164 (c-1), added by H.B. 1063, 86th Legislature, Regular Session, 2019 to allow home telemonitoring services for persons with diabetes, heart disease, and other specific conditions.
COMMENTS
The 31-day comment period ended November 21, 2022.
During this period, HHSC received comments regarding the proposed rules from three stakeholders, including Association of Persons Affected by Addiction (APAA), Teaching Hospitals of Texas (THOT), and Texas Medical Association (TMA). A summary of comments relating to the rules and HHSC responses follows.
Comment: APAA commented on a requirement in the behavioral health medical policies for the delivery of certain behavioral health services via synchronous audio-only technology.
Response: HHSC declines to make changes in response to this comment because the comment is related to the behavioral health medical policies HHSC posted for public comment in June 2022 and were implemented on September 1, 2022. Inquiries about a current benefit should be submitted to the Medical and Dental Benefit Policy general mailbox at: medicaidbenefitrequest@hhsc.state.tx.us
Comment: THOT requested clarification that only clinically effective and cost-effective telemedicine and telehealth services, as determined and published by HHSC in the Texas Medicaid Provider Procedures Manual (TMPPM), are covered.
Response: HHSC believes the commenter is referring to proposed §354.1432(4) and (6) regarding conditions for reimbursement applicable to telemedicine medical services and telehealth services. As described in the proposed rules, covered services that HHSC has determined are clinically effective and cost-effective when provided as a telemedicine medical service or as a telehealth service must be designated for reimbursement by HHSC and can be found in the TMPPM. HHSC declines to make changes in response to this comment.
Comment: THOT recommended that the rules describing telemedicine and telehealth coverage include a requirement for HHSC to provide an opportunity for stakeholder review and input as part of its process for determining covered services. This could be done through notifications and attendance at the Medical Care Advisory Committee and E-Health Advisory Committee meetings.
Response: HHSC declines to make the suggested changes in response to this comment. The current process for changing Medicaid medical and dental policies includes an opportunity for stakeholder review and comment. Policy changes, to include designating a code as payable for services related to the provision of certain Medicaid covered services in an audio-only format, will be published in the TMPPM. As is currently the process, prior to publication in the TMPPM, all Medicaid policy changes will be posted for public comment on the HHSC Medicaid Medical and Dental Policies website.
Additionally, HHSC provides advance notices for health plans and providers of impending updates to policy.
Comment: THOT recommended that HHSC include, in the published final rules or through the TMPPM, evaluation and management services codes 99441, 99442, and 99443 for established patients provided as audio-only.
Response: HHSC declines to make the suggested changes in the published final rules or through the TMPPM because it is within HHSC's discretion to determine which healthcare services are cost effective and clinically effective when provided as a telemedicine medical service or a telehealth service, including the use of an audio-only platform. As such, HHSC continues to evaluate the audio-only services codes 99441, 99442 and 99443.
Comment: THOT requested HHSC approve additional clinically appropriate and cost-effective audio-only services, e.g., prenatal group sessions and some chronic care management services, as soon as possible and with appropriate stakeholder input.
Response: HHSC thanks THOT for their comment and will continue to evaluate audio only, evidence-based services for possible inclusion in the Texas Medicaid service array.
Comment: TMA recommended revising §354.2607(b)(4) to clarify that the documentation requirements of a Qualified Mental Health Professional-Community Services (QMHP-CS) are intended to only include existing, properly diagnosed intellectual/developmental disabilities, and that a QMHP-CS is not qualified to determine a diagnosis.
Response: HHSC declines to amend §354.2607(b)(4) as requested, since it is out of scope for this rule project. However, HHSC may address the requested change in a future rule project to ensure the public is provided the opportunity to comment.
Comment: TMA recommended revising proposed §354.2607(c)(1) to be gender neutral. TMA also recommended revising the same rule to expressly tie the scope-of-licensure requirement for Licensed Practitioners of the Healing Arts (LPHAs) to the Texas Occupations Code for clarity.
Response: HHSC declines to amend §354.2607(c)(1) as requested, since it is out of scope for this rule project. However, HHSC may address the requested change in a future rule project to ensure the public is provided the opportunity to comment.
Comment: TMA recommended revising proposed §354.2607(c)(3), to replace the word "person" with "LPHA," since the former has broad meaning that can include a business.
Response: HHSC declines to amend §354.2607(c)(3) since it is out of scope for this rule project. However, HHSC may address the requested change in a future rule project to ensure the public is provided the opportunity to comment.
Comment: TMA expressed concern about the use of "medical necessity" in proposed §354.2607(e)(2), stating that, aside from a physician, the other professionals who meet the definition of a LPHA are not qualified or legally authorized to determine medical necessity.
Response: HHSC declines to amend §354.2607(e)(2) as requested since this is out of scope for this rule project. The language in §354.2607(e)(2) stems from existing language in previous subsection (c)(2) of §354.2607. This rule project merely reorganizes that language into a different subsection and does not change the substance of subsection (c)(2) (now renumbered as subsection (e)(2)). More information is available in Section 5 in the Behavioral Health and Case Management Services Handbook in the TMPPM. However, HHSC may address the requested change in a future rule project to ensure the public is provided the opportunity to comment.
Comment: TMA requested clarification of the phrase in proposed §354.2607(e)(3) "physical health care needs, as determined by a physician, physician assistant, or advanced practice registered nurse," to ensure the rule does not facilitate any unintended violations of Texas' scope of licensure laws.
Specifically, the TMA asked if this statement refers to the determination of a formal medical diagnosis.
Response: HHSC declines to amend §354.2607(e)(3) as requested since this is out of scope for this rule project. Inquiries about current benefit language should be submitted to the Medical and Dental Benefit Policy general mailbox at: medicaidbenefitrequest@hhsc.state.tx.us
SUBCHAPTER A. PURCHASED HEALTH SERVICES
DIVISION 33. ADVANCED TELECOMMUNICATIONS SERVICES
1 TAC §§354.1430, 354.1432, 354.1434 - 354.1436
STATUTORY AUTHORITY
The amendments and new sections are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 3, 2023.
TRD-202300023
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 23, 2023
Proposal publication date: October 21, 2022
For further information, please call: (512) 438-4651
DIVISION 1. GENERAL PROVISIONS
1 TAC §§354.2603, 354.2607, 354.2609
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 3, 2023.
TRD-202300024
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 23, 2023
Proposal publication date: October 21, 2022
For further information, please call: (512) 438-4651
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 3, 2023.
TRD-202300025
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 23, 2023
Proposal publication date: October 21, 2022
For further information, please call: (512) 438-4651
1 TAC §§354.2707, 354.2709, 354.2711, 354.2713
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on January 3, 2023.
TRD-202300026
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 23, 2023
Proposal publication date: October 21, 2022
For further information, please call: (512) 438-4651