The Texas Health and Human Services Commission (HHSC) proposes, on behalf of the Department of Aging and Disability Services (DADS), new Chapter 68, §§68.101 - 68.103, concerning Electronic Visit Verification (EVV) System.

BACKGROUND AND PURPOSE

The purpose of the new chapter is to require a DADS contractor providing certain services and a Consumer Directed Services (CDS) option participant receiving certain services to use an electronic visit verification (EVV) system approved by DADS. In addition, the proposed new chapter requires a CDS agency (CDSA) to make an EVV system approved by DADS available to a CDS option participant.

An EVV system approved by DADS will verify that a scheduled visit of a person providing a service described in the proposed new chapter occurs as described in the service plan of the individual receiving the service. An EVV system also documents the precise time the scheduled visit begins and ends and the specific tasks performed. By requiring the use of an EVV system for certain services, DADS expects to realize an increase in the accuracy of service delivery documentation and a reduction in billing errors and fraudulent reporting of time worked.

SECTION-BY-SECTION SUMMARY

Proposed new §68.101, concerning application, describes the services for which an EVV system must be used.

Proposed new §68.102, concerning definitions, defines the terms used in this chapter.

Proposed new §68.103, concerning use and availability of EVV system, describes the persons and entities that must use an EVV system and the requirements for using an EVV system.

FISCAL NOTE

Gordon Taylor, DADS Chief Financial Officer, has determined that, for the first five years the proposed new sections are in effect, enforcing or administering the sections has potential implications relating to costs or revenues of state or local governments. By increasing the accuracy with which services are documented, EVV technology reduces the potential for funds to be lost to billing errors and fraudulent reporting of time worked. While it is not possible to accurately estimate the amount that may be realized by reducing losses related to administrative errors and fraudulent reporting, initial research and anecdotal evidence indicate that the potential savings have been significant enough to encourage service providers and state governments to implement and maintain EVV systems.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

DADS has determined that the proposed new sections could have an adverse economic effect on small businesses or micro-businesses, because mandating implementation of EVV may cause contractors to incur initial costs resulting from the purchase of necessary system components (e.g., hardware, software, etc.). It is also possible that mandating implementation of EVV will cause contractors to incur recurring system maintenance costs and EVV transaction costs.

DADS' records indicate that approximately 2000 businesses provide the services subject to the proposed new sections. DADS does not have specific data regarding the number of these businesses that are formed for the purpose of making a profit, the number of their employees, or the amount of their gross receipts, which is necessary to determine how many of them meet the definitions of "small business" or "micro-business."

DADS cannot determine the specific initial or recurring costs that would be incurred by contractors because those costs vary significantly, depending on the type of system implemented by the provider.

Several options were considered in determining how to achieve the purpose of the proposed rules. Current statute does not mandate that DADS implement EVV technology in the affected programs. Therefore, DADS considered not imposing any new rules regarding EVV. DADS determined this option was not consistent with its responsibility as a steward of state and federal funds. DADS also considered the possibility of developing a proposal that would promote EVV as a readily available alternative to traditional timekeeping methods. This approach would encourage EVV use but would not mandate its implementation. DADS determined this option would not specifically address the need to limit funds lost through fraud. Finally, DADS considered the possibility of imposing a one percent rate cut on the programs in question. While this option would have resulted in cost reductions, DADS determined a one percent rate cut would have created greater impact on businesses and would not have addressed the need to improve timekeeping and payment accuracy.

PUBLIC BENEFIT AND COSTS

Jon Weizenbaum, DADS Deputy Commissioner, has determined that, for each year of the first five years the new sections are in effect, the public benefit expected as a result of enforcing the sections is an increase in the accuracy of service delivery documentation and a reduction in billing errors and fraudulent time sheet reporting.

Mr. Weizenbaum anticipates that there will be an economic cost to persons who are required to comply with the new sections as noted above. The new sections will not affect a local economy.

TAKINGS IMPACT ASSESSMENT

DADS 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 Texas Government Code, §2007.043.

PUBLIC COMMENT

Questions about the content of this proposal may be directed to Calvin Green at (512) 438-3765 in DADS' Center for Program Coordination. Written comments on the proposal may be submitted to Texas Register Liaison, Legal Services-9R035, Department of Aging and Disability Services W-615, P.O. Box 149030, Austin, Texas 78714-9030, or street address 701 West 51st St., Austin, Texas 78751; faxed to (512) 438-5759; or e-mailed to rulescomments@dads.state.tx.us. To be considered, comments must be submitted no later than 30 days after the date of this issue of the Texas Register. The last day to submit comments falls on a Sunday; therefore, comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered to DADS before 5:00 p.m. on DADS' last working day of the comment period; or (3) faxed or e-mailed by midnight on the last day of the comment period. When faxing or e-mailing comments, please indicate "Comments on Proposed Rule 9R035" in the subject line.

STATUTORY AUTHORITY

The new sections are proposed under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS; and Texas Government Code, §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program.

The new chapter affects Texas Government Code, §531.0055 and §531.021, and Texas Human Resources Code, §161.021.