The Texas Health and Human Services Commission (HHSC) proposes to amend §355.105, concerning General Reporting and Documentation Requirements, Methods, and Procedures; §355.112, concerning Attendant Compensation Rate Enhancement; §355.306, concerning Cost Finding Methodology; §355.308, concerning Direct Care Staff Rate Component; §355.503, concerning Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs; §355.505, concerning Reimbursement Methodology for the Community Living Assistance and Support Services Waiver Program; §355.507, concerning Reimbursement Methodology for the Medically Dependent Children Program; §355.509, concerning Reimbursement Methodology for Residential Care; §355.510, concerning Reimbursement Methodology for Emergency Response Services (ERS); §355.511, concerning Reimbursement Methodology for Home-Delivered Meals; §355.513, concerning Reimbursement Methodology for the Deaf-Blind with Multiple Disabilities Waiver Program; §355.5902, concerning Reimbursement Methodology for Primary Home Care; and §355.6907, concerning Reimbursement Methodology for Day Activity and Health Services.

Background and Justification

HHSC, under its authority and responsibility to administer and implement rates, proposes to amend these rules to 1) adopt uniform rules for how some providers may be automatically excused from submitting a cost report, 2) add Day Activity and Health Services (DAHS) to the Community-Based Alternatives (CBA) and Medically Dependent Children Program (MDCP) waiver programs, 3) delete obsolete language to reflect current agency practice, and 4) update references to legacy health and human services (HHS) agencies.

Under certain circumstances, HHSC may excuse a provider not participating in the Attendant Compensation Rate Enhancement from submitting a cost report. These exceptions have varied by program and been inconsistent in application. HHSC proposes to remove these exceptions from the program reimbursement methodology rules and group them together in §355.105(b)(4)(D). HHSC also proposes to put a cross-reference to §355.105(b)(4)(D) in each program reimbursement methodology rule to inform providers where to find the exceptions.

HHSC is also defining circumstances whereby a provider who is participating in the Attendant Compensation Rate Enhancement or the Nursing Facility Direct Care Staff Rate enhancement may be automatically excused from submission of a cost report, an Attendant Compensation Report, or a Nursing Facility Staffing and Compensation Report.

Effective September 1, 2012, HHSC is adding DAHS to the service arrays in the CBA and MDCP waivers. The Centers for Medicare and Medicaid Services (CMS) no longer allows the provision of DAHS in the State Plan to any individuals except those with intellectual and developmental disabilities. Per CMS directive, HHSC is adding DAHS as a service under §1915(i) of the Social Security Act, which allows for wider functional eligibility requirements than the State Plan. However the financial eligibility requirements for §1915(i) are more stringent than the State Plan requirements, so HHSC is adding DAHS to the CBA and MDCP waiver programs. This will allow individuals who are no longer eligible for State Plan DAHS and have income that exceeds the financial eligibility limit for §1915(i) services to continue to receive DAHS. As a result, HHSC is adding a reimbursement methodology for DAHS to CBA and MDCP.

Finally, HHSC is deleting obsolete language to reflect current agency practice and is updating references to legacy HHS agencies.

Section-by-Section Summary

HHSC proposes amendments to §355.105 as follows:

Revise subsection (b) to refer providers to paragraph (4)(D) of this subsection for direction as to when a cost report may be excused.

Revise subsection (b)(4)(D) to describe the conditions under which HHSC will excuse a provider from submitting a cost report, if the provider is not enrolled in the Attendant Compensation Rate Enhancement or the Nursing Facility Direct Care Staff Rate enhancement during the reporting period for the cost report in question.

HHSC proposes amendments to §355.112 as follows:

Add subsection (h)(2)(G) to excuse providers that are participating in the Attendant Compensation Rate Enhancement from submitting a cost report or Attendant Compensation Report if they did not provide any billable attendant services to DADS recipients during the reporting period.

HHSC proposes amendments to §355.306 as follows:

Add new paragraph (1) in subsection (a) to refer providers who are not participating in the rate enhancement program to revised §355.105(b)(4)(D) for conditions under which they may be excused from filing a cost report.

Delete current subsection (a)(2), which describes the reasons a provider may be excused from filing a cost report, as the reasons are now described in §355.105(b)(4)(D).

Revise subsection (e) to indicate when final cost reports are required from facilities that undergo a change of ownership.

HHSC proposes amendments to §355.308 as follows:

Add subsection (f)(2)(G) to excuse providers that are participating in the Nursing Facility Direct Care Staff Rate enhancement from submitting a cost report or Nursing Facility Staffing and Compensation Report if they did not provide any billable services to DADS recipients during the reporting period.

HHSC proposes amendments to §355.503 as follows:

Modify subsection (c)(1) to add DAHS as a service for which a reimbursement methodology will be determined in the CBA program.

Modify subsection (c)(2)(D) to change the name of the Personal Care III setting to Personal Care 3 to be consistent with agency terminology.

Add subsection (c)(7), which defines the reimbursement methodology for DAHS in the CBA program.

Modify subsection (e)(2) to delete the list of reasons a CBA provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete subsection (e)(4)(C) as obsolete language no longer reflecting agency procedures.

HHSC proposes amendments to §355.505 as follows:

Modify subsection (b)(3) to delete the list of reasons a Community Living Assistance and Support Services (CLASS) provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete subsection (c)(3)(C) as obsolete language no longer reflecting agency procedures.

HHSC proposes amendments to §355.507 as follows:

Add new subsection (f), which defines the reimbursement methodology for DAHS in the MDCP program.

HHSC proposes amendments to §355.509 as follows:

In subsection (b) modify paragraph (2) and delete paragraph (3) to delete the list of reasons a residential care services provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete subsection (c)(1)(C) as obsolete language no longer reflecting agency procedures.

Delete subsection (c)(2)(D) as redundant. The language already exists in §355.105(i).

HHSC proposes amendments to §355.510 as follows:

Modify subsection (d)(2) to delete the list of reasons an emergency response services provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete subsection (d)(3)(C) as obsolete language no longer reflecting agency procedures.

HHSC proposes amendments to §355.511(b) as follows:

Modify paragraph (2) to delete the list of reasons a home-delivered meals provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete paragraph (3) as no longer necessary.

Delete paragraph (4)(C) as obsolete language no longer reflecting agency procedures and renumber the subsequent paragraphs.

HHSC proposes amendments to §355.513(e) as follows:

Modify paragraph (2) to delete the list of reasons a Deaf-Blind Multiple Disabilities (DBMD) provider may be excused from filing a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete paragraph (3)(C) as obsolete language no longer reflecting agency procedures.

HHSC proposes amendments to §355.5902(b) as follows:

Modify paragraph (1) to delete the list of reasons a primary home care provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Delete paragraph (2)(B) as obsolete language no longer reflecting agency procedures.

HHSC proposes amendments to §355.6907 as follows:

Delete subsection (d)(3) as obsolete language no longer reflecting agency procedures.

Modify subsection (e) to make the wording about desk reviews consistent with that in other programs.

Modify subsection (f)(1) to delete the list of reasons a DAHS provider may be excused from submitting a cost report and replace it with a reference to revised §355.105(b)(4)(D).

Make changes throughout the section to remove references to legacy HHS agencies and replace with the current agency names.

Fiscal Note

Gordon E. Taylor, Chief Financial Officer for the Department of Aging and Disability Services, has determined that during the first five-year period the amendments are in effect there will be no fiscal impact to state government. The amendments will not result in any fiscal implications for local health and human services agencies. There are no fiscal implications for local governments as a result of enforcing or administering the sections.

Small Business and Micro-business Impact Analysis

Pam McDonald, Director of Rate Analysis, has determined that there will be no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendments. The proposed amendments do not require any changes in practice or any additional cost to a contracted provider.

HHSC does not anticipate that there will be any economic cost to persons who are required to comply with these amendments. The amendments should not affect local employment.

Public Benefit

Ms. McDonald has also determined that, for each of the first five years the amendments are in effect, the expected public benefit is that the rules will clarify and consolidate in a central location the reasons whereby a provider may be excused from submitting a cost report and that obsolete language and references to legacy agencies will be removed from the rules. In addition, there is expected public benefit that individuals no longer eligible for State Plan DAHS may continue to receive DAHS.

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 Texas Government Code §2007.043.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Public Comment

Questions about the content of this proposal may be directed to Judy Myers in the HHSC Rate Analysis Department by telephone at (512) 491-1179. Written comments on the proposal may be submitted to Ms. Myers by fax to (512) 491-1998; by e-mail to judy.myers@hhsc.state.tx.us; or by mail to HHSC Rate Analysis, Mail Code H400, P.O. Box 85200, Austin, Texas, 78708-5200, within 30 days of publication of this proposal in the Texas Register.

Statutory Authority

The amendments are proposed under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the Commission's duties; Texas Human Resources 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; and Texas Government Code §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.

The amendments affect Texas Government Code, Chapter 531 and Texas Human Resources Code, Chapter 32. No other statutes, articles, or codes are affected by this proposal.