The Texas Health and Human Services Commission (HHSC) adopts new §353.1302, concerning Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019, without changes to the proposed text as published in the October 12, 2018, issue of the Texas Register (43 TexReg 6715). HHSC also adopts the amendments to §353.1303 concerning Quality Incentive Payment Program for Nursing Facilities before September 1, 2019 and new §353.1304, concerning Quality Metrics for the Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019, with changes to the proposed text as published in the October 12, 2018, issue of the Texas Register (43 TexReg 6715).

BACKGROUND AND JUSTIFICATION

In order to continue incentivizing nursing facilities to improve quality and innovation in the provision of nursing facility services, HHSC is adopting new quality metrics, eligibility requirements, and financing components for the Quality Incentive Payment Program for Nursing Facilities (QIPP) to begin in program year 3 (i.e., September 1, 2019, through August 31, 2020).

The QIPP is a type of Medicaid managed care delivery system and provider payment initiative, or directed payment program. Such programs require annual approval from the Centers for Medicare & Medicaid Services (CMS). In April of 2017, CMS approved the QIPP for implementation on September 1, 2017, and HHSC adopted Texas Administrative Code §353.1301 and §353.1303 to govern the program. The QIPP is now in its second year, which began on September 1, 2018.

While still a very young program, HHSC heard stakeholder calls to expand the QIPP to allow more Medicaid nursing facility clients to benefit. HHSC also received feedback from CMS when it approved year 2 of the program that the QIPP quality measures should be modified and enhanced in future program years.

With these goals in mind, HHSC convened a series of workgroup meetings during June, July, and August 2018. The workgroup included private and public nursing facility owners and operators, managed care organizations, and advocacy groups representing nursing facility providers and clients. This rule adoption emerged from these workgroup meetings.

Existing §353.1301 is not being amended at this time. Existing §353.1303 has been modified to make it applicable to the program's operation before September 1, 2019, and new §353.1302 and §353.1304 will apply to the program's operation beginning September 1, 2019. In §353.1304, the text of subsections (c) and (g) has been changed from what was proposed to clarify that the Registered Nurse (RN) staffing metrics can be met by an RN, Advanced Practice Registered Nurse, Nurse Practitioner, Physician Assistant, or physician (Medical Doctor or Doctor of Osteopathic Medicine).

COMMENTS

The 30-day comment period ended November 12, 2018.

During this period, HHSC received comments regarding the proposed amendment and new rules from three entities, including:

Daybreak Ventures;

Ensign Services; and

Healthcare Support Management.

A summary of comments relating to the rules and HHSC's responses follows.

Comment: One commenter appreciated that new §353.1302 sets the Medicaid utilization percentage that determines private nursing facility eligibility in QIPP at 65 percent.

Response: HHSC agrees that setting the Medicaid utilization percentage at 65 percent for private nursing facility eligibility will increase participation of private nursing facilities in the program, thereby incentivizing more facilities to improve quality of care for Medicaid clients.

Comment: One commenter expressed concerns that the recruitment and retention metric in new §353.1304(c) would be difficult to achieve due to high staff turnover caused by nursing facility rates that have been static since 2014.

Response: HHSC understands the challenge in recruiting additional long term care staff to fulfill the Registered Nurse (RN) staffing metric in Component Two. HHSC declines to make any changes to these quality metrics at this time. The quality metrics will ultimately be determined in a public hearing per §353.1304(e). The additional RN staffing hours portion of the Component can be fulfilled by using Telehealth services, which would allow providers to reach the staffing requirements while potentially mitigating the need to hire additional staff. The recruitment and retention program in proposed Component Two includes the creation of a recruitment and retention plan. The purpose of the metric is to provide additional financial resources for staff recruitment.

Comment: One commenter expressed concern that private nursing facilities are not eligible to participate in Component Four per §353.1302(g)(4)(D) as infection control is equally important in private nursing facilities.

Response: HHSC acknowledges the importance of infection control in all nursing facilities. However, Non-State Government Owned Nursing Facilities (NSGOs) have an intrinsic responsibility in the area of public health. HHSC declines to make the suggested change at this time.

Comment: One commenter asked whether the additional RN hours in the staffing metric in Component Two are in addition to Director of Nursing Hours, if there are any specific hours specified, and whether the hours can be fulfilled by a/an RN, Advanced Practice Registered Nurse (APRN), Physician Assistant (PA), or physician.

Response: HHSC intends that these hours are in addition to any current staffing at the facility and cannot be duplicative of or concurrent with other staffing duties. Likewise, the additional Component Two staffing hours must be "beyond and non-concurrent with" the CMS-mandated eight hours of on-site RN coverage per day per §353.1304(c)(4). The facility may provide the additional eight hours (in full or in part) by telehealth coverage as described in §353.1304(g). HHSC currently does not require specific hours of the day for additional coverage, and does not intend to specify any further conditions on when the hours occur. HHSC is amending subsections (c) and (g) of §353.1304 to clarify that the additional staffing hours, whether provided on-site or by telehealth, can be provided by RNs, nurse practitioners, APRNs, PAs, and physicians (Medical Doctors or Doctors of Osteopathic Medicine).

Comment: One commenter suggested a different process for the reconciliation described in §353.1301(g). The commenter suggested revising §353.1303(f)(3) so that HHSC reconciles the amount of the non-federal funds actually expended under this section during each eligibility period with the amount of funds transferred to HHSC by the sponsoring governmental entities for that same period using the methodology described in §353.1301(g) of this subchapter, except when the Per Member Per Month (PMPM) utilization within the various SDAs is not proportionately distributed to the rate setting PMPM calculated.

Response: Intergovernmental transfer (IGT) suggestions made by HHSC are based upon the NSGO facilities' historical Medicaid days compared to the total NSGO days in the program. As such, IGT suggestions are calculated using a statewide distribution and should be refunded on the same basis that they are collected. HHSC declines to make the suggested change at this time.

STATUTORY AUTHORITY

The amendment and new rules are adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; 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; Texas Government Code §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance (Medicaid) payments under Texas Human Resources Code Chapter 32; and Texas Government Code §533.002, which authorizes HHSC to implement the Medicaid managed care program.