The Health and Human Services Commission (HHSC), on behalf of the Department of Aging and Disability Services (DADS), adopts new Chapter 68, §§68.101 - 68.103, concerning Electronic Visit Verification (EVV) System, without changes to the proposed text as published in the October 22, 2010, issue of the Texas Register (35 TexReg 9485).

The new chapter is adopted to require a DADS contractor providing certain services and a consumer directed services (CDS) option participant receiving certain services to use an EVV system approved by DADS. In addition, the new chapter requires a CDS agency 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 new chapter occurs as set forth 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 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.

DADS heard oral testimony from ADAPT of Texas, the Personal Attendant Coalition of Texas, the Texas Association for Home Care & Hospice, and five individuals at a public hearing held at 701 West 51st Street, Austin, Texas, on November 17, 2010.

DADS received written comments from the Texas Association for Home Care & Hospice, Cuero Home Health, and two individuals. A summary of the comments and the responses follow.

Comment: One commenter asked what criteria will be used to evaluate success of the pilot.

Response: The pilot will be used to obtain as much information as possible about the implementation of EVV. Several tools are currently being developed that will be used to evaluate provider experience, consumer experience, DADS experience, and fiscal impact of the pilot.

Comment: Three commenters questioned the potential for savings related to EVV and asked to be provided projected savings information.

Response: Data gathered during the pilot program will be used to evaluate any savings realized by the state.

Comment: One commenter indicated that the request for proposal (RFP) differs from the proposed rules in that it excludes the Deaf-Blind with Multiple Disabilities (DBMD) program and requested that DBMD and the Medically Dependent Children Program (MDCP) be exempted from the pilot and the rules.

Response: Due to commenters' concerns regarding the limited number of participants in the DBMD waiver, DBMD is not included in the pilot. However, DBMD is retained in the rule as it could potentially be incorporated if EVV is expanded statewide. The population served by the MDCP program is sufficient to justify inclusion in the EVV pilot and as such will remain in the pilot and the rule.

Comment: Three commenters expressed concern regarding potential increased administrative costs related to the implementation of EVV and requested DADS consider increasing rates to address this concern.

Response: This is beyond the scope of the rule. DADS does not determine provider rates. HHSC manages all cost-reporting and rate-setting activities.

Comment: One commenter recommended that the pilot be implemented in Region 9.

Response: The pilot region will be selected from one of the regions identified in the RFP based on internal analysis and respondent recommendations. The commenter's recommendation will be considered when determining region selection.

Comment: One commenter expressed concern that the use of EVV will result in a more punitive contract monitoring process.

Response: The EVV initiative is not intended to produce a more punitive monitoring process. EVV is intended to find savings and maintain services by verifying that consumers are receiving the services authorized for their support and for which the state is currently being billed. Regardless of the method used to document service delivery, providers, as always, are expected to ensure that services are delivered in accordance with program rules.

Comment: One commenter indicated that the EVV system must have the capability to allow for corrections in the system and not require use of a paper system for corrections.

Response: As a part of the RFP requirement, the proposed EVV system must allow the provider an alternative to a paper correction process (e.g., the ability to identify and designate a system administrator(s) that has the ability to document schedule variances, rationale for schedule variances, and person approving those changes).

Comment: Three commenters suggested that a pattern of fraud has not been demonstrated that would justify the implementation of an EVV system.

Response: The pilot will be used to obtain information about the implementation of EVV. Several tools are currently being developed that will be used to evaluate provider experience, consumer experience, DADS experience, and fiscal impact of the pilot.

Comment: One commenter suggested that agencies who primarily serve individuals in STAR+PLUS areas may decide to terminate their Community Attendant Services and Family Care contracts rather than implement EVV.

Response: DADS acknowledges this concern; however, STAR+PLUS program requirements are outside the purview of DADS; it is a program administered by HHSC.

Comment: One commenter asked if current EVV systems are compatible across languages.

Response: DADS does not currently use an EVV system; however, DADS will consider this question while developing the pilot.

Comment: One commenter noted that some DADS programs allow the clients and the agency to change tasks as clients' needs change, which would require frequent attendant training to enter the tasks for the current service plan.

Response: As a part of the EVV RFP, respondents are required to submit a detailed training plan that illustrates how provider staff will be trained and how service recipients will be informed about the system.

Comment: Six commenters expressed concern that the location tracking element of EVV could restrict the provision of services to a client's home.

Response: The EVV system will not restrict the provision of services to a person's home. Individuals will still be allowed to receive services in accordance with existing program rules, and providers will still be expected to ensure that services are delivered in accordance with program rules, regardless of the type of EVV system that is mandated.

Comment: Six commenters expressed concern that a telephonic system requires attendants to call in. The commenters noted that clients may not have a land line, may not allow the attendant to use the land line, may only have a cell phone, may not allow the attendant to use the cell phone, and may receive service in a location other than their home.

Response: The EVV system will not restrict the provision of services. Individuals will still be allowed to receive services in accordance with existing program rules, and providers will still be expected to ensure that services are delivered in accordance with program rules, regardless of the type of EVV system that is mandated. As a part of the EVV RFP, respondents must provide solutions for these types of situations.

Comment: One commenter noted that the proposed rule has no provision for "companion" cases, where there is more than one individual receiving services at the same location.

Response: As a part of the EVV RFP, respondents should provide a solution for this circumstance in their proposals.

Comment: One commenter noted that attendants are not currently required by rule to list the tasks performed.

Response: For some programs included in the EVV pilot, current rules require a provider to ensure that services are delivered in accordance with the service plan. To evidence that services were delivered in accordance with the service plan, service delivery must be documented. DADS does not intend to modify contract monitoring tools for purposes of the pilot; however, DADS will collect this information through the EVV system.

Comment: Two commenters indicated that the language in the rule is vague and should be deleted or clarified.

Response: The rule allows DADS the flexibility required to implement the EVV pilot, make necessary adjustments to EVV system requirements based on information gathered through the pilot, and to potentially expand use of the EVV system.

Comment: One commenter indicated that the agency should not mandate that providers use a single EVV vendor.

Response: The services of a single vendor will be procured for the EVV system. All providers in the selected region will be required to use the agency-procured EVV system. Providers may also continue to use their existing EVV vendor with whatever services or software they choose or add features to the agency-procured system at their own expense.

Comment: One commenter asked how DADS will have access to the EVV system at any time.

Response: As a part of the EVV RFP, respondents are required to describe how DADS will be given real-time access to the proposed EVV system. The particular technological requirements necessary to create this interface will be evaluated and considered during the proposal review process.

Comment: Six commenters expressed concern that implementation of EVV would increase workload for provider staff.

Response: Data obtained from the pilot will be used to evaluate the effect EVV has on provider staff.

Comment: Six commenters expressed concern that small providers would be incapable of absorbing costs associated with purchase, installation, and training related to implementation of EVV. These individuals noted that this situation could ultimately result in individuals experiencing limited choice in service providers.

Response: The intent of EVV is not to restrict provider selection. Through the RFP process, the agency will procure the services of a single vendor that will be responsible for the provision of EVV services in the pilot region. The pilot will be used to study potential program impacts of EVV implementation.

Comment: Two commenters expressed concerns that the EVV system may infringe upon their right to privacy (i.e., electronically tracking service delivery locations is tantamount to electronically tracking the individual receiving services).

Response: The pilot program outlined in the RFP limits the use of EVV to documentation of services delivered within the home of the individual receiving services. As a part of the RFP, respondents must provide alternative methods of documenting service delivery that occurs outside of the individual's home per program rules.

Comment: One commenter suggested that only large providers be mandated to implement EVV.

Response: During the rule development process, DADS received considerable stakeholder input that indicated the EVV system must be implemented for all providers, large and small, to ensure that it is fair and effective.

The new sections are adopted 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.