The Texas Health and Human Services Commission (HHSC) adopts amendments to §353.1302, concerning Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019; and §353.1304, concerning Quality Metrics for the Quality Incentive Payment Program for Nursing Facilities on or after September 1, 2019. The sections are adopted without changes to the proposed text as published in the May 28, 2021, issue of the Texas Register (46 TexReg 3333). The rules will not be republished.

BACKGROUND AND JUSTIFICATION

The amendment is necessary to implement changes to the Quality Incentive Payment Program (QIPP) quality metrics that HHSC may select for each program year as well as certain component funding allocations begining in program year five (i.e., September 1, 2021 through August 31, 2022).

Section 353.1302 is amended to adjust QIPP Component 2 and Component 3 funding allocations as follows: increase the allocation percentage from 30 percent to 40 percent in Component 2 (paid monthly); and decrease the allocation percentage from 70 percent to 60 percent in Component 3 (paid quarterly).

The additional amendments discontinue an unnecessary requirement, provide increased clarity, and ensure that the language in this section corresponds to similar language in other sections of Subchapter O.

Section 353.1304 is amended to remove set types of quality metrics and related performance requirements for each program year in favor of a public notice and hearing process. This change allows the program to be adapted on an annual basis to ensure quality objectives are continually improved. This amendment also clarifies HHSC's validation requirements for reviews of self-reported data in the program.

COMMENTS

The 31-day comment period ended June 28, 2021.

During this period, HHSC received comments regarding the proposed amendment to §353.1304 from three commenters, including The Independent Coalition of Nursing Home Providers, AARP-TX, and the Office of the State Long-Term Care Ombudsman. A summary of the comments relating to §353.1304 and HHSC's responses follows.

Comment: A commenter proposed that HHSC establish, in rule, a collaborative stakeholder workgroup process to develop metrics, potentially using the existing Nursing Home Payment Advisory Committee, and that metrics only be reviewed and updated every 24 months.

Response: HHSC declines to make the suggested change. To date, HHSC has updated the program's quality metrics every two years with input from an informal workgroup of HHSC representatives and public stakeholders. However, confining the State to this schedule and format, via rule, could prevent HHSC from making changes directed by the Centers for Medicare & Medicaid Services (CMS) or the state legislature.

Additionally, QIPP currently requires CMS approval every year and operates as an annual program; establishing in rule a fixed schedule of review and development every 24 months could give the false impression that the program functions in two-year cycles.

Comment: Commenters recommended that qualifying Registered Nurse (RN) hours be met only through in-person services and not through telehealth.

Response: HHSC declines to make the suggested change at this time. The RN coverage measures are intended to incentivize nursing facilities (NFs) to increase RN coverage on evenings and weekends. Permitting clearly defined telehealth services to meet requirements for Component 2 staffing metrics was integral to the development of the overall structure of QIPP and follows national developments in extending domains of care through technological and quality innovation. Allowing for telehealth RN coverage also incentivizes additional coverage in rural communities where in-person services might not be otherwise available.

Comment: Commenters supported the approach of HHSC designating quality metrics to allow for greater flexibility but recommended including language that would designate a staffing component for every QIPP year to include a quality metric related to overall direct care staff hours.

Response: HHSC declines to make the suggested change at this time. The Texas legislature recently directed HHSC to improve the staff-to-patient ratios in nursing facilities participating in the program by January 1, 2025. Revisions to the program's staffing measures will be included in future program years.

STATUTORY AUTHORITY

The amendments are authorized by 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-1), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for Medicaid payments under the Texas Human Resources Code Chapter 32; and by Texas Government Code §533.002, which authorizes HHSC to implement the Medicaid managed care program.