The Texas State Board of Social Worker Examiners (board) proposes an amendment to §781.301 allowing social work associates (SWAs), licensed social workers (LSWs), and licensed master social workers (LMSWs) to engage in private independent practice as defined in 22 TAC §781.102 by providing case management services for the Texas Health Steps Medical Case Management (THSteps MCM) Program administered by the Texas Department of Health (department).

In response to a class action lawsuit, Frew v. Gilbert, brought on behalf of all Texas Medicaid enrollees age 0-21 eligible for Early and Periodic Screen, Diagnosis and Treatment (EPSDT), the department entered into a consent order in February 1996, to implement changes to the THSteps program. THSteps is the Texas name for the federally mandated EPSDT program. One component of the program involves an outreach to recruit medical case managers to help Medicaid recipients under 21 years of age obtain federally mandated health services. The THSteps MCM rules provide that case management services may be provided by all levels of Texas licensed social workers as well as other licensed professionals. The new case management services began in January 1998, and are contained in rules adopted by the THSteps MCM program in November 1997.

Thereafter, the board questioned whether the eligibility requirements for medical case managers are in conflict with the rule implementing the Texas Professional Social Work Act at 22 TAC §781.102 that defines private independent practice. Under the THSteps MCM rules, providers may be licensed social workers at any level as long as they have a bachelor's degree. Under the Social Work rules, social workers who function as THSteps medical case managers are engaging in "private, independent practice" and only those licensed as a LMSW-ACP or LMSW-AP may engage in the private, independent practice of social work under 22 TAC §781.301(b). Another issue to be considered is those licensed social workers who meet THSteps Medical Case criteria to participate as case managers may work as independent Medicaid providers and direct bill a third party payor under their own Medicaid provider number unique to the THSteps MCM program. The THSteps MCM case manager bills the Medicaid Claims Administrator, National Heritage Insurance Corporation (NHIC), as an independent Medicaid provider for third party reimbursement for case management services rendered. The model of the independent Medicaid provider working in an unsupervised setting who sees clients in his/her own office or in the client's home, and who bills directly for reimbursement to clients or to third party payors, fits the criteria for the practice model the board has interpreted as private independent practice. The board agrees that the services provided by this program are appropriate for SWAs, LSWs and LMSWs to perform. The issue is not the setting in which the case manager is providing these services or the agency who is responsible for supervising and overseeing the case manager; it is the case manager who is providing this on their own with no agency oversight or supervision. The board agrees that the case management services offered by the THSteps MCM program are appropriate for SWAs, LSWs, and LMSWs to provide.

Data provided by the THSteps MCM program documents that approximately 110,720 of the 1.2 million of Texas children (approximately 7%) are potentially eligible for the services provided by this program. THSteps MCM also documented the limited number of LMSW-ACPs or LMSW-APs (ACP/AP) throughout the state to service the large number of potential recipients of this program. There are only approximately 5,000 ACP/AP licensees in Texas. The rural areas have an even greater need for having other than ACPs/APs provide the medical case management services as the majority of ACP/AP license holders reside in more urban areas. In fact, there are several counties in Texas that do not have any ACPs/APs as county residents. In addition, according to the THSteps staff, very few licensed ACPs/APs have applied to be medical case management providers. This type of work probably will not draw a large number of ACPs/APs because of the reimbursement rates and counties of residence of ACP/APs and eligible children. THSteps MCM staff believes that non ACP/AP Social Workers have historically provided case management services and the licenses they hold are a good match for meeting the needs of the children in this program.

Therefore, a documented need exists to justify this rule change. This need is based on the fact that the federally mandated court order in the Frew case requires the department to make available case management services to every county or clusters of counties where Medicaid recipients reside. By using only APs and ACPs, the department cannot recruit the needed number of providers. Although the board determined that the case management services are "private independent practice" as defined in its rules, it believes that an exception should be allowed to its rule in §781.301(b). The board bases its conclusion on these factors: (1) the pressing and ongoing medical need, (2) social workers at all levels may be qualified to provide the services, (3) there is training and quality assurance oversight provided by TDH, and (4) the third party Medicaid billing number is limited to only the THSteps MCM program. This rule does not and will not affect those social workers that are employed by an agency to provide the identified services of the THSteps MCM program.

Andrew T. Marks, LMSW, Executive Director, has determined that for the first five years the section as proposed is in effect, if adopted, there would be no fiscal implications for state or local governments. However, if the proposed rule is not adopted there could be fiscal impact on state and local government due to increased unemployment claims by ineligible social workers. Additionally, the board will endure costs associated with the enforcement and sanctioning of social workers, not licensed at the independent practice level who may continue to participate in the THSteps MCM program.

Mr. Marks has also determined that for each of the first five years the section is in effect, the public benefits anticipated as a result of enforcing or administering the amendment will be to ensure the appropriate regulation of social workers, continue to identify competent practitioners to ensure public safety, health and welfare and to clarify settings in which licensed social workers can work. There will be no impact for small or micro businesses, as the proposed rule would not affect them. If the proposed rule passes there would be no negative economic impact on local employment or individuals who would be required to comply with the rule. However if the proposed rule is not adopted there may be economic impact on individuals who will not be eligible to contract with the THSteps MCM program resulting in potential unemployment of those individuals. Additionally, there may be economic impact on local employment due to increased absenteeism of program participants because of the reduced availability of social work services.

Comments on the proposed rule may be submitted to Andrew T. Marks, LMSW, Executive Director, Texas State Board of Social Worker Examiners, 1100 West 49th Street, Austin, Texas 78756-3183, telephone (800) 232-3162 or (512) 719-3521, (512) 834-6785 (fax). Comments will be accepted for 45 days following publication of this proposal in the Texas Register.

The amendment is proposed under the Texas Professional Social Work Act, Occupations Code §505.201(a)(1) which provides the Texas State Board of Social Worker Examiners with the authority to adopt rules that are necessary to administer the Act and §505.307 relating to private independent practice recognition.

The amendment affects the Occupations Code, Chapter 505.