TITLE 40. SOCIAL SERVICES AND ASSISTANCE

PART 1. DEPARTMENT OF AGING AND DISABILITY SERVICES

CHAPTER 30. MEDICAID HOSPICE PROGRAM

SUBCHAPTER B. ELIGIBILITY REQUIREMENTS

40 TAC §30.14

The Executive Commissioner of the Health and Human Services Commission (HHSC) adopts on an emergency basis in Title 40 Texas Administrative Code, Chapter 30, Medicaid Hospice Program, an amendment to §30.14(e), concerning an emergency rule in response to COVID-19 in order to allow face-to-face reassessments for recertification to be conducted as a telemedicine medical service. As authorized by Texas Government Code §2001.034, the Commission may adopt an emergency rule without prior notice or hearing upon finding that an imminent peril to the public health, safety, or welfare requires adoption on fewer than 30 days' notice. Emergency rules adopted under Texas Government Code §2001.034, may be effective for not longer than 120 days and may be renewed for not longer than 60 days.

BACKGROUND AND PURPOSE

The purpose of the emergency rulemaking is to support the Governor's March 13, 2020, proclamation certifying that the COVID-19 virus poses an imminent threat of disaster in the state and declaring a state of disaster for all counties in Texas. In this proclamation, the Governor authorized the use of all available resources of state government and of political subdivisions that are reasonably necessary to cope with this disaster and directed that government entities and businesses would continue providing essential services. The Commission accordingly finds that an imminent peril to the public health, safety, and welfare of the state requires immediate adoption of this emergency amendment to §30.14, concerning Certification of Terminal Illness and Record Maintenance.

To protect individuals receiving Medicaid hospice services and the public health, safety, and welfare of the state during the COVID-19 pandemic, HHSC is adopting an emergency amendment to §30.14(e) to allow a hospice physician or hospice advanced practice registered nurse to conduct a face-to-face assessment of an individual as a telemedicine medical service, as defined in Texas Government Code §531.001(8), if the sole purpose of the assessment is for hospice recertification. This amendment will reduce the risk of transmitting COVID-19.

STATUTORY AUTHORITY

This emergency amendment is adopted under Texas Government Code §2001.034, §531.0055, and §531.021 and under Human Resources Code §32.021. Texas Government Code §2001.034 authorizes the adoption of emergency rules without prior notice and hearing, if an agency finds that an imminent peril to the public health, safety, or welfare requires adoption of a rule on fewer than 30 days' notice. Texas Government Code §531.0055 authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system. Texas Government Code §531.021, gives HHSC the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program. Texas Human Resources Code §32.021 authorizes the Executive Commissioner of HHSC to adopt rules governing the proper and efficient operation of the Medicaid program.

The amendment implements Texas Government Code §531.0055 and §531.021 and Texas Human Resources Code §32.021.

§30.14.Certification of Terminal Illness and Record Maintenance.

(a) Timing of certification.

(1) If a hospice does not obtain the written certification statement required by paragraph (2) of this subsection within two days after a period of care begins, the hospice must obtain an oral certification statement that meets the requirements of this section no later than two days after the period begins. A period of care is described in §30.12 of this subchapter (relating to Duration of Hospice Care Coverage: Election Periods).

(2) For the initial period of care, a hospice must obtain a signed and dated Medicaid Hospice Program Physician Certification of Terminal Illness form that meets the requirements of this section before the hospice submits an initial request for payment, but no more than 15 days before the period begins. For a period of care after the initial period, a hospice must obtain a signed and dated Medicaid Hospice Program Physician Certification of Terminal Illness form that meets the requirements of this section before the period expires, but no more than 15 days before the period begins.

(b) Content of certification statement. An oral or written certification statement must:

(1) specify that an individual's prognosis is for a life expectancy of six months or less if the terminal illness runs its normal course;

(2) include a narrative that clearly identifies the reasons the individual is considered terminally ill; and

(3) include clinical information that supports the medical prognosis, which may be provided orally for an oral certification statement and must be provided with accompanying documentation for a written certification statement.

(c) Sources of certification. The hospice must obtain a written or oral certification statement required by subsection (a) of this section from:

(1) for the initial period of care:

(A) the medical director of the hospice or the physician who is a member of the hospice interdisciplinary group; and

(B) the individual's attending physician, if the individual has an attending physician; and

(2) for a period of care after the initial period, a physician described in paragraph (1)(A) of this subsection.

(d) Documentation.

(1) After the hospice receives a certification statement, hospice staff must:

(A) for an oral certification statement:

(i) make an entry that meets the requirements of paragraph (2) of this subsection in the individual's hospice record; and

(ii) if the individual resides in a nursing facility or an intermediate care facility for individuals with an intellectual disability or related conditions (ICF/IID), notify the nursing facility or the ICF/IID of the oral certification; and

(B) for a written certification statement:

(i) file the statement and supporting documentation in the individual's hospice record; and

(ii) if the individual resides in a nursing facility or an ICF/IID, provide the nursing facility or the ICF/IID with a copy of the written certification.

(2) An entry made in an individual's hospice record in accordance with paragraph (1)(A)(i) of this subsection must include the name of the physician who made the oral certification, the clinical information that supports the prognosis, and the date the hospice received the certification. The hospice staff person who makes the entry into the individual's hospice record must sign and date the entry.

(e) Face-to-face assessment.

(1) To determine an individual's continued eligibility for hospice care for a period of care after the initial period, as described in §30.12 of this subchapter, a hospice physician or hospice advanced practice registered nurse must perform a face-to-face assessment of the individual.

(A) [(1)] The hospice must ensure a face-to-face assessment is performed before each subsequent period of care begins, but no more than 30 days before the period begins.

(B) [(2)] For an individual who is dually eligible for Medicare and Medicaid, a Medicare face-to-face encounter satisfies the requirement for a face-to-face assessment required by this subsection.

(2) During a public health disaster, as defined in Texas Health and Safety Code §81.003, if the face-to-face assessment conducted by a hospice physician or hospice advanced practice registered nurse is for the sole purpose of hospice recertification, the assessment may occur as a telemedicine medical service as defined in Texas Government Code §531.001(8). Conducting the recertification as a telemedicine medical service is the preferred option if it is available and the hospice physician or advance practice registered nurse determines it can be used to certify the individual's terminal diagnosis and life expectancy.

(f) Records.

(1) The hospice must retain in an individual's hospice record documentation to support the services provided by the hospice, including:

(A) the documentation required by subsection (d) of this section;

(B) a current Minimum Data Set assessment if the individual resides in a nursing facility, or a level-of-need assessment if the individual resides in an ICF/IID; and

(C) documentation of a face-to-face assessment or a face-to-face encounter described in subsection (e) of this section.

(2) If an individual resides in a nursing facility or ICF/IID, the hospice must provide a copy of the documentation described in paragraph (1) of this subsection to the nursing facility or ICF/IID in which the individual resides.

The agency certifies that legal counsel has reviewed the emergency adoption and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on July 18, 2020.

TRD-202002953

Karen Ray

Chief Counsel

Department of Aging and Disability Services

Effective date: July 18, 2020

Expiration date: November 14, 2020

For further information, please call: (512) 407-3269