The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §354.1177, concerning Electronic Visit Verification (EVV) System, in Subchapter A, Division 11; and new §354.4001, concerning Purpose and Authority; §354.4003, concerning Definitions; §354.4005, concerning Applicability; §354.4007, concerning EVV System; §354.4009, concerning Requirements for Claims Submission and Approval; §354.4011, concerning Member Rights and Responsibilities; and §354.4013, concerning Additional Requirements, in new Subchapter O, Electronic Visit Verification.

BACKGROUND AND PURPOSE

HHSC currently has rules concerning EVV in Titles 1 and 40 of the Texas Administrative Code (TAC). The purpose of this proposal is to consolidate the EVV rules into one location, implement federal and state requirements for the Texas EVV system, and remove unnecessary or duplicative rules from TAC. The repeals for the EVV-related rules in 40 TAC, Chapter 68, are proposed elsewhere in this issue of the Texas Register.

The Texas EVV System began as a state-mandated system and is in the process of changing in compliance with current state law and newly enacted federal law. An EVV system electronically verifies information relating to the delivery of services, such as the type of service provided; the name of the member who received the service; the name of the provider who provided the service; the date the service was provided; and the time the service began and ended. HHSC requires the use of an EVV system to help ensure that members receive services authorized for their care, to ensure accurate Medicaid payments, and to prevent fraud, waste and abuse.

The proposed new rules apply to program providers, Consumer Directed Services (CDS) employers, Financial Management Services Agencies (FMSAs), service providers, members, and managed care organizations (MCOs). The proposed new rules list the services subject to the use of EVV.

SECTION-BY-SECTION SUMMARY

The proposed repeal of §354.1177, Electronic Visit Verification (EVV) System, deletes the rule that is no longer necessary, because the rules for EVV will be addressed in the proposed new Chapter 354, Subchapter O.

Proposed new §354.4001 describes the purpose of the rules in Subchapter O and references the federal and state laws that authorize HHSC to implement the requirements of the rules.

Proposed new §354.4003 provides definitions for terminology used in the subchapter.

Proposed new §354.4005 states that the rules in Subchapter O apply to a program provider, a CDS employer, an FMSA, a service provider, a member, and an MCO unless otherwise specified in the rules. The proposed new rule also lists the services subject to the use of EVV.

Proposed new §354.4007 (1) requires the use of an EVV system by program providers, CDS employers, and FMSAs to electronically document delivery of the services listed in §354.4005; (2) lists data elements that must be included to verify service delivery in order to receive payment for an EVV-relevant claim; and (3) provides mandates related to the accuracy of the data. The rule also addresses mandatory HHSC and MCO access to the EVV system and documentation.

Proposed new §354.4009 outlines the requirements for accurately submitting an EVV-relevant claim for reimbursement and the consequences for non-compliance with the rule. The proposed rule also addresses program provider requirements and requirements for CDS employers and FMSAs.

Proposed new §354.4011 addresses the notices that HHSC and the MCOs must provide relating to compliance with EVV and requires HHSC or the MCO to provide members with notice of their rights and responsibilities regarding EVV.

Proposed new §354.4013 requires that program providers, CDS employers, FMSAs, service providers, members, and MCOs must administer the EVV requirements in an effective, accurate, and efficient manner, in compliance with all state and federal laws, rules, regulations, policies, and guidelines. The proposed rule also addresses compliance with the EVV Policy Handbook, obligations under contract or law regarding documentation requirements, and compliance with applicable federal and state laws regarding confidentiality of a member's information.

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rules as proposed. The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $2,106,521.06 in Federal Funds (FF) ($2,815,361.41 All Funds (AF)) in state fiscal year (SFY) 2021, $2,127,495.52 FF ($2,843,327.36 AF) in SFY 2022, $2,148,701.32 FF ($2,871,601.76 AF) in SFY 2023, $2,170,061.34 FF ($2,900,081.79 AF) in SFY 2024, and $2,191,652.70 FF ($2,928,870.27 AF) in SFY 2025.

Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will require an increase in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

(5) the proposed rules will create new rules;

(6) the proposed rules will repeal an existing rule;

(7) the proposed rules will increase the number of individuals subject to the rules; and

(8) the proposed rules will not affect the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be an adverse economic effect on small businesses or micro-businesses. No rural communities are EVV program providers.

The adverse economic effect on small businesses or micro-businesses is the cost to comply with the proposed rules for provider agencies, CDS employers, and FMSAs not currently required to use EVV. The cost to comply may include implementing the use of an EVV system; purchase or management of EVV equipment such as alternative device delivery; the purchase of a mobile device for a service provider; usage of the mobile application on a mobile device; training and educating new members about EVV; compliance monitoring by service providers in all processes required to verify service delivery through the use of EVV; and to ensure all data elements required by HHSC are uploaded or entered completely and accurately into the EVV system before billing for service delivery.

HHSC lacks sufficient data to estimate the number of and economic impact to small businesses or micro-businesses subject to the proposed rules.

HHSC determined that there are no alternative methods to achieve the purpose of the proposed rules for small businesses, micro-businesses, or rural communities because the proposed rules are required by state and federal law.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the proposed rules are necessary to receive a source of federal funds or comply with federal law.

PUBLIC BENEFIT AND COSTS

Stephanie Stephens, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from having a consolidated rule base that contains the requirements for EVV. The public will also benefit from rules intended to ensure (1) members receive authorized services, (2) prevention of fraud, waste, and abuse, and (3) compliance with federal law.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs by implementing the use of an EVV system; delivering EVV equipment to a Medicaid recipient's home such as an alternative device; choosing to purchase a mobile device for a service provider; using the mobile application on a mobile device; training and educating new members about EVV; monitoring compliance of service providers to verify service delivery through the use of EVV; and ensuring all data elements required by HHSC are uploaded or entered completely and accurately into the EVV system before billing for service delivery. HHSC does not have sufficient data to estimate these costs to comply.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the 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

Written comments on the proposal may be submitted to E. Frechette, Program Specialist, Mail Code W-465, 701 W. 51st Street, Austin, Texas 78751; or by email to Electronic_Visit_Verification@hhsc.state.tx.us.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 19R025" in the subject line.

STATUTORY AUTHORITY

The repeal is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resource 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.

The repeal is issued in accordance with §1903(l) of the Social Security Act [42 United States Code §1396b] and implement Texas Government Code §531.024172 and Texas Human Resources Code §161.086.