TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 351. COORDINATED PLANNING AND DELIVERY OF HEALTH AND HUMAN SERVICES

SUBCHAPTER B. ADVISORY COMMITTEES

DIVISION 1. COMMITTEES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §351.829, concerning the Promoting Independence Advisory Committee. The Executive Commissioner also proposes amendments to §351.801, concerning Authority and General Provisions; §351.815, concerning the Policy Council for Children and Families; §351.817, concerning the Texas Council on Consumer Direction; §351.827, concerning the Palliative Care Interdisciplinary Advisory Council; and §351.833, concerning STAR Kids Managed Care Advisory Committee.

BACKGROUND AND PURPOSE

The purpose of the proposal is to amend certain rules to extend advisory committees that are set to be abolished, to revise certain committees' membership and tasks to incorporate duties related to persons on the autism spectrum, to align the rules with statute and statutory interpretations, to clarify terms, and to repeal a rule for an advisory committee that no longer functions.

In 2015, the Texas Legislature removed 38 advisory committees from HHSC that were established by statute and, by adopting Texas Government Code §531.012, authorized the Executive Commissioner to establish advisory committees by rule. The Executive Commissioner's advisory committee rules were effective July 1, 2016. The Policy Council for Children and Families and the Texas Council on Consumer Direction are set to be abolished in 2020, and HHSC intends to continue them for four years. In addition, the rule governing the Palliative Care Interdisciplinary Council (which is established by statute other than §531.012) is amended to extend the Council for so long as the statute establishing the Council remains in effect. The Promoting Independence Advisory Committee rule indicates that the Committee was abolished in 2017, but the rule has yet to be repealed.

In rules effective on January 27, 2020, and published in the January 24, 2020, issue of the Texas Register (45 TexReg 523), HHSC extended the Texas Autism Council until December 31, 2020. HHSC announced at that time that it would work to identify other, already existing advisory committees that could effectively address issues faced by persons on the autism spectrum. These proposed rules revise two advisory committee rules to accommodate those issues concerning children: §351.815, concerning the Policy Council for Children and Families; and §351.833, concerning the STAR Kids Managed Care Advisory Committee. We continue to look for a new "home" committee to accommodate autism-spectrum-related issues for adults.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §351.801 defines the term "family member" to clarify the term throughout the subchapter and clarifies the definition of "Health and Human Services system." The general rule also clarifies that every advisory committee, not just a committee established under Texas Government Code §531.012, is subject to Texas Government Code Chapter 2110 unless the statute establishing that committee expressly provides otherwise.

The proposed amendment to §351.815 extends the abolition date of the Policy Council for Children and Family until December 31, 2024. It adds a task to encompass issues related to children on the autism spectrum and changes membership categories to accommodate this change. It removes a reference to a statute that no longer exists; clarifies the due date for reports under subsection (d)(1); adds a subsection regarding open meetings and a subsection regarding training requirements. The proposed section also provides for one-quarter of all membership terms to expire each year in an effort to provide greater continuity and allows a member whose term is expiring to apply to serve one additional term. Organizational and formatting edits are made for consistency and clarity.

The proposed amendment to §351.817 extends the Texas Council on Consumer Direction to July 31, 2024. It also clarifies that the Council has both voting and nonvoting members, but the total number of all members does not exceed 24 in compliance with Texas Government Code §2110.002(a). The due date for reporting requirements is updated in subsection (d). Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.

The proposed amendment to §351.827 deletes the abolition date of the Palliative Care Interdisciplinary Advisory Council and provides that the Council will continue as long as the state law establishing it remains in effect. The proposal clarifies that the Council has both voting and nonvoting members, the total number of which does not exceed 24 in compliance with Texas Government Code § 2110.002(a). It provides for one-quarter of all membership terms to expire each year in an effort to provide greater continuity. Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.

Section 351.829 is repealed because the Promoting Independence Advisory Committee was abolished on September 1, 2017.

The proposed amendment to §351.833 revises membership on the STAR Kids Managed Care Advisory Committee to require the appointment of family members of children on the autism spectrum who are Medicaid recipients. Subsections regarding open meetings and training requirements are added to this section. Organizational and formatting edits are made for consistency and clarity.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules are in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rules as proposed. Enforcing or administering the rules does not have foreseeable implications relating to the costs or revenues of local government.

The effect on state government is an estimated General Revenue cost of $18,080 each fiscal year of the first five years the proposed rules are in effect.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will repeal an existing rule;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities to comply with the proposed rules. There are no entities other than HHSC required to comply with the proposal.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Constance Allison, Deputy Executive Commissioner of Policy and Rules, has determined that for each year of the first five years the rules are in effect, the public benefit will be accurate information available to stakeholders and the public regarding the duration and expiration of advisory committees making policy recommendations to HHSC, as well as updated information about the committees' membership and tasks.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules. The proposed rules amend advisory committee statutory authority and provides administrative housekeeping. There are no entities other than HHSC that is required to comply with the proposal.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or e-mailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 14 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R056" in the subject line.

1 TAC §§351.801, 351.815, 351.817, 351.827, 351.833

STATUTORY AUTHORITY

The amendments are authorized by 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 §531.012, which authorizes the Executive Commissioner to establish advisory committees by rule and to include in the rule a date of abolition.

The amendments affect Texas Government Code §531.0055 and Texas Government Code §531.012. The amendments also affect Texas Health and Safety Code chapter 118, which establishes the Palliative Care Interdisciplinary Council.

§351.801.Authority and General Provisions.

(a) Authority to establish advisory committees. In addition to specific statutory authority to establish particular advisory committees, the Texas Health and Human Services Commission has authority under Texas Government Code §531.012 to establish and maintain advisory committees to consider issues and solicit public input across all major areas of the health and human services system.

(b) Applicability of Texas Government Code Chapter 2110. An advisory committee established under Texas Government Code §531.012 is subject to Texas Government Code Chapter 2110. An advisory committee established under another statute is subject to Texas Government Code Chapter 2110 unless the establishing statute expressly states otherwise.

(c) Applicability of Texas Government Code Chapter 551. Unless otherwise expressly provided by statute or rule, an advisory committee established under this subchapter is subject to the Open Meetings Act, Texas Government Code Chapter 551, as if it were a governmental body.

(d) Quorum. Unless expressly provided otherwise, a majority of an advisory committee's voting members constitutes a quorum.

(e) General reporting requirement. In addition to reporting requirements set out in an advisory committee's section of this subchapter, an advisory committee established under Texas Government Code §531.012 must:

(1) report recommendations to the Executive Commissioner and the Health and Human Services Commission Executive Council; and

(2) submit a written report to the Texas Legislature of any policy recommendations made under paragraph (1) of this subsection.

(f) Geographic diversity generally. As necessary and appropriate, the members of an advisory committee established under Texas Government Code §531.012 will be appointed with a view to having committee members from diverse geographic areas of the state.

(g) Definitions. For purposes of this subchapter, the following terms are defined as follows:

(1) C.F.R.--Code of Federal Regulations.

(2) CHIP--The Texas State Children's Health Insurance Program established under Title XXI of the federal Social Security Act (42 U.S.C. §§1397aa, et seq.) and Chapter 62 of the Texas Health and Safety Code.

(3) Executive Commissioner--The HHSC Executive Commissioner.

(4) Family member--A parent, spouse, grandparent, adult sibling, adult child, guardian, or legally authorized representative.

(5) [(4)] Health and Human Services system--The [All state agencies and departments under and including the] Texas Health and Human Services Commission and [, including] the Texas Department of State Health Services. For purposes of this subchapter, the term also may include the [,] Texas Department of Family and Protective Services, where appropriate [Texas Department of Aging and Disability Services, and Texas Department of Assistive and Rehabilitative Services].

(6) [(5)] HHSC--The Texas Health and Human Services Commission, or its designee.

(7) [(6)] U.S.C.--United States Code.

§351.815.Policy Council for Children and Families.

(a) Statutory authority. The Policy Council for Children and Families (Policy Council) is established in accordance with [Texas Human Resources Code §22.0235 and] Texas Government Code §531.012.

(b) Purpose. The Policy Council works to improve the coordination, quality, efficiency, and outcomes of services provided to children with disabilities and their families through the state's health, education, and human services systems.

(c) Tasks. The Policy Council performs the following tasks:

(1) studies and makes recommendations to improve coordination between the state's health, education, and human services systems to ensure that children with disabilities and their families have access to high quality services;

(2) studies and makes recommendations to improve long-term services and supports, including community-based supports for children with special health and mental health care needs, as well as children with disabilities and their families receiving protective services from the state;

(3) studies and makes recommendations regarding emerging issues affecting the quality and availability of services available to children with disabilities and their families;

(4) studies and makes recommendations to better align resources with the service needs of children with disabilities and their families;

(5) studies and makes recommendations to ensure that the needs of children with autism spectrum disorder and their families are addressed, and that all available resources are coordinated to meet those needs;

(6) [(5)] makes recommendations regarding the implementation and improvement of the STAR Kids managed care program; and

(7) [(6)] performs other tasks consistent with its purpose as requested by the Executive Commissioner.

(d) Reporting requirements [Reports].

(1) Reporting to Executive Commissioner. By December 31 of each [fiscal] year, the Policy Council files a written report with the Executive Commissioner that covers the meetings and activities in the immediately preceding fiscal year. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(C) a brief description of actions taken by the committee;

(D) a description of how the committee accomplished its tasks;

(E) a summary of the status of any committee recommendations to HHSC;

(F) a description of activities the committee anticipates undertaking in the next fiscal year;

(G) recommended amendments to this section; and

(H) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.

(2) Reporting to Executive Commissioner and Texas Legislature. By November 1 [1st] of each even-numbered year, the Policy Council submits a written report to the Executive Commissioner and Texas Legislature that:

(A) describes current gaps and barriers to the provision of services to children with disabilities and their families through the state's health and human services system; and

(B) provides recommendations consistent with the Policy Council's purposes.

(e) The Policy Council complies with the requirements for open meetings under Texas Government Code Chapter 551, as if it were a governmental body. [Date of abolition. The Policy Council is abolished, and this section expires, four years after the date of its creation, in compliance with Texas Government Code §2110.008(b)].

(f) Membership.

(1) The Policy Council is composed of 24 members:

(A) five nonvoting [six non-voting], ex officio members, one from each of the following state programs and agencies or their successors, as selected by the represented agency:

(i) HHSC Medicaid and CHIP Services [STAR Kids managed care program expert];

[(ii) HHSC long term services andsupports expert;]

(ii) [(iii)] HHSC Health, Developmental & Independence Services [Early Childhood Intervention Services];

(iii) [(iv)] Texas Council on Developmental Disabilities;

(iv) [(v)] Texas Department of Family and Protective Services; and

(v) [(vi)] Texas Department of State Health Services;

(B) eleven voting members selected by the Executive Commissioner from families with a child under the age of 26 with a disability, including:

(i) at least one adolescent or young adult under the age of 26 with a disability receiving services from a health and human services system agency; and

(ii) at least one member of a family of a child with mental health care needs; and

(iii) at least one member of a family of a child with autism spectrum disorder;

(C) eight professional [seven] voting members, selected by the Executive Commissioner, one each to represent the following types of organizations or areas of expertise:

(i) a faith-based organization;

(ii) an organization that is an advocate for children with disabilities;

(iii) a physician providing services to children with complex needs;

(iv) an individual with expertise providing mental health services to children with disabilities;

(v) an organization providing services to children with disabilities and their families;

(vi) an organization providing community services; [and]

(vii) an organization or professional that advocates for or provides services or resources to children and the families of children with autism spectrum disorder; and

(viii) [(vii)] one at large position for an individual with expertise or experience relevant to the purposes and tasks of the Policy Council.

(2) In selecting members, the Executive Commissioner considers ethnic and minority representation and diverse disability representation.

(3) Members appointed under paragraph (1)(B) and (C) of this subsection serve staggered terms so that the terms of approximately one-quarter [half] of these members' terms [members] expire on December 31 [31st] of each [even-numbered] year.

(4) Except as necessary to stagger terms, the term of office of each non-agency member, described in paragraph (1)(B) and (C) of this subsection, is four years.

(5) A member with an expiring term may apply to serve one additional term [is eligible for reappointment].

(6) A member with an expiring term may continue to serve on the Policy Council until a new member is appointed.

(g) Officers. The Policy Council selects from among its members a presiding officer and an assistant presiding officer.

(1) The presiding and assistant presiding officers must be appointed family representatives.

(2) The presiding officer serves until December 31 of each odd-numbered year. The assistant presiding officer serves until December 31 of each even-numbered year.

(3) A presiding officer or assistant presiding officer remains in his or her position until the Policy Council selects a successor; however, the individual may not remain in office past the individual's membership term.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter (relating to Authority and General Provisions) and Texas Government Code §531.012, and Texas Government Code Chapters 551 and 2110. HHSC will provide the training.

(i) Date of abolition. The Policy Council is abolished, and this section expires, on December 31, 2024.

§351.817.Texas Council on Consumer Direction.

(a) Statutory authority. The Texas Council on Consumer Direction (the Council) is established in accordance with Texas Government Code §531.012.

(b) Purpose. The Council advises HHSC on the development, implementation, expansion, and delivery of services through consumer direction in all programs offering long-term services and supports that enhances a consumer's ability to have freedom and exercise control and authority over the consumer's choices, regardless of age or disability.

(c) Tasks.

(1) The Council makes recommendations to HHSC to:

(A) expand the delivery of services through consumer direction to other programs serving persons with disabilities and elderly persons under Texas Government Code[,] Chapter 531, Subchapter B;

(B) expand the array of services delivered through consumer direction;

(C) increase the use of consumer direction models by consumers;

(D) optimize consumer choice of Financial Management Services Agencies (FMSAs);

(E) expand access to support advisors for consumers receiving long-term care services and supports through consumer direction;

(F) monitor and analyze research for best practices in self-determination, consumer direction, and training;

(G) provide guidance and support to consumer outreach efforts; and

(H) increase informed choices, opportunities, and supports as a means to lead self-determined lives through the use of consumer direction models.

(2) The Council performs other tasks consistent with its purpose as requested by the Executive Commissioner.

(d) Reporting requirements. The Council files an annual written report to the Executive Commissioner no later than December 31 that covers the meetings and activities in the immediately preceding fiscal year [October 1st]. The report includes:

(1) a list of the meeting dates;

(2) the members' attendance records;

(3) a brief description of actions taken by the Council, including staff and member orientation, training, strategic planning, retention, and evaluation efforts;

(4) a description of how the Council accomplished its tasks;

(5) a summary of the status of any rules that the Council recommended to HHSC;

(6) a description of activities the Council anticipates undertaking in the next fiscal year;

(7) recommended amendments to this section; and

(8) the costs related to the Council, including the cost of HHSC staff time spent supporting the Council's activities and the source of funds used to support the Council's activities.

(e) Open meetings. The Council complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body. [Abolition. The Council is abolished, and this section expires, four years after the date of its creation, in compliance with Texas Government Code §2110.008(b).]

(f) Membership.

(1) The Council consists of no more than 17 voting members and seven nonvoting members.

(2) Voting members.

(A) Each member is appointed by the Executive Commissioner.

(B) Council membership must include:

(i) three members to serve as consumers or potential consumers of the array of services provided through consumer direction;

(ii) two members to serve as advocates for elderly persons who are consumers of the array of services provided to elderly persons through consumer direction;

(iii) two members to serve as advocates for persons with disabilities who are consumers of the array of services provided to persons with disabilities through consumer direction;

(iv) three members to represent financial management services agencies providing services through consumer direction;

(v) one member to represent a STAR+PLUS managed care organization;

(vi) one member to represent a STAR Kids managed care organization;

(vii) one member who serves as a mental health services advocate for consumers who receive consumer-directed services;

(viii) one member who represents a Local Intellectual and Developmental Disability Authority (LIDDA) for consumers who receive consumer-directed services;

(ix) one member with experience providing personal care attendants for consumers who receive consumer-directed services;

(x) one member to serve as an advocate for pediatric consumers or potential consumers of the array of services provided through consumer direction; and

(xi) one member to represent family members of pediatric consumers or potential consumers of the array of services provided through consumer direction.

(C) A majority of the members of the Council must be composed of consumers and advocates.

(D) Council membership must include, to the extent possible, individuals representing a range of ages and disabilities, including:

(i) individuals with an intellectual disability or related condition;

(ii) individuals with a physical disability;

(iii) individuals who are age 65 or older;

(iv) individuals with mental health needs; and

(v) individuals with children with high medical needs.

(3) [(E)] Nonvoting members.

(A) Each nonvoting member is appointed by his or her respective agency as follows:

(i) two representatives with an expertise in consumer direction from HHSC or another state agency as considered necessary by the Executive Commissioner;

(ii) two representatives from the Texas Workforce Commission, one representing state unemployment and one representing employment services for individuals with disabilities;

(iii) one representative with expertise on managed care organizations from HHSC or another state agency as considered necessary by the Executive Commissioner;

(iv) one representative of the Texas Department of Family and Protective Services; and

(v) one representative with expertise in mental health from HHSC or another state agency as considered necessary by the Executive Commissioner.

(B) [(F)] Additional nonvoting members may be added, as considered necessary by the Executive Commissioner and/or the Council, so long as the Council's total membership does not exceed 24.

(4) [(2)] Except as necessary to stagger terms, each member is appointed to serve a term of four calendar years[, including nonvoting members].

(g) Chairs.

(1) The Council selects a Chair and Vice-Chair from among its voting members.

(2) The Chair serves until December 31 of each even-numbered year. The Vice-Chair serves until December 31 of each odd-numbered year.

(3) A member serves no more than two consecutive terms as Chair or Vice-Chair.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter (relating to Authority and General Provisions) and Texas Government Code §531.012, and Texas Government Code Chapters 551 and 2110. HHSC will provide the training.

(i) Abolition. The Council is abolished, and this section expires, on July 31, 2024.

§351.827.Palliative Care Interdisciplinary Advisory Council.

(a) Statutory authority. The Palliative Care Interdisciplinary Advisory Council ([Palliative Care Council or] Council) is established in accordance with Texas Health and Safety Code Chapter 118[, as adopted by Act of May 23, 2015, 84th Leg., R.S., §2 (H.B. 1874)].

(b) Purpose. The [Palliative Care] Council assesses the availability of patient-centered and family-focused, interdisciplinary team-based palliative care in Texas for patients and families facing serious illness. The Council works to ensure that relevant, comprehensive, and accurate information and education about palliative care is available to the public, health care providers, and health care facilities. This includes information and education about complex symptom management, care planning, and coordination needed to address the physical, emotional, social, and spiritual suffering associated with serious illness.

(c) Tasks. The [Palliative Care] Council performs the following tasks:

(1) consults with and advises HHSC on matters related to the establishment, maintenance, operation, and outcome evaluation of the palliative care consumer and professional information and education program established under Texas Health and Safety Code §118.011;

(2) studies and makes recommendations to remove barriers to appropriate palliative care services for patients and families facing serious illness in Texas of any age and at any stage of illness; and

(3) pursues other deliverables consistent with its purpose as requested by the Executive Commissioner or adopted into the work plan or bylaws of the council.

(d) Reporting requirements [Reports].

(1) Reporting to Executive Commissioner. By December 31 of each [fiscal] year, the [Palliative Care] Council files a written report with the Executive Commissioner that covers the meetings and activities in the immediately preceding fiscal year. The report includes:

(A) a list of the meeting dates;

(B) the members' attendance records;

(C) a brief description of actions taken by the committee;

(D) a description of how the committee accomplished its tasks;

(E) a summary of the status of any rules that the committee recommended to HHSC;

(F) a description of activities the committee anticipates undertaking in the next fiscal year;

(G) recommended amendments to this section; and

(H) the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.

(2) Reporting to Executive Commissioner and Texas Legislature. By October 1 [1st] of each even-numbered year, the Council submits a written report to the Executive Commissioner and the standing committees of the Texas senate and house with primary jurisdiction over health matters. The report:

(A) assesses the availability of palliative care in Texas for patients in the early stages of serious disease;

(B) analyzes barriers to greater access to palliative care;

(C) analyzes policies, practices, and protocols in Texas concerning patients' rights related to palliative care, including:

(i) whether a palliative care team member may introduce palliative care options to a patient without the consent of the patient's attending physician or practitioner;

(ii) the practices and protocols for discussions between a palliative care team member and a patient on life-sustaining treatment or advance directives decisions; and

(iii) the practices and protocols on informed consent and disclosure requirements for palliative care services; and

(D) provides recommendations consistent with the purposes of the [Palliative Care] Council.

(e) Open meetings. The Council complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body. [Date of Abolition. Palliative Care Council is required by statute and will continue as long as the state law that requires it remains in effect.]

(f) Membership.

(1) The [Palliative Care] Council is composed of at least 15 voting members appointed by the Executive Commissioner and nonvoting agency, ex officio representatives as determined by the Executive Commissioner. Total membership on the Council will not exceed 24.

(2) Voting membership.

(A) The [Palliative Care] Council must include:

(i) at least five physician members, including:

(I) two who are board certified in hospice and palliative care; and

(II) one who is board certified in pain management;

(ii) three palliative care practitioner members, including:

(I) two advanced practice registered nurses who are board-certified in hospice and palliative care; and

(II) one physician assistant who has experience providing palliative care;

(iii) four health care professional members, including:

(I) a nurse;

(II) a social worker;

(III) a pharmacist; and

(IV) a spiritual-care professional; and

(iv) at least three members:

(I) with experience as an advocate for patients and the patients' family caregivers;

(II) who are independent of a hospital or other health care facility; and

(III) at least one of whom represents an established patient advocacy organization.

(B) Health care professional members listed in subparagraph (A)(iii) of this paragraph must meet one or more of the following qualifications:

(i) experience providing palliative care to pediatric, youth, or adult populations;

(ii) expertise in palliative care delivery in an inpatient, outpatient, or community setting; or

(iii) expertise in interdisciplinary palliative care.

[(C) The committee may include nonvoting agency, ex-officio representatives as determined by the Executive Commissioner.]

(C) [(2)] In selecting voting members, the Executive Commissioner considers ethnic and minority representation and geographic representation.

(D) [(3)] Members are appointed to staggered terms so that the terms of approximately one-quarter of [half] the members' terms [members] expire on December 31 [31st] of each [odd-numbered] year.

(E) [(4)] Except as necessary to stagger terms, the term of each voting member is four years.

(g) Officers. The [Palliative Care] Council selects from its members a presiding officer and an assistant presiding officer.

(1) The presiding officer serves until December 31 of each odd-numbered year. The assistant presiding officer serves until December 31 of each even-numbered year.

(2) The presiding officer and the assistant presiding officer remain in their positions until the [Palliative Care] Council selects a successor; however, the individual may not remain in office past the individual's membership term.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter (relating to Authority and General Provisions) and Texas Government Code §531.012, and Texas Government Code Chapters 551 and 2110. HHSC will provide the training.

(i) Abolition. The Council is required by statute and will continue as long as the state law that requires it remains in effect.

§351.833.STAR Kids Managed Care Advisory Committee.

(a) Statutory authority. The STAR Kids Managed Care Advisory Committee (STAR Kids Advisory Committee) is established under Texas Government Code §531.012.

(b) Purpose. The STAR Kids Advisory Committee advises HHSC on the establishment and implementation of, and recommends improvements to, the STAR Kids managed care program.

(c) Tasks. The STAR Kids Advisory Committee makes recommendations consistent with its purpose to HHSC through regularly scheduled meetings and staff assigned to the committee.

(d) Reporting requirements [Reports].

(1) Reporting to Executive Commissioner. By December 31 [31st] of each fiscal year, the STAR Kids Advisory Committee must file a written report with the Executive Commissioner that covers the meetings and activities in the immediately preceding fiscal year. The report:

(A) lists the meeting dates;

(B) provides the members' attendance records;

(C) briefly describes actions taken by the committee;

(D) describes how the committee has accomplished its tasks;

(E) summarizes the status of any rules that the committeerecommended to HHSC;

(F) describes anticipated activities the committee will undertake in the next fiscal year;

(G) recommends amendments to this section, as needed; and

(H) identifies the costs related to the committee, including the cost of HHSC staff time spent supporting the committee's activities and the source of funds used to support the committee's activities.

(2) Reporting to Texas Legislature. By December 31 of each even-numbered year, the committee must file a written report with the Texas Legislature of any policy recommendations made to the Executive Commissioner.

(e) Open meetings. The STAR Kids Advisory Committee complies with the requirements for open meetings under Texas Government Code Chapter 551 as if it were a governmental body. [Abolition. On December 31, 2023, the advisory committee is abolished, and this section expires.]

(f) Membership.

(1) The Executive Commissioner appoints the members of the STAR Kids Advisory Committee.

(2) The STAR Kids Advisory Committee may consist of:

(A) representatives from families whose children will receive private duty nursing, are IDD waiver recipients, or receive mental and behavioral health services under the program;

(B) medical care providers;

(C) providers of home and community-based services, including at least one private duty nursing provider, one durable medical equipment provider, and one pediatric therapy provider;

(D) managed care organizations;

(E) advocates for children with special health care needs; [and]

(F) family members of children with autism spectrum disorder who are Medicaid recipients; and

(G) [(F)] other stakeholders as the executive commissioner determines appropriate.

(3) The STAR Kids Advisory Committee may have no more than 24 members.

(4) In selecting voting members, the Executive Commissioner considers ethnic and minority representation and geographic representation.

(g) Presiding officer.

(1) The committee selects from its members a presiding officer[,] and, at the discretion of the committee, an assistant presiding officer [at the discretion of the committee].

(2) The presiding officer serves until August 31 [31st] of each even-numbered year. The assistant presiding officer, if applicable, serves until August 31 [31st] of each odd-numbered year.

(3) A member serves no more than two consecutive terms as presiding officer or assistant presiding officer.

(h) Required Training. Each member shall complete all training on relevant statutes and rules, including this section and §351.801 of this subchapter (relating to Authority and General Provisions) and Texas Government Code §531.012, and Texas Government Code Chapters 551 and 2110. HHSC will provide the training.

(i) Abolition. On December 31, 2023, the advisory committee is abolished, and this section expires.

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

Filed with the Office of the Secretary of State on September 4, 2020.

TRD-202003640

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 18, 2020

For further information, please call: (512) 707-6101


1 TAC §351.829

STATUTORY AUTHORITY

The repeal is authorized by 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 §531.012, which authorizes the Executive Commissioner to establish advisory committees by rule and to include in the rule a date of abolition.

The repeal affects Texas Government Code §531.0055 and Texas Government Code §531.012. The repeal also affects Texas Health and Safety Code chapter 118, which establishes the Palliative Care Interdisciplinary Council.

§351.829.Promoting Independence Advisory Committee.

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

Filed with the Office of the Secretary of State on September 4, 2020.

TRD-202003641

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 18, 2020

For further information, please call: (512) 707-6101


1 TAC §351.841

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes in Texas Administrative Code (TAC) Title 1, Part 15, Chapter 351, Subchapter B, Division 1, new §351.841, concerning Joint Committee on Access and Forensic Services.

BACKGROUND AND PURPOSE

The purpose of the proposed new rule is to move HHSC rules in 25 TAC Chapter 411 to 1 TAC Chapter 351 as part of consolidating HHSC advisory committee rules into one place. Moving the Joint Committee on Access and Forensic Services (JCAFS) rule to Chapter 351 will make it easier to locate since the HHSC advisory committee rules are located in 1 TAC Chapter 351, Subchapter B. The proposed new rule is reorganized and updated. The proposed new rule adds two new provisions that are not substantive changes to the current rules in 25 TAC Chapter 411 so it does not result in new or increased requirements for JCAFS. The proposed repeal of 25 TAC Chapter 411 appears elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §351.841(a), Definitions, defines certain terms used in the section. The terms "forensic patient," "forensic services," and "JCAFS" are added to this section, which did not exist in §411.1 and "DSHS" was removed.

Proposed new §351.841(b), Statutory authority, lists the statutes that authorize the JCAFS.

Proposed new §351.841(c), Purpose, provides the purpose.

Proposed new §351.841(d), Tasks, provides that the JCAFS is tasked with considering and making recommendations to the Executive Commissioner consistent with the committee's purpose.

Proposed new §351.841(e), Reporting requirements, lists the reports the JCAFS must submit.

Proposed new §351.841(f), Open meetings, is a new provision which states that JCAFS complies with the requirements for open meetings under Texas Government Code, Chapter 551.

Proposed new §351.841(g), Membership, provides the definition for quorum, lists the designating organizations that will nominate members to join the JCAFS, and lists the non-voting ex officio members.

Proposed new §351.841(h), Officers, provides how officers are selected and the number of terms officers may serve.

Proposed new §351.841(i), Required training, is a new provision which describes the required training.

Proposed new §351.841(j), Date of abolition, states the JCAFS will not be abolished as long as Texas Health and Safety Code §533.051 and 533.0515 remain in effect.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of state or local governments.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rule will be in effect:

(1) the proposed rule will not create or eliminate a government program;

(2) implementation of the proposed rule will not affect the number of HHSC employee positions;

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

(5) the proposed rule will create a new rule in 1 TAC which will replace rules being repealed contemporaneously from 25 TAC;

(6) the proposed rule will not repeal existing rules;

(7) the proposed rule will not change the number of individuals subject to the rule; and

(8) the proposed rule will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. There are no entities other than HHSC required to comply with this proposal.

LOCAL EMPLOYMENT IMPACT

The proposed rule will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to this rule, because the rule does not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Sonja Gaines, Deputy Executive Commissioner of IDD & Behavioral Health Services, has determined that for each year of the first five years the rule is in effect, the public will benefit from updated information about the JCAFS and the rule will be easier to locate in 1 TAC Chapter 351 with the other HHSC advisory committees rules.

Trey Wood has also determined that for the first five years the rule is in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rule. There are no entities other than HHSC required to comply with the proposal.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 4900 North Lamar Boulevard, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 20R044" in the subject line.

STATUTORY AUTHORITY

The new section is authorized by Texas Health and Safety Code, Section 532.0131, which requires HHSC to adopt rules for the Joint Committee on Access and Forensic Services.

The new section affects Texas Government Code §531.0055 and Texas Health and Safety Code §533.051 and §533.0515.

§351.841.Joint Committee on Access and Forensic Services.

(a) Definitions. The following words and terms, when used in this section, have the following meanings unless the context clearly indicates otherwise.

(1) Executive Commissioner--The Executive Commissioner of the Texas Health and Human Services Commission or the Executive Commissioner's designee.

(2) Forensic patient--The term has the meaning described in Texas Health and Safety Code Chapter 532.013.

(3) Forensic services--A competency examination, competency restoration service, or mental health service provided to a current or former forensic patient in the community or at a facility that receives state funds for providing mental health services for forensic patients.

(4) HHSC--The Texas Health and Human Services Commission.

(5) JCAFS--The Joint Committee on Access and ForensicServices.

(b) Statutory authority. JCAFS is authorized by:

(1) Texas Health and Safety Code §533.051(c), which defines membership requirements and prescribes the duties of the JCAFS; and

(2) Texas Health and Safety Code §533.0515, which authorizes the Executive Commissioner to adopt rules as necessary to implement its provisions.

(c) Purpose. The purpose of the JCAFS is to:

(1) make recommendations and monitor implementation of updates to a bed day allocation methodology;

(2) make recommendations and monitor implementation of a utilization review protocol for state funded beds in hospitals and other inpatient mental health facilities; and

(3) make recommendations to improve access to mental health services for both civil and forensic patients throughout the full continuum of care from institution to community-based settings.

(d) Tasks. The JCAFS considers and makes recommendations to the Executive Commissioner consistent with the committee's purpose as stated in subsection (c) of this section.

(e) Reporting requirements. The JCAFS submits:

(1) a written report to the Executive Commissioner, the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, the Senate Finance Committee, the House Appropriations Committee and the standing committees of the legislature having jurisdiction over mental health and human services by December 1 of each even-numbered year, in accordance with Texas Health and Safety Code §533.0515(e); and

(2) a proposal for an updated bed day allocation methodology and bed day utilization review protocol to the Executive Commissioner no later than December 1 of each even-numbered year, in accordance with Texas Health and Safety Code §533.015.

(f) Open meetings. The JCAFS complies with the requirements for open meetings under Texas Government Code Chapter 551.

(g) Membership. The JCAFS is composed of 17 members nominated by the designating organization and appointed by the Executive Commissioner. A majority of the voting members of the JCAFS constitutes a quorum. Each member serves until a replacement is nominated by the designating organization and appointed by the Executive Commissioner.

(1) The membership consists of:

(A) one Texas Department of Criminal Justice-designated representative;

(B) one Texas Association of Counties-designated representative;

(C) two Texas Council of Community Centers-designated representatives, including one representative of an urban local service area and one representative of a rural local service area;

(D) two County Judges and Commissioners Association of Texas-designated representatives, one of which is the presiding judge of a court with jurisdiction over mental health matters;

(E) one Sheriffs' Association of Texas-designated representative;

(F) two Texas Municipal League-designated representatives, one of which is a municipal law enforcement official;

(G) one Texas Conference of Urban Counties-designated representative;

(H) two Texas Hospital Association-designated representatives, one of which is a physician;

(I) one representative designated by an organization identified by HHSC representing individuals with lived experience receiving publicly funded mental health services; and

(J) four representatives designated by the HHSC Behavioral Health Advisory Committee (BHAC), or its successor:

(i) including the chair of the BHAC;

(ii) one representative of the BHAC's members who is a consumer of or advocate for mental health services;

(iii) one representative of the BHAC's members who is a consumer of or advocate for substance abuse treatment; and

(iv) one representative of the BHAC's members who is a family member of or advocate for persons with mental health and substance abuse disorders.

(2) The HHSC Forensic Director and the State Hospital Chief of Forensic Medicine serve as non-voting ex officio members of the JCAFS.

(h) Officers. The JCAFS selects from among its members, a presiding chair and vice-chair. Unless re-elected, the term of the presiding chair and vice-chair is one year. The chair and vice-chair will each serve no more than three one-year terms in each position.

(i) Required training. Each member shall complete all training on relevant statutes and rules, including this section, §351.801 of this subchapter (relating to Authority and General Provisions), Texas Government Code §531.012, and Texas Government Code Chapters 551 and 2110. Training will be provided by HHSC.

(j) Date of abolition. The JCAFS will not be abolished as long as the Texas Health and Safety Code §533.051 and §533.0515 remain in effect because the JCAFS is established by statute.

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

Filed with the Office of the Secretary of State on September 2, 2020.

TRD-202003620

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 18, 2020

For further information, please call: (512) 380-4990


CHAPTER 354. MEDICAID HEALTH SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §354.1177, concerning Electronic Visit Verification (EVV) System, in Subchapter A, Division 11; and new §354.4001, concerning Purpose and Authority; §354.4003, concerning Definitions; §354.4005, concerning Applicability; §354.4007, concerning EVV System; §354.4009, concerning Requirements for Claims Submission and Approval; §354.4011, concerning Member Rights and Responsibilities; and §354.4013, concerning Additional Requirements, in new Subchapter O, Electronic Visit Verification.

BACKGROUND AND PURPOSE

HHSC currently has rules concerning EVV in Titles 1 and 40 of the Texas Administrative Code (TAC). The purpose of this proposal is to consolidate the EVV rules into one location, implement federal and state requirements for the Texas EVV system, and remove unnecessary or duplicative rules from TAC. The repeals for the EVV-related rules in 40 TAC, Chapter 68, are proposed elsewhere in this issue of the Texas Register.

The Texas EVV System began as a state-mandated system and is in the process of changing in compliance with current state law and newly enacted federal law. An EVV system electronically verifies information relating to the delivery of services, such as the type of service provided; the name of the member who received the service; the name of the provider who provided the service; the date the service was provided; and the time the service began and ended. HHSC requires the use of an EVV system to help ensure that members receive services authorized for their care, to ensure accurate Medicaid payments, and to prevent fraud, waste and abuse.

The proposed new rules apply to program providers, Consumer Directed Services (CDS) employers, Financial Management Services Agencies (FMSAs), service providers, members, and managed care organizations (MCOs). The proposed new rules list the services subject to the use of EVV.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §354.1177, Electronic Visit Verification (EVV) System, deletes the rule that is no longer necessary, because the rules for EVV will be addressed in the proposed new Chapter 354, Subchapter O.

Proposed new §354.4001 describes the purpose of the rules in Subchapter O and references the federal and state laws that authorize HHSC to implement the requirements of the rules.

Proposed new §354.4003 provides definitions for terminology used in the subchapter.

Proposed new §354.4005 states that the rules in Subchapter O apply to a program provider, a CDS employer, an FMSA, a service provider, a member, and an MCO unless otherwise specified in the rules. The proposed new rule also lists the services subject to the use of EVV.

Proposed new §354.4007 (1) requires the use of an EVV system by program providers, CDS employers, and FMSAs to electronically document delivery of the services listed in §354.4005; (2) lists data elements that must be included to verify service delivery in order to receive payment for an EVV-relevant claim; and (3) provides mandates related to the accuracy of the data. The rule also addresses mandatory HHSC and MCO access to the EVV system and documentation.

Proposed new §354.4009 outlines the requirements for accurately submitting an EVV-relevant claim for reimbursement and the consequences for non-compliance with the rule. The proposed rule also addresses program provider requirements and requirements for CDS employers and FMSAs.

Proposed new §354.4011 addresses the notices that HHSC and the MCOs must provide relating to compliance with EVV and requires HHSC or the MCO to provide members with notice of their rights and responsibilities regarding EVV.

Proposed new §354.4013 requires that program providers, CDS employers, FMSAs, service providers, members, and MCOs must administer the EVV requirements in an effective, accurate, and efficient manner, in compliance with all state and federal laws, rules, regulations, policies, and guidelines. The proposed rule also addresses compliance with the EVV Policy Handbook, obligations under contract or law regarding documentation requirements, and compliance with applicable federal and state laws regarding confidentiality of a member's information.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rules as proposed. The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $2,106,521.06 in Federal Funds (FF) ($2,815,361.41 All Funds (AF)) in state fiscal year (SFY) 2021, $2,127,495.52 FF ($2,843,327.36 AF) in SFY 2022, $2,148,701.32 FF ($2,871,601.76 AF) in SFY 2023, $2,170,061.34 FF ($2,900,081.79 AF) in SFY 2024, and $2,191,652.70 FF ($2,928,870.27 AF) in SFY 2025.

Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will require an increase in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new rules;

(6) the proposed rules will repeal an existing rule;

(7) the proposed rules will increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be an adverse economic effect on small businesses or micro-businesses. No rural communities are EVV program providers.

The adverse economic effect on small businesses or micro-businesses is the cost to comply with the proposed rules for provider agencies, CDS employers, and FMSAs not currently required to use EVV. The cost to comply may include implementing the use of an EVV system; purchase or management of EVV equipment such as alternative device delivery; the purchase of a mobile device for a service provider; usage of the mobile application on a mobile device; training and educating new members about EVV; compliance monitoring by service providers in all processes required to verify service delivery through the use of EVV; and to ensure all data elements required by HHSC are uploaded or entered completely and accurately into the EVV system before billing for service delivery.

HHSC lacks sufficient data to estimate the number of and economic impact to small businesses or micro-businesses subject to the proposed rules.

HHSC determined that there are no alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities because the proposed rules are required by state and federal law.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the proposed rules are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFIT AND COSTS

Stephanie Stephens, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from having a consolidated rule base that contains the requirements for EVV. The public will also benefit from rules intended to ensure (1) members receive authorized services, (2) prevention of fraud, waste, and abuse, and (3) compliance with federal law.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs by implementing the use of an EVV system; delivering EVV equipment to a Medicaid recipient's home such as an alternative device; choosing to purchase a mobile device for a service provider; using the mobile application on a mobile device; training and educating new members about EVV; monitoring compliance of service providers to verify service delivery through the use of EVV; and ensuring all data elements required by HHSC are uploaded or entered completely and accurately into the EVV system before billing for service delivery. HHSC does not have sufficient data to estimate these costs to comply.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to E. Frechette, Program Specialist, Mail Code W-465, 701 W. 51st Street, Austin, Texas 78751; or by email to Electronic_Visit_Verification@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 19R025" in the subject line.

SUBCHAPTER A. PURCHASED HEALTH SERVICES

DIVISION 11. GENERAL ADMINISTRATION

1 TAC §354.1177

STATUTORY AUTHORITY

The repeal is authorized by 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 system; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resource Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

The repeal is issued in accordance with §1903(l) of the Social Security Act [42 United States Code §1396b] and implement Texas Government Code §531.024172 and Texas Human Resources Code §161.086.

§354.1177.Electronic Visit Verification (EVV) System.

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

Filed with the Office of the Secretary of State on September 4, 2020.

TRD-202003638

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 18, 2020

For further information, please call: (512) 438-4809


SUBCHAPTER O. ELECTRONIC VISIT VERIFICATION

1 TAC §§354.4001, 354.4003, 354.4005, 354.4007, 354.4009, 354.4011, 354.4013

STATUTORY AUTHORITY

The new sections are authorized by 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 system; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resource Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

The new sections are issued in accordance with §1903(l) of the Social Security Act [42 United States Code §1396b] and implement Texas Government Code §531.024172 and Texas Human Resources Code §161.086.

§354.4001.Purpose and Authority.

(a) The purpose of this subchapter is to implement requirements for the Texas electronic visit verification (EVV) system to electronically verify that services identified in this subchapter, or any other services identified by HHSC, are provided to a member in accordance with a prior authorization or plan of care as applicable to the appropriate program.

(b) The provisions of this subchapter are issued in accordance with the following federal and state laws:

(1) Title XIX, Section 1903(l) of the Social Security Act (42 U.S.C. §1396b);

(2) Texas Government Code §531.024172; and

(3) Texas Human Resource Code §161.086.

§354.4003.Definitions.

The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

(1) Centers for Medicare & Medicaid Services (CMS)--The federal agency within the United States Department of Health and Human Services that administers the Medicare and Medicaid programs.

(2) Claims administrator--The entity HHSC has designated to perform functions such as processing certain Medicaid program provider claims, managing the EVV aggregator, and performing EVV vendor management functions.

(3) Community Attendant Services Program--A Medicaid state plan program operating under Title XIX of the Social Security Act, as described in 40 TAC Chapter 47 (relating to Primary Home Care, Community Attendant Services, and Family Care Programs).

(4) Community First Choice (CFC)--A Medicaid state plan option governed by Code of Federal Regulations, Title 42, Part 441, Subpart K, Home and Community-Based Attendant Services and Supports State Plan Option (Community First Choice). This includes STAR members who receive these services through the traditional Medicaid service model also referred to as fee-for-service. CFC services include:

(A) Community First Choice Habilitation (CFC HAB), a Medicaid state plan service that provides habilitation through CFC;

(B) Community First Choice Personal Assistance Services (CFC PAS), a Medicaid state plan service that provides personal assistance services through CFC; and

(C) Community First Choice Personal Assistance Services/Habilitation (CFC PAS/HAB), a Medicaid state plan service provided through CFC that provides both personal assistance services and habilitation combined into one service.

(5) Community Living Assistance and Support Services (CLASS) Program--The Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 40 TAC Chapter 45 (relating to Community Living Assistance and Support Services and Community First Choice (CFC) Services).

(6) Consumer Directed Services (CDS) employer--A member or legally authorized representative (LAR) who chooses to participate in the CDS option. A CDS employer, the member or LAR, is responsible for hiring and retaining a service provider who delivers a service described in §354.4005 of this subchapter (relating to Applicability).

(7) Consumer Directed Services option (CDS option)--A service delivery option in which a member or LAR employs and retains a service provider and directs the delivery of a service described in §354.4005 of this subchapter.

(8) Deaf Blind with Multiple Disabilities (DBMD) Program--The Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 40 TAC Chapter 42 (relating to Deaf Blind with Multiple Disabilities (DBMD) Program and Community First Choice (CFC) Services).

(9) Electronic visit verification (EVV)--The documentation and verification of service delivery through an EVV system.

(10) EVV aggregator--A centralized database that collects, validates, and stores statewide EVV visit data transmitted by an EVV system.

(11) EVV Policy Handbook--The HHSC handbook that provides EVV standards and policy requirements.

(12) EVV proprietary system--An HHSC-approved EVV system that a program provider or financial management services agency (FMSA) may opt to use instead of an EVV vendor system that:

(A) is purchased or developed by a program provider or an FMSA;

(B) is used to exchange EVV information with HHSC or a managed care organization (MCO); and

(C) complies with the requirements of Texas Government Code §531.024172 or its successors.

(13) EVV system--An EVV vendor system or an EVV proprietary system used to electronically document and verify the data elements described in §354.4007 of this subchapter (relating to EVV System) for a visit conducted to provide a service described in §354.4005 of this subchapter.

(14) EVV vendor system--An EVV system provided by an EVV vendor selected by the claims administrator, on behalf of HHSC that a program provider or FMSA may opt to use instead of an EVV proprietary system.

(15) EVV visit transaction--A data record generated by an EVV system that contains the data elements described in §354.4007 of this subchapter for a visit conducted to provide a service described in §354.4005 of this subchapter.

(16) Family Care (FC) Program--A program funded under Title XX, Subtitle A of the Social Security Act, as described in 40 TAC Chapter 47.

(17) Financial Management Services Agency (FMSA)--An entity that contracts with HHSC or an MCO to provide financial management services to a CDS employer as described in 40, TAC Chapter 41 (relating to Consumer Directed Services Option).

(18) HHSC--Texas Health and Human Services Commission.

(19) Home and Community-Based Services (HCBS) Adult Mental Health Program--A Medicaid state plan option approved by CMS under Title XIX, Section 1915(i) of the Social Security Act, as described in 26 TAC Chapter 307, Subchapter B (relating to Home and Community-Based Services--Adult Mental Health Program).

(20) Home and Community-based Services (HCS) Program--A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 40 TAC Chapter 9, Subchapter D (relating to Home and Community-based Services (HCS) Program and Community First Choice (CFC)).

(21) Managed care organization (MCO)--Has the meaning set forth in Texas Government Code §536.001.

(22) Medically Dependent Children Program (MDCP)--A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in Chapter 353, Subchapter M of this title (relating to Home and Community Based Services in Managed Care).

(23) Medically Dependent Children Program STAR Health (MDCP STAR Health) covered service--A service provided to a member eligible to receive MDCP benefits under the STAR Health Program.

(24) Medically Dependent Children Program STAR Kids (MDCP STAR Kids) covered service --A service provided to a member eligible to receive MDCP benefits under the STAR Kids Program.

(25) Member--A person eligible to receive a service described in §354.4005 of this subchapter.

(26) Primary Home Care Program--A Medicaid state plan program operating under Title XIX of the Social Security Act, as described in 40 TAC Chapter 47.

(27) Program provider--An entity that contracts with HHSC or an MCO to provide a service described in §354.4005 of this subchapter.

(28) Reason code--A standardized HHSC-approved code entered into an EVV system to explain the specific reason a change was made to an EVV visit transaction.

(29) Service provider--A person who provides a service described in §354.4005 of this subchapter and who is employed or contracted by:

(A) a program provider;

(B) a CDS employer; or

(C) a member who has selected the service responsibility option (SRO).

(30) Service responsibility option (SRO)--A service delivery option in which a member or LAR selects, trains, and provides daily management of a service provider, while the fiscal, personnel, and service back-up plan responsibilities remain with the program provider.

(31) STAR--State of Texas Access Reform.

(32) STAR Program--A Medicaid program operating under Title XIX, Section 1115 of the Social Security Act. The program provides services through a managed care delivery model to a member enrolled in STAR as described in Chapter 353, Subchapter I of this title (relating to STAR).

(33) STAR Health Program--The Medicaid program operating under Title XIX, Section 1915(a) of the Social Security Act and Texas Family Code, Chapter 266. The program provides services through a managed care delivery model to a member enrolled in STAR Health as described in Chapter 353, Subchapter H of this title (relating to STAR Health).

(34) STAR Kids Program--The Medicaid program operating under Title XIX, Section 1115 of the Social Security Act and Texas Government Code, Chapter 533. The program provides services through a managed care delivery model to a member enrolled in STAR Kids as described in Chapter 353, Subchapter N of this title (relating to STAR Kids).

(35) STAR+PLUS Home and Community-Based Services Program (STAR+PLUS HCBS Program)--A Medicaid program operating through a federal waiver under Title XIX, Section 1115 of the Social Security Act. The program provides services to a member eligible to receive HCBS benefits under the STAR+PLUS Program, as described in Chapter 353, Subchapter M of this title (relating to Home and Community Based Services in Managed Care).

(36) STAR+PLUS Medicare-Medicaid Plan (STAR+PLUS MMP)--A managed care program operating under Title XIX, Section 1115A of the Social Security Act that provides the authority to test and evaluate a fully integrated care model for clients who are dual eligible. The STAR+PLUS MMPs are contracted with CMS and HHSC to participate in the Dual Demonstration Program described in Chapter 353, Subchapter L of this title (relating to Texas Dual Eligibles Integrated Care Demonstration Project).

(37) STAR+PLUS Program--A Medicaid program operating under Title XIX, Section 1115 of the Social Security Act, and Texas Government Code, Chapter 533. The program provides services through a managed care delivery model to a member enrolled in STAR+PLUS as described in Chapter 353, Subchapter G of this title (relating to STAR+PLUS).

(38) TAC--Texas Administrative Code.

(39) Texas Health Steps Comprehensive Care Program--A Medicaid comprehensive program approved by CMS under Title XIX, Section 1905 of the Social Security Act, as described in Chapter 363, Subchapter F of this title (relating to Personal Care Services). This includes STAR members who receive these services through the traditional Medicaid service model also referred to as fee-for-service.

(40) Texas Home Living (TxHmL) Program--A Medicaid waiver program approved by CMS under Title XIX, Section 1915(c) of the Social Security Act, as described in 40 TAC Chapter 9, Subchapter N (relating to Texas Home Living (TxHmL) Program and Community First Choice (CFC)).

(41) Youth Empowerment Services Program--A Medicaid waiver approved by CMS under Title XIX, Section 1915(c) of the Social Security Act as described in 26 TAC Chapter 307, Subchapter A (relating to Youth Empowerment Services (YES)).

§354.4005.Applicability.

(a) Entities subject to this subchapter. The requirements in this subchapter apply to a program provider, a consumer directed services (CDS) employer, a financial management services agency (FMSA), a service provider, a member, and a managed care organization (MCO) unless otherwise specified in the text.

(b) Services subject to this subchapter. The use of electronic visit verification (EVV) is required for all service delivery options for the following services:

(1) personal attendant services provided in the Community Attendant Services Program;

(2) personal attendant services provided in the Family Care Program;

(3) personal attendant services provided in the Primary Home Care Program;

(4) Community First Choice (CFC) services delivered through the traditional Medicaid service model also referred to as fee-for-service:

(A) Community First Choice Personal Assistance Services (CFC PAS); and

(B) Community First Choice Habilitation (CFC HAB);

(5) personal care services (PCS) provided under the Texas Health Steps Comprehensive Care Program;

(6) Community Living Assistance and Support Services Program services:

(A) CFC PAS/HAB; and

(B) in-home respite;

(7) Deaf Blind with Multiple Disabilities Program services:

(A) CFC PAS/HAB; and

(B) in-home respite;

(8) Home and Community-Based Services (HCBS) Adult Mental Health Program services:

(A) supported home living - habilitative support; and

(B) in-home respite;

(9) Home and Community-based Services Program services:

(A) CFC PAS/HAB;

(B) respite provided in a member's residence; and

(C) day habilitation provided in a member's residence;

(10) State of Texas Access Reform (STAR) Health Program services:

(A) CFC PAS;

(B) CFC HAB;

(C) PCS; and

(D) Medically Dependent Children Program (MDCP) STAR Health covered service:

(i) in-home respite; and

(ii) flexible family support;

(11) STAR Kids Program services:

(A) CFC PAS;

(B) CFC HAB;

(C) PCS; and

(D) MDCP STAR Kids covered service:

(i) in-home respite care; and

(ii) flexible family support;

(12) STAR+PLUS Program services:

(A) personal assistance services;

(B) CFC PAS; and

(C) CFC HAB;

(13) STAR+PLUS HCBS Program services:

(A) in-home respite care;

(B) protective supervision;

(C) personal assistance services;

(D) CFC PAS; and

(E) CFC HAB;

(14) STAR+PLUS Medicare-Medicaid Plan services:

(A) in-home respite care;

(B) protective supervision;

(C) personal assistance services;

(D) CFC PAS; and

(E) CFC HAB;

(15) Texas Home Living Program services:

(A) CFC PAS/HAB;

(B) respite provided in a member's residence; and

(C) day habilitation provided in a member's residence;

(16) in-home respite provided in the Youth Empowerment Services Program; and

(17) any other service required by federal or state mandates.

§354.4007.EVV System.

(a) Use of an EVV System.

(1) A program provider, consumer directed services (CDS) employer, and financial management services agency (FMSA) must ensure an electronic visit verification (EVV) vendor system or an HHSC-approved EVV proprietary system is used to electronically document the delivery of a service described in §354.4005 of this subchapter (relating to Applicability).

(2) A program provider, CDS employer, and FMSA must:

(A) ensure that each EVV visit transaction contains the following data elements, including identifying information, as required by HHSC, for:

(i) the type of service provided;

(ii) the name of the member who received the service;

(iii) the name of the service provider who provided the service;

(iv) the date of the service;

(v) the time the service began and ended;

(vi) the location, including the address, at which the service was provided; and

(vii) other information HHSC determines necessary to ensure the accurate payment of a claim for services, as described in the EVV Policy Handbook;

(B) ensure the accuracy of the data elements on each EVV visit transaction; and

(C) comply with all HHSC requirements for correcting or noting an inaccurate data element.

(b) Access to an EVV System.

(1) A program provider must allow HHSC or a managed care organization (MCO), with which they contract, immediate, direct, on-site access to the EVV system the program provider uses.

(2) An FMSA must allow HHSC or an MCO with whom the member is enrolled and with whom the FMSA contracts, immediate, direct, on-site access to the EVV system the FMSA uses.

(c) Access to Documentation.

(1) A program provider and an FMSA must ensure that HHSC can review EVV system documentation or obtain a copy of that documentation at no charge to HHSC.

(2) A program provider and an FMSA must ensure an MCO, with which a claim for payment for a service is filed, can review EVV system documentation related to the claim or obtain a copy of that documentation at no charge to the MCO.

§354.4009.Requirements for Claims Submission and Approval.

(a) For a service described in §354.4005 of this subchapter (relating to Applicability), a program provider must:

(1) ensure a service provider accurately documents the service using an electronic visit verification (EVV) system;

(2) ensure that the EVV visit transaction is transmitted and accepted into the EVV aggregator;

(3) submit claims in accordance with:

(A) HHSC's rules;

(B) the EVV Policy Handbook;

(C) managed care organization (MCO) billing requirements, as applicable; and

(D) all other applicable HHSC billing requirements; and

(4) ensure the EVV visit transaction matches the claim submitted to HHSC or the MCO, as described in the EVV Policy Handbook.

(b) For a service described in §354.4005 of this subchapter, a financial management services agency (FMSA) and consumer directed services (CDS) employer must comply with the following requirements:

(1) a CDS employer must ensure a service provider accurately documents the service using an EVV system as described in the EVV Policy Handbook; and

(2) an FMSA must:

(A) ensure that the EVV visit transaction is transmitted and accepted into the EVV aggregator;

(B) submit claims in accordance with:

(i) HHSC's rules;

(ii) the EVV Policy Handbook;

(iii) MCO billing requirements, as applicable; and

(iv) all other applicable HHSC program billing requirements; and

(C) ensure the EVV visit transaction matches the claim submitted to HHSC or the MCO as described in the EVV Policy Handbook.

(c) Failure to comply with the requirements in this section may result in claim denial or recoupment.

§354.4011.Member Rights and Responsibilities.

(a) Notice by HHSC. Under the traditional Medicaid service model, HHSC must inform each member who receives a service described in §354.4005 of this subchapter (relating to Applicability) that the program provider, service provider, and member are required to comply with electronic visit verification (EVV) requirements.

(b) Notice by a managed care organization (MCO). Under the managed care delivery system, an MCO must inform each member who receives a service described in §354.4005 of this subchapter that the program provider, service provider, and member are required to comply with EVV requirements.

(c) Member Rights and Responsibilities. HHSC or an MCO, as applicable, must inform each member of the member's rights and responsibilities regarding EVV.

§354.4013.Additional Requirements.

(a) A program provider, a consumer directed services (CDS) employer, a financial management services agency (FMSA), a service provider, a member, and a managed care organization (MCO) must administer the requirements of this subchapter in an effective, accurate, and efficient manner, in compliance with all applicable state and federal laws, rules, regulations, policies, and guidelines; including the HHSC electronic visit verification (EVV) requirements in the EVV Policy Handbook.

(b) The provisions of this subchapter do not relieve a program provider, CDS employer, an FMSA, a service provider, a member, or an MCO from other obligations under contract, law, or rule related to documentation requirements and compliance with applicable federal and state laws related to confidentiality of a member's information, including the requirements of the Health Insurance Portability Accountability Act of 1966, 42 U.S.C. §1320d, et. seq., and regulations adopted under that act (45 CFR Parts 160 and 164).

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

Filed with the Office of the Secretary of State on September 4, 2020.

TRD-202003639

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 18, 2020

For further information, please call: (512) 438-4809