PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
CHAPTER 353. MEDICAID MANAGED CARE
SUBCHAPTER R. TELECOMMUNICATIONS IN MANAGED CARE SERVICE COORDINATION AND ASSESSMENTS
The Texas Health and Human Services Commission (HHSC) adopts new §353.1501, concerning Purpose; §353.1502, concerning Definitions; §353.1503, concerning Use of Telecommunications in Assessments; §353.1504, concerning Use of Telecommunications in Service Coordination and Service Management; §353.1505, concerning Additional Requirements for Assessments and Service Coordination in STAR+PLUS and STAR Kids; and §353.1506, concerning Additional Requirements for Assessments and Service Management.
Sections 353.1502 and 353.1504 are adopted without changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8811). These rules will not be republished.
Sections 353.1501, 353.1503, 353.1505, and 353.1506 are adopted with changes to the proposed text as published in the December 30, 2022, issue of the Texas Register (47 TexReg 8811). These rules will be republished.
BACKGROUND AND JUSTIFICATION
The adopted rules are necessary to implement Texas Government Code, §533.039, added by House Bill (H.B.) 4, 87th Texas Legislature, Regular Session, 2021. Section 533.039 requires HHSC to adopt rules to establish policies and procedures that allow a Medicaid managed care organization (MCO) to conduct assessments and provide care coordination services using telecommunications and information technology (IT), to the extent permitted by federal law.
Assessments conducted for managed care members enrolled in a home and community-based services (HCBS) waiver or for services such as attendant care (i.e., personal assistance services and personal care services) and Community First Choice are not medical services. Assessments are performed by Medicaid MCOs. Federal law requires states to conduct annual assessments to determine eligibility for HCBS waivers. Assessments are also required to determine a member's need for state plan services such as attendant care and Community First Choice.
HHSC consulted with the Centers for Medicare & Medicaid Services (CMS) for guidance related to the implementation of H.B. 4. CMS advised that HHSC must deploy an assessment method that is adequate to develop a person-centered plan that meets the requirements in Title 42 Code of Federal Regulations (42 CFR) §441.301(c)(2). CMS further advised that HHSC must meet the health and welfare assurances in 42 CFR §441.302 and determine if its assessment tools require in-person visual observations.
To implement Texas Government Code, §533.039, and to ensure compliance with federal regulations, the adopted rules: (1) establish requirements for the use of telecommunications in Medicaid managed care for service coordination and assessments conducted by MCOs that contract with HHSC; (2) require MCOs to conduct in-person initial assessments and annual reassessments using the HHSC-developed tools in STAR+PLUS, STAR Kids, and STAR Health, for waiver services and services requiring a functional assessment, such as personal assistance services, personal care services, and Community First Choice; (3) require a change in condition assessment that requires or potentially requires a change in the Resource Utilization Group (RUG) level to be conducted in person; (4) for change in condition assessments that do not require or potentially require a change in the RUG level, allow an MCO to offer members a choice of audio-visual communication in place of in-person, if the MCO obtains and documents member or member legally authorized representative (LAR) verbal consent; and (5) for limited circumstances, allow MCOs to submit, in a manner and format prescribed by HHSC, an exceptions policy for required in-person assessments for approval by HHSC.
In addition, the adopted rules: (1) allow an MCO to offer members in STAR+PLUS and STAR Kids a choice of audio-visual communication for service coordination in place of an in-person visit, if no assessment is occurring; (2) specify the requirements for audio-visual service coordination, including the responsibility of the MCO to obtain and document member or member LAR verbal consent for the use of audio-visual communication during a service coordination visit; (3) allow the STAR Health MCO to offer a choice of audio-visual or telephonic communication service management in place of an in-person visit if no assessment is occurring; (4) prohibit the use of IT, including text or email, as the sole means of conducting an assessment or service coordination, but allow their use to supplement audio-visual or in-person assessments and service coordination visits; (5) as outlined in Texas Government Code, §533.039, allow HHSC to require an MCO to discontinue service coordination or assessments using telecommunications on a case-by-case basis, if HHSC determines that the discontinuation is in the best interest of the member; (6) contain additional requirements related to assessments and service management in STAR Health, similar to the requirements for STAR+PLUS and STAR Kids; and (7) require an MCO to honor a member's request in STAR+PLUS, STAR Kids, and STAR Health for in-person service coordination or assessments unless HHSC issues direction to MCOs during a declared state of disaster that service coordination or assessments must be conducted using audio-only communication or audio-visual communication.
In §353.1501, the adopted rules also establish July 1, 2023, as the MCO compliance date for the rules contained in Subchapter R to allow sufficient time for MCOs to implement the rules.
COMMENTS
The 31-day comment period ended January 30, 2023.
During this period and the public hearing held on January 11, 2023, HHSC received comments regarding the proposed rules from eleven commenters, including the Texas Association of Health Plans (TAHP) (two commenters), the Texas Association for Home Care and Hospice (TAHCH) (two commenters), the Texas e-Health Alliance (TeHA), Red River Health Care Systems, Inc., and Videra Health. In addition, HHSC received comments from four Medicaid MCO employees including a manager of service coordinators for STAR Kids and two service coordinators.
A summary of comments relating to the rules and HHSC's responses follows.
Comment: TAHP commented that the proposed rules lacked the intended flexibility of H.B. 4 to allow assessments and service coordination to be done by telehealth and require unnecessary in-person assessments that conflict with H.B. 4. Similarly, TeHA is concerned that the proposed rules overly limit the use of telecommunications. TAHP stated H.B. 4 requires, to the extent permitted by federal law, that HHSC improve access to care by allowing MCOs to do assessments and provide care coordination services using telecommunications or IT. TAHP recommended eliminating any in-person assessments beyond the initial waiver eligibility determination for the HCBS waiver population. TAHP further commented that H.B. 4 contains no consideration for initial assessments, annual reassessments, or RUG changes as a factor for in-person assessments and instead, the legislature expressly defers to MCOs. TAHP noted, and agrees with, the acknowledgement from the Texas Legislature that there are situations where virtual assessments are not appropriate but indicated that the legislation requires MCOs to make this determination based on an individual's request.
Response: HHSC respectfully disagrees with the comments and declines to make changes to the rules in response to these comments. HHSC is permitting flexibility within the adopted rules to the extent allowed by statute. Texas Government Code Section 533.039(b) directs HHSC to establish policies and procedures by rule that allow a Medicaid MCO to conduct assessments and provide care coordination services using telecommunications or IT to the extent permitted by federal law. In establishing these policies and procedures, Texas Government Code §533.039(b) requires HHSC to consider several factors and does not require HHSC to defer to MCOs to make this determination based on an individual's request. Factors include "whether the commission determines using the telecommunications or information technology is appropriate under the circumstances." In addition, it is an HHSC responsibility as the single state Medicaid agency to establish processes to determine eligibility for HCBS waivers, and assessments are a part of the eligibility determination. HHSC is also responsible for ensuring Medicaid members have access to appropriate services and meeting the health and welfare assurances in 42 CFR §441.302. HHSC determined that it is not aligned with federal regulations, or appropriate to use telecommunications or IT to conduct an initial assessment or annual reassessment that determines waiver eligibility or a member's functional needs. Several components of the assessment tools require in-person observation, including observation of the member's home environment to document and address potential risks and member needs. Appropriate assessment requires an in-person view to fully see the details of the living space, condition and size of durable medical equipment, and other in-home supports, and to observe an individual's abilities for activities of daily living and instrumental activities of daily living, and other factors.
Comment: TAHP commented there is no federal law or CMS guidance provided to HHSC prohibiting the use of telehealth for assessments and service coordination.
Response: HHSC declines making changes in response to this comment. HHSC agrees that Title XIX of the Social Security Act does not expressly prohibit the use of telecommunications for assessments and care coordination services. However, CMS provided guidance to HHSC instructing the agency to determine if its assessment tools require in-person visual observations to assure health and welfare of waiver participants. This guidance is based on federal regulations at 42 CFR § 441.301 and §441.302 that implement Section 1915(c) of the Social Security Act regarding HCBS waivers. HHSC determined that the assessments tools require in-person visual observations.
Comment: TAHP and the TeHA said there is a lack of evidence that conducting these assessments and visits via telehealth jeopardizes the safety and welfare of Texas Medicaid recipients, and many members may be at greater risk if in-person visits are required. TAHP asserted that HHSC has an additional oversight tool to ensure member safety, because the HHSC Managed Care Long-term Services and Supports Utilization Review staff complete utilization reviews annually in STAR+PLUS HCBS and the STAR Kids Medically Dependent Children Program (MDCP) to determine if MCOs are appropriately assessing and enrolling members in services.
Response: HHSC respectfully disagrees with the commenters and declines to make changes in response to this comment. Prior to the COVID-19 public health emergency (PHE), all assessments and face-to-face service coordination were conducted in-person. The COVID-19 PHE accelerated widespread use of virtual assessments in a short period of time. There is a lack of studies comparing client outcomes between in-person assessments and virtual assessments. The HHSC Medicaid and CHIP Services Utilization Review (UR) team does not validate assessments. The UR team completes URs annually to determine if MCOs are utilizing the correct assessment forms, completing assessments in a timely manner, enrolling members in waiver services, and providing needed services. The UR team pulls a statistically valid sample to review, several months after the assessment was conducted.
Comment: TAHP stated that HHSC references certain questions in the assessment tools that require in-person assessments, including evaluating the current condition of durable medical equipment, determining the member's ability to hear and understand others, and assessing current wounds. TAHP further commented that it is unclear why audiology and wound care services can be provided via telemedicine and in fact, several physical, occupational, and speech therapy services can be a service approved for telemedicine under H.B. 4, but a member cannot be assessed for non-clinical purposes using audio-visual capabilities.
Response: HHSC respectfully disagrees with the commenter and declines to make changes in response to this comment. HHSC does not allow remote delivery of audiology and wound care services in fee-for-service Medicaid, as detailed in the Texas Medicaid Provider Procedures Manual. The only physical, occupational, and speech therapy services that can be delivered remotely are those where the service can still be clinically effective if delivered remotely and in compliance with an individual provider's license. In addition, these services are not equivalent to the assessments required to establish Medicaid eligibility for waiver services.
Comment: TAHP and TeHA commented that HHSC did not allow flexibility provided by H.B. 4 for members or families to decide how they access care and recommended that members and their families should be able to make the decision whether assessments and service coordination are conducted in-person. An MCO employee commented that HHSC should allow families the option to choose telehealth delivery, and that this would support family choice to restrict visitors for medically fragile members.
Response: HHSC appreciates the comment and agrees that members should have a choice between in-person and audio-visual communication for service coordination and assessments that are appropriate for telehealth delivery, but HHSC declines to make changes in response to this comment. It is an HHSC responsibility as the single state Medicaid agency to establish processes to determine eligibility for HCBS waivers, to ensure people have access to appropriate services, and to meet the health and welfare assurances in 42 CFR §441.302, and this responsibility cannot be delegated to the member.
Comment: TAHP and TeHA commented that in-person requirements exacerbate the nursing workforce shortage. An MCO service coordinator commented that they are still able to meet members needs at home, and hope that HHSC will consider how their productivity has increased. TAHP noted that telehealth delivery reduces gaps in care, supports continuity of care, promotes the triple aim, and reduces the cost of health care. TeHA also noted that telehealth improves timeliness of assessment, and that in-person requirements increase costs for the state.
Response: HHSC acknowledges that remote delivery of all assessments may have the potential to reduce staff costs for some MCOs and alleviate nursing workforce challenges facing MCOs. However, this potential does not outweigh the responsibility for HHSC to ensure the delivery of appropriate assessments that comply with federal regulations and ensure members receive appropriate services. HHSC declines to make changes in response to this comment.
Comment: TAHCH requested that the language "without the presence of a member" in §353.1503(a)(5), (b)(4), and (c)(5) be clarified to mean the presence of the member must be in person.
Response: HHSC agrees with this request and revised §353.1503(a)(5), (b)(4), and (c)(5) by adding "in-person."
Comment: TAHP and an MCO employee expressed concern that some families do not want an in-person assessment and families who decline an in-person assessment will lose their services. Both commenters expressed a desire for members to be able to request an exception to the in-person requirement.
Response: Federal regulations require that assessments be conducted annually to determine a member's eligibility for waiver programs such as STAR+PLUS HCBS and MDCP or services such as Community First Choice. Members cannot be determined eligible for these programs and services without an assessment. These rules require that the annual assessments be conducted in person. However, in response to the commenters' concerns HHSC revised §353.1503 to add paragraph (8) in subsection (a), paragraph (7) in subsection (b) and paragraph (8) in subsection (c) to establish a process to allow MCOs, for limited circumstances, to submit an exceptions policy for required in-person assessments for approval by HHSC.
Comment: TAHP commented the rules conflict with the Administrative Procedures Act when it "(1) contravenes specific statutory language; (2) runs counter to the general objectives of the underlying [statute]; or (3) imposes additional burdens, conditions, or restrictions in excess of or inconsistent with the relevant statutory provisions." TAHP continued that Texas Government Code §533.039(e) states that a Medicaid managed care organization shall, for a recipient of HCBS for which the commission requires in-person visits, conduct: (1) at least one in-person visit with the recipient to make an initial waiver eligibility determination; and (2) additional in-person visits with the recipient if necessary, as determined by the managed care organization." TAHP stated that if an MCO determines, pursuant to §533.039(e)(2), that an in-person visit is not necessary to conduct an assessment, then the requirements in these proposed rules would directly contravene the specific statutory language.
Response: HHSC respectfully disagrees with the commenter that the rules contravene Texas Government Code §533.039(e)(2) and declines to make changes in response to this comment. HHSC is furthering the objectives of this statute by allowing appropriate assessments and service coordination to be delivered remotely that were not allowed prior to the PHE and would have ended with the PHE if not for this legislation. Further, HHSC is permitting flexibility within the rules to the extent allowed by federal law and implementing regulations as directed by the statute.
Comment: TeHA and TAHP commented that the COVID-19 pandemic made it clear that telehealth is an effective and safe tool that can be used not only for medical care, but for service coordination and assessments in the Medicaid program. MCOs have learned that telehealth can reach vulnerable patient groups, and can improve access for patients with transportation, parking, or cost barriers. Telehealth can also expand access to care, reduce disease exposures, and reduce patient demand at facilities.
Response: HHSC appreciates the comment and agrees that there are many benefits to telehealth such as expanding access, reaching vulnerable groups, and reducing patient demand at facilities. However, using telehealth for clinical care that a member would have to travel to receive at a facility, such as physician visits, is different from using it to assess a member's eligibility for waiver and other long term services and supports using prescribed tools in the member's home. The COVID-19 PHE accelerated widespread use of virtual assessments in a short period of time. There is a lack of studies comparing client outcomes between in-person assessments and virtual assessments. Several components of the assessment tools require in-person observation, including observation of the member's home environment to document and address potential risks and member needs. HHSC declines to make changes in response to this comment.
Comment: TAHP suggested that HHSC adjust the definition of "covered services" in §353.1502(8) to include only those services that are medically necessary based on the federal requirement.
Response: HHSC respectfully disagrees and declines to make this change to the definition of "covered services" because the definition mirrors the definition currently found in 1 TAC §353.2 (relating to Definitions).
Comment: TAHP commented that the rules should clarify that MCOs should document the member's verbal approval to use audio-visual communication in their own systems, as this is the least administratively burdensome method to capture member approvals and would not require the creation of new processes.
Response: HHSC agrees with the commenter but declines to make changes in response to this comment. Sections 353.1505 and 353.1506 already allow MCOs to use their discretion on how to document verbal consent, but the MCOs must be able to produce documentation of verbal consent for audit and compliance purposes.
Comment: An MCO service coordinator asked who will provide the personal protection equipment (PPE), citing costs and protection for nursing staff. Another service coordinator expressed concerns about communicable diseases such as COVID and gun violence with a return to in-person assessments.
Response: HHSC acknowledges the commenters concerns but declines to make changes in response to this comment. It is the responsibility of the MCOs to address workplace safety concerns and provide PPE for their employees as appropriate.
Comment: TAHCH commented that overall, TAHCH supports the use of telecommunications when appropriate in Medicaid managed care for service coordination and assessments conducted by MCOs. However, conducting all assessments and service coordination activities via telecommunications for Medicaid members has not proved entirely valuable as recently implemented. TAHCH commented in support of in-person assessments for initial assessments and reassessments to ensure a more accurate assessment picture and improve the quality and accuracy of the patient's needs. TAHCH asserted that without in-person assessments, basic assessment techniques that include observation are missed, and providers report that clients are appealing decisions more than in the past.
Response: HHSC appreciates the comment.
Comment: TAHCH cited significant concerns related to §353.1504(a)(8) that requires MCOs to provide service coordination in accordance with §353.609 of this chapter (relating to Service Coordination). TAHCH supports the regulatory language in this rule regarding coordination of care between MCOs and providers. However, TAHCH cited concerns with MCO service coordination delivery, including an urgent need for improvement in communication between MCOs and providers. Other providers represented by TAHCH report working with good MCO service coordinators, but say they have an unreasonable client workload. In regard to administrative tasks, service coordinators may not contact the provider representative immediately, and often are unable to give a definitive answer to providers. TAHCH recommended requiring MCOs to conduct Interdisciplinary Team (IDT) meetings between the patient, provider, and MCO to drastically improve communication between MCOs and providers.
Response: HHSC appreciates the comment and agrees that IDT meetings help to improve communication and the coordination of a member's services. However, HHSC declines making changes to address IDT meeting requirements because making these changes are outside the scope of this project and will require additional analysis.
Comment: TAHCH recommended that §353.1505(a) include Health Insurance Portability and Accountability Act (HIPAA)-compliant language.
Response: HHSC agrees with this recommendation and revised §353.1505(a) and §353.1506(a) by adding "HIPAA-compliant."
Comment: TAHCH asked that MCOs be required to invite the member's informal supports, attendant, and provider agency representative when performing assessments.
RESPONSE: HHSC agrees with the commenter but declines to make changes because it is outside the scope of this project. However, MCOs must allow informal supports, attendants, and providers to be present during the assessment, as specified in the person-centered planning requirements in 42 CFR §441.301 and §441.450, if that is the member's choice.
Comment: TAHCH submitted a comment from a provider stating the MCOs are asking providers to ensure members answer their phones and are terminating services when the MCO cannot reach the member by phone. At times, the MCOs are making no home visit attempts.
Response: HHSC declines to make changes in response to this comment. During the PHE, HHSC implemented flexibilities to allow telephone assessments if in-person and telehealth are not feasible. MCOs must return to conducting initial assessments and annual reassessments in person for MDCP and STAR+PLUS HCBS waiver under the rules. Providers can submit specific managed care complaints by emailing HHSC at HPM_Complaints@hhsc.state.tx.us.
Comment: TAHCH and Red River Health Care Systems commented there are no consequences to the MCOs when they do not follow the rules. TAHCH cited examples of complaints, including failure to comply with IDT rules, failure to give complete and accurate authorizations, and failure of the MCO case managers to return the client's phone calls timely.
Response: HHSC declines to make changes in response to this comment. Providers can submit specific managed care complaints by emailing HPM_Complaints@hhsc.state.tx.us.
Comment: TAHCH submitted a comment from a provider asking why HHSC is not implementing audio-visual allowances in the Community Attendant Services (CAS) Program and the Family Care (FC) Program rather than catering to the failures of the MCOs. Red River Health Care Systems, Inc. reiterated this point for the CAS, FC and Primary Home Care (PHC) Programs.
Response: HHSC declines making changes in response to this comment. These rules address the H.B. 4 requirement to develop rules for the use of telecommunications in Medicaid managed care service coordination and assessments. The CAS, FC, and PHC Programs are fee-for-service programs that are not offered through Medicaid managed care.
Comment: Videra Health recommended that virtual assessments be allowed where clinical evidence demonstrates that it is an effective substitute for an in-person visit. The commenter stated that while they agree there are some situations where an in-person visit is warranted, they cited the Patient Health Questionnaire-9 and General Anxiety Disorder-7 as assessment tools that can be administered through automated technology with clinical evidence backing the efficacy. The commenter expressed concern that the rule would have a negative impact on patients and providers, would result in fewer patients being assessed, and would limit improved outcomes.
Response: HHSC respectfully disagrees and declines to make changes to the rule in response to this comment. The specific assessment tools referenced by the commenter are not the HHSC assessment tools that must be used to determine eligibility for HCBS waivers or functional needs.
Comment: Red River Health Care Systems, Inc. commented that all visits should be in person because MCOs are not sending representatives to see the member or meeting their needs. They commented that many clients have limited cell phone minutes, and that Medicaid clients are not being provided with equipment to conduct an appropriate assessment of the client's home surroundings and living conditions.
Response: HHSC appreciates the comment but respectfully declines to make changes to the rules in response to this comment. H.B. 4 requires HHSC to allow assessments and service coordination using telecommunications to the extent permitted by federal law. To protect the health and safety of members, the rules require in-person initial assessments, annual reassessments, and change in condition assessments affecting or potentially affecting the RUG level to be conducted in person. Under the rules, MCOs may offer members a choice of in-person or audio-visual communication for service coordination if no initial, annual reassessment, or change in condition assessment affecting or potentially affecting the RUG level is occurring. In addition, the rules allow MCOs to offer members a choice of audio-visual communication in place of an in-person change in condition assessment as long as the assessment does not require or potentially require a change in the RUG level. MCOs must ensure appropriate equipment and access are available at the remote location to enable a telehealth visit when authorized.
Comment: TAHCH provided a comment from a provider expressing that clients in rural communities have limited resources, live at the poverty level, and have only government issued phones with limited minutes. The provider asked if the MCO was going to reimburse the provider or provide a way for the client to use telecommunications. The provider further stated that their attendants do not have the resources to assist the client with the call. TAHCH provided a comment from another provider who stated that the MCOs will ask them to contact the client and let them know to answer a call from the MCO.
Response: HHSC acknowledges the commenters concerns but declines to make changes in response to this comment. MCOs will be required by contract to ensure that members have all resources needed for an effective audio-visual service coordination visit or assessment. For contractually required face-to-face service coordination, MCOs must give members a choice of in-person or audio-visual service coordination, unless an assessment is occurring during the visit in which case the visit must be done in person. Under the rules, most assessments, including waiver assessments and functional assessments, must be conducted in person.
Comment: One individual asked for clarification if a face-to-face visit is required for all "level 1, 2, and 3 members" once per year regardless of assessment type.
Response: All STAR Kids members must have at least one in-person assessment per year because the STAR Kids Screening and Assessment Instrument must be administered annually for all STAR Kids members regardless of service coordination level. STAR+PLUS Level 1 and 2 members must have at least one in-person service coordination visit per year, even if the member needs no assessments (e.g., Medical Necessity/Level of Care and functional assessments) during the year. Level 3 STAR+PLUS members are required by contract to receive two telephonic service coordination visits annually, and the adopted rules clarify at §353.1505(i) that when telephonic service coordination visits are authorized by contract, these visits may continue to be provided by telephonic communication. HHSC declines to make changes in response to this comment.
HHSC revised §353.1501 to establish July 1, 2023, as the date Medicaid MCOs must be fully compliant with the rules contained in Subchapter R. The revision allows MCOs sufficient time to implement the rules.
STATUTORY AUTHORITY
The 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, 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 act as the single state agency designated to administer the federal medical assistance program in Texas and to adopt rules and standards for program administration; and Texas Government Code §533.039(b) which directs HHSC, by rule, to establish policies and procedures allowing managed care organizations to conduct assessments and care coordination services using telecommunications or information technology.
§353.1501.Purpose.
This subchapter establishes requirements for the use of telecommunications in Medicaid managed care for service coordination and assessments conducted by managed care organizations (MCOs) contracted with the Texas Health and Human Services Commission. Medicaid MCOs must be fully compliant with the rules contained in this subchapter no later than July 1, 2023.
§353.1503.Use of Telecommunications in Assessments.
(a) STAR+PLUS.
(1) STAR+PLUS managed care organizations (MCOs) must conduct initial assessments and annual reassessments using HHSC-developed tools for STAR+PLUS HCBS Program eligibility in-person.
(2) STAR+PLUS MCOs must conduct all initial and annual assessments using HHSC-developed tools for functionally necessary covered services such as personal assistance services, Community First Choice services, and day activity and health services, in-person.
(3) Change in condition assessments that require or potentially require a change in the Resource Utilization Group (RUG) level must be conducted in-person.
(4) MCOs may offer to STAR+PLUS members a choice of audio-visual communication in place of in-person change in condition assessments, as long as the assessment does not require or potentially require a change in the RUG level.
(A) When an MCO conducts a change in condition assessment using audio-visual communication, verbal consent must be obtained and documented, and a HIPAA-compliant audio-visual communication product must be used.
(B) If verbal consent for audio-visual communication is not received, the MCO must use in-person communication.
(C) The MCO must inform members who utilize audio-visual communication for change in condition assessments that the member's services will be subject to the following:
(i) The MCO must monitor services for fraud, waste, and abuse.
(ii) The MCO must determine whether additional social services or supports are needed.
(iii) The MCO must ensure that verbal consent to use telecommunications is documented in writing.
(5) A STAR+PLUS MCO may not conduct an initial assessment, annual reassessment, or change in condition assessment without the in-person presence of the member.
(6) During a declared state of disaster, HHSC may issue direction to STAR+PLUS MCOs regarding whether initial, annual renewal, or change in condition assessments may be conducted through audio-visual or audio-only communication for STAR+PLUS members who reside in the area subject to the declared state of disaster.
(7) STAR+PLUS MCOs must adhere to §353.1153 of this chapter (relating to STAR+PLUS Home and Community Based Services (HCBS) Program) for STAR+PLUS assessments and service planning, and §353.1(c) of this chapter (relating to Purpose) regarding compliance with all terms of the contract with HHSC.
(8) For limited circumstances, STAR+PLUS MCOs may submit, in a manner and format prescribed by HHSC, an exceptions policy for required in-person assessments for approval by HHSC. The policy must be developed by the MCO's clinical staff, such as the Chief Medical Director or the Director's designee.
(b) STAR Kids.
(1) The STAR Kids MCO must administer the initial assessment and annual reassessments using the HHSC-developed STAR Kids assessment tool in-person.
(2) Change in condition assessments that require or potentially require a change in the RUG level must be conducted in-person.
(3) MCOs may offer STAR Kids members a choice of audio-visual communication in place of in-person change in condition assessments, as long as the assessment does not require or potentially require a change in the RUG level.
(A) When an MCO conducts a change in condition assessment using audio-visual communication, verbal consent must be obtained and documented, and a HIPAA-compliant audio-visual communication product must be used.
(B) If verbal consent for audio-visual communication is not received, the MCO must use in-person communication.
(C) The MCO must inform members who utilize audio-visual communication for change in condition assessments that the member's services will be subject to the following:
(i) The MCO must monitor services for fraud, waste, and abuse.
(ii) The MCO must determine whether additional social services or supports are needed.
(iii) The MCO must ensure that verbal consent to use telecommunications is documented in writing.
(4) A STAR Kids MCO may not conduct an assessment without the in-person presence of the member.
(5) During a declared state of disaster, HHSC may issue direction to STAR Kids MCOs regarding whether initial, annual renewal, or change in condition assessments may be conducted through audio-visual or audio-only communication for STAR Kids members who reside in the area subject to the declared state of disaster.
(6) STAR Kids MCOs must adhere to §353.1155 of this chapter (relating to Medically Dependent Children Program) for assessments and service planning, and §353.1(c) of this chapter regarding compliance with all terms of the contract with HHSC.
(7) For limited circumstances, STAR Kids MCOs may submit, in a manner and format prescribed by HHSC, an exceptions policy for required in-person assessments for approval by HHSC. The policy must be developed by the MCO's clinical staff, such as the Chief Medical Director or the Director's designee.
(c) STAR Health.
(1) The STAR Health MCO must administer the HHSC-developed assessment tool for initial Medically Dependent Children Program (MDCP) eligibility and annual reassessments in -person.
(2) The STAR Health MCO must conduct all initial and annual reassessments using HHSC-developed tools for functionally necessary covered services such as personal assistance services, personal care services, and Community First Choice services, in-person.
(3) Change in condition assessments that require or potentially require a change in the RUG level must be conducted in-person.
(4) MCOs may offer STAR Health members a choice of audio-visual communication in place of in-person change in condition assessments, as long as the assessment does not require or potentially require a change in the RUG level.
(A) When an MCO conducts a change in condition assessment using audio-visual communication, verbal consent must be obtained and documented, and a HIPAA-compliant audio-visual communication product must be used.
(B) If verbal consent for audio-visual communication is not received, the MCO must use in-person communication.
(C) The MCO must inform members who utilize audio-visual communication for change in condition assessments that the member's services will be subject to the following:
(i) The MCO must monitor services for fraud, waste, and abuse.
(ii) The MCO must determine whether additional social services or supports are needed.
(iii) The MCO must ensure that verbal consent to use telecommunications is documented in writing.
(5) A STAR Health MCO may not conduct an assessment without the in-person presence of the member.
(6) During a declared state of disaster, HHSC may issue direction to STAR Health MCOs regarding whether initial, annual renewal, or change in condition assessments may be conducted through audio-visual or audio-only communication for STAR Health members who reside in the area subject to the declared state of disaster.
(7) A STAR Health MCO must adhere to §353.1155 of this chapter for MDCP assessments and service planning, and §353.1(c) of this chapter regarding compliance with all terms of the contract with HHSC.
(8) For limited circumstances, a STAR Health MCO may submit, in a manner and format prescribed by HHSC, an exceptions policy for required in-person assessments for approval by HHSC. The policy must be developed by the MCO's clinical staff, such as the Chief Medical Director or the Director's designee.
§353.1505.Additional Requirements for Assessments and Service Coordination in STAR+PLUS and STAR Kids.
(a) Information technology, including HIPAA-compliant text or email, may supplement audio-visual communication or in-person assessments, but may not be used as the sole means of conducting an assessment or service coordination visit.
(b) When a managed care organization (MCO) conducts an assessment or service coordination visit using telecommunications, the MCO must:
(1) monitor the health care services provided to the recipient for evidence of fraud, waste, and abuse;
(2) determine whether additional social services or supports are needed;
(3) document verbal consent to use telecommunications; and
(4) adhere to HIPAA, including the use of a HIPAA-compliant audio-visual communication product.
(c) HHSC may, on a case-by-case basis, require an MCO to discontinue telecommunications for the delivery of service coordination or assessments if HHSC determines that the discontinuation is in the best interest of the member.
(d) An MCO may conduct additional in-person visits with members, as determined by the MCO.
(e) MCOs must have a means to document verbal consent to the use of telecommunications for the delivery of assessments or service coordination.
(f) Where HHSC contractually requires face-to-face service coordination, the MCOs may conduct these visits in-person or using audio-visual means. Audio-visual may not be used if an assessment is being conducted during the service coordination visit, unless HHSC issues direction allowing audio-visual assessments during a declared state of disaster.
(g) MCOs may not leave blank fields in assessment tools, including tools to evaluate home and community-based service needs, nursing needs, and functional needs. Audio-visual is not an appropriate means of assessing a member if it results in blank fields.
(h) MCOs must explain to the member or the member's LAR what verbal consent means, and what the member or member's LAR is consenting to.
(1) The verbal consent for audio-visual communication in place of an in-person visit applies only to that visit.
(2) Verbal consent must be obtained for each service coordination visit conducted using audio-visual communication in place of an in-person visit.
(i) When telephonic service coordination visits are authorized by contract, these visits may continue to be provided by telephonic communication.
(j) An MCO must honor a member's request to receive service coordination or assessments in-person. Only when HHSC issues direction to MCOs during a declared state of disaster that service coordination or assessments must be conducted using audio-visual or audio-only communication due to the specific nature of a governor declared disaster, may an MCO deny a member's request for an in-person visit.
(k) MCOs may use their discretion on how to document verbal consent in a HIPAA-compliant manner. However, MCOs must be able to produce the documentation of verbal consent for audit and compliance purposes.
§353.1506.Additional Requirements for Assessments and Service Management in STAR Health.
(a) Information technology, including HIPAA-compliant text or email, may supplement audio-visual or in-person assessments, but may not be used as the sole means of conducting an assessment or service management visit.
(b) When a managed care organization (MCO) conducts an assessment or service management visit using telecommunications, the MCO must:
(1) monitor the health care services provided to the recipient for evidence of fraud, waste, and abuse;
(2) determine whether additional social services or supports are needed;
(3) document verbal consent to use telecommunications; and
(4) adhere to HIPAA, including the use of a HIPAA-compliant audio-visual communication product.
(c) HHSC may, on a case-by-case basis, require an MCO to discontinue telecommunications for the delivery of service management or assessments if HHSC determines that the discontinuation is in the best interest of the member.
(d) An MCO may conduct additional in-person visits with members, as determined by the MCO.
(e) MCOs must have a means to document verbal consent to the use of telecommunications for the delivery of assessments or service management.
(f) Audio-visual may not be used if an initial or annual assessment for the Medically Dependent Children Program or functionally necessary covered services is being conducted, unless HHSC issues direction allowing audio-visual assessments during a declared state of disaster.
(g) MCOs may not leave blank fields in assessment tools, including tools to evaluate home and community-based service needs, nursing needs, and functional needs. Audio-visual is not an appropriate means of assessing a member if it results in blank fields.
(h) MCOs must explain to the member or medical consenter what verbal consent means, and what the member or medical consenter is consenting to.
(1) The verbal consent for an audio-visual in place of an in-person visit applies only to that visit.
(2) Verbal consent must be obtained for each audio-visual service coordination visit conducted in place of an in-person visit.
(i) When telephonic screenings or service management visits are authorized by contract, these visits may continue to be provided by telephonic communication.
(j) An MCO must honor a member's request to receive service management or assessment in person. Only when HHSC issues direction to MCOs during a declared state of disaster that service management or assessments must be conducted using audio-visual or audio-only communication due to the specific nature of a governor declared disaster, may an MCO deny a member's request for in-person contact.
(k) MCOs may use their discretion on how to document verbal consent in a HIPAA-compliant manner. However, MCOs must be able to produce the documentation of verbal consent for audit and compliance purposes.
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 May 19, 2023.
TRD-202301834
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 8, 2023
Proposal publication date: December 30, 2022
For further information, please call: (512) 438-4363