The Texas Health and Human Services Commission (HHSC) adopts the repeal of §354.1177, concerning Electronic Visit Verification (EVV) System, 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. New §§354.4001, 354.4003, 354.4005, 354.4007, 354.4009, 354.4011, and 354.4013 are adopted without changes to the proposed text as published in the September 18, 2020, issue of the Texas Register (45 TexReg 6430). These rules will not be republished.

BACKGROUND AND JUSTIFICATION

HHSC currently has rules concerning EVV in Titles 1 and 40 of the Texas Administrative Code (TAC). This proposal consolidates the EVV rules into one location, implements federal and state requirements for the Texas EVV system, and removes unnecessary or duplicative rules from TAC. The new rules in Chapter 354, Subchapter O also implement the requirements for the Texas EVV system to electronically verify that Medicaid-funded personal care services are provided to a member in accordance with a prior authorization or plan of care, as applicable to the program in which the member receives the service. An EVV system electronically verifies and documents basic information relating to the delivery of services, such as the member's name and the precise time the service begins and ends. HHSC requires the use of an EVV system to help ensure that members receive services authorized for their care, ensure accurate Medicaid payments and to prevent fraud, waste and abuse.

The new rules are based on federal and state laws that require HHSC to implement EVV, specifically, Title XIX, Section 1903(l) of the Social Security Act (42 United States Code Section 1396b), as amended by Section 12006 of the 21st Century Cures Act; Texas Government Code Section 531.024172, as amended by Senate Bill 894, 85th Legislature, Regular Session, 2017; and Texas Human Resources Code Section 161.086.

COMMENTS

The 31-day comment period ended October 19, 2020.

During this period, HHSC received five comments regarding the proposed rules from Simplex Health and Senior Helpers. A summary of comments relating to the rules and HHSC's responses follows.

Comment: One commenter opposed the new rules stating provider agencies are unfamiliar with EVV.

Response: HHSC disagrees with this comment and has released multiple communications for stakeholder engagement and preparation for the EVV implementation. HHSC has also provided multiple ways stakeholders can complete EVV training, such as instructor-led webinars and self-paced online computer-based training.

Comment: One commenter expressed concerns about recoupments related to EVV stating provider agencies are bearing the brunt of recoupments after a service was provided and reimbursed.

Response: HHSC disagrees with this comment because the new rules outline the EVV process and reduce the opportunity for recoupment because HHSC or a managed care organization will not reimburse a claim for an EVV-required service without matching EVV data supporting the claim. HHSC also provides opportunities for program providers and financial management services agencies to complete EVV policy training which explains the EVV process.

Comment: One commenter stated that EVV is too costly to maintain.

Response: HHSC disagrees with this comment because HHSC must implement the federal EVV requirement for all Medicaid personal care services by January 1, 2021, or risk non-compliance with federal law which will reduce the state's federal medical assistance percentage. This reduction in federal Medicaid matching dollars will impact available funding for Medicaid services in Texas.

Comment: One commenter supported the new rules and expressed concern for the Texas Medicaid reimbursement rate affecting a service attendant's wages for purchasing a smartphone and maintaining a phone plan to access the EVV system.

Response: HHSC acknowledges the concern and is expanding EVV-related questions on cost reports beginning in cost report year 2020. HHSC will consider the cost report data during its regular biennial fee reviews and legislative appropriation request process to recommend future rates to the Texas legislature. HHSC has also implemented multiple ways a service attendant can access the EVV system if a smartphone is not an option, such as a member's home landline phone or an electronic device that does not rely on an internet connection or phone service.

Comment: One commenter also expressed concern for reliable internet service coverage in rural parts of the state for service attendants who access the EVV system using a smartphone.

Response: HHSC acknowledges the concern and allows the smartphone application to capture service delivery information when access to the internet is temporarily unavailable and will then upload that information once an internet connection is reestablished. Service attendants can also access the EVV system through the member's home landline phone or by using an electronic device that does not rely on an internet connection or phone service.

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.