The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new §263.2001, concerning Definitions; §263.2003, concerning Types of Individualized Skills and Socialization; §263.2005, concerning Description of On-Site and Off-Site Individualized Skills and Socialization; §263.2007, concerning Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization; §263.2009, concerning Exceptions to Certain Requirements During Declaration of Disaster; §263.2011, concerning Provision of On-Site and Off-Site Individualized Skills and Socialization; §263.2013, concerning Provision of In-Home Individualized Skills and Socialization; §263.2015, concerning Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §263.2017, concerning Staffing Ratios for Off-Site Individualized Skills and Socialization; §263.2019, concerning Discontinuation of Day Habilitation; §263.2021, concerning Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC; §263.2023, concerning Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; §263.2025, concerning Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization; and §263.2027, concerning Enhanced Staffing Rate, in Texas Administrative Code (TAC), new Chapter 263, Subchapter L, Individualized Skills and Socialization.

BACKGROUND AND PURPOSE

Title 42, Code of Federal Regulations (CFR), §441.301(c)(4)(i) - (v), require home and community based settings in programs authorized by §1915(c) of the Social Security Act to have certain qualities, including being integrated in and supporting full access of individuals to the greater community. The Centers for Medicare and Medicaid Services is requiring that states be in compliance with these regulations by March 17, 2023.

The 2020-21 General Appropriations Act (GAA), House Bill 1, 86th Legislature, Regular Session, 2019 (Article II, Health and Human Services Commission, Rider 21) required HHSC to develop a plan to replace day habilitation in its Medicaid §1915(c) waiver programs for individuals with intellectual and developmental disabilities with more integrated services that maximize participation and integration of the individuals in the community.

In accordance with Rider 21, HHSC developed a plan to replace day habilitation provided in the Home and Community-Based Services (HCS), Texas Home Living (TxHmL), and Deaf Blind with Multiple Disabilities (DBMD) Programs with individualized skills and socialization. The plan included the use of staffing ratios while providing off-site individualized skills and socialization to individuals to ensure that the individuals receive more personalized attention and more easily meet their personal goals and to ensure the health and safety of the individuals.

The 2022-2023 GAA, Senate Bill 1, 87th Legislature, Regular Session, 2021 (Article II, Health and Human Services Commission, Rider 23) authorized funding for the provision of individualized skills and socialization in the HCS, TxHmL, and DBMD Programs.

The proposed rules implement the plan required by Rider 21 to replace day habilitation with individualized skills and socialization in the HCS Program and will ensure that HHSC is in compliance with 42 CFR §441.301(c)(4)(i) - (v) by March 17, 2023.

The proposed rules describe the three types of individualized skills and socialization, on-site individualized skills and socialization, off-site individualized skills and socialization, and in-home individualized skills and socialization. The proposed rules require that on-site and off-site individualized skills and socialization be provided by an individualized skills and socialization provider.

The rules requiring a provider of individualized skills and socialization to be licensed in accordance with Texas Human Resources Code Chapter 103, are being proposed in 26 TAC Chapter 559 and published elsewhere in this issue of the Texas Register. The rules in Chapter 559 will require an individualized skills and socialization provider to be licensed as a day activity and health services facility with a special designation for individualized skills and socialization.

The proposed rules include requirements for an individualized skills and socialization provider to make available both on-site and off-site individualized skills and socialization to individuals and meet staffing ratios based on levels of need for off-site individualized skills and socialization.

The proposed rules also include requirements for the provision of in-home individualized skills and socialization including criteria that must be met for an individual to receive the service and that the service must be provided in the residence of the individual receiving the service.

The proposed rules discontinue day habilitation which includes in-home day habilitation effective March 1, 2023.

The proposed rules provide that HHSC may allow program providers to use one or more of the exceptions specified in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. This provision is added to help ensure that providers are able to operate and provide services effectively during a disaster.

The rules implementing individualized skills and socialization in the TxHmL and DBMD Programs are being proposed in 26 TAC Chapter 262 Subchapter J and in 26 TAC Chapter 260, Subchapter I and published elsewhere in this issue of the Texas Register.

SECTION-BY-SECTION SUMMARY

Proposed new §263.2001, Definitions, defines the terms used in the new subchapter including "individualized skills and socialization provider" which is defined as a legal entity licensed in accordance with Texas Human Resources Code Chapter 103.

Proposed new §263.2003, Types of Individualized Skills and Socialization, identifies the three types of individualized skills and socialization.

Proposed new §263.2005, Description of On-Site and Off-Site Individualized Skills and Socialization, provides a general description of on-site and off-site individualized skills and socialization. The proposed new rule also describes where on-site and off-site individualized skills and socialization are provided.

Proposed new §263.2007, Description of and Criteria for an Individual to Receive In-Home Individualized Skills and Socialization, provides a general description of in-home individualized skills and socialization. The proposed new rule also describes the criteria that must be met for an individual to receive in-home individualized skills and socialization.

Proposed new §263.2009, Exceptions to Certain Requirements During Declaration of Disaster, provides that HHSC may allow program providers and service coordinators to use one or more of the exceptions described in the rule while an executive order or proclamation declaring a state of disaster under Texas Government Code §418.014 is in effect. The rule provides that HHSC notifies program providers and local intellectual and developmental disability authorities if it allows an exception to be used and defines "disaster area."

Proposed new §263.2011, Provision of On-Site and Off-Site Individualized Skills and Socialization, describes requirements for providing on-site and off-site individualized skills and socialization, including that an individualized skills and socialization provider make both on-site and off-site individualized skills and socialization available to an individual and that such provider allow an individual to receive off-site individualized skills and socialization without requiring the individual to take a skills test or meet other requirements to receive off-site individualized skills and socialization. The proposed new rule requires individualized skills and socialization to be provided by an individualized skills and socialization provider and that such provider be the program provider or a contractor of the program provider. The proposed new rule also requires an individualized skills and socialization provider to document an individual's or legally authorized representative's decision for the individual not to participate in an activity the individual scheduled for on-site or off-site individualized skills and socialization.

Proposed new §263.2013, Provision of In-Home Individualized Skills and Socialization, describes requirements for providing in-home individualized skills and socialization. The proposed new rule also describes documentation that a program provider must obtain before providing in-home individualized skills and socialization to an individual.

Proposed new §263.2015, Service Limit for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, establishes a combined service limit for on-site, off-site, and in-home individualized skills and socialization.

Proposed new §263.2017, Staffing Ratios for Off-Site Individualized Skills and Socialization, describes the required ratios for off-site individualized skills and socialization of service providers to individuals in the HCS Program and other persons receiving off-site individualized skills and socialization or a similar service. The ratios in the proposed new rule include other persons receiving individualized skills and socialization in the DBMD Program and the TxHmL Program, and other persons receiving a similar service, to ensure that the ratios of service providers to individuals in the HCS Program receiving off-site individualized skills and socialization are maintained. If a ratio described in this section includes individuals with different levels of need (LONs) and other persons receiving off-site individualized skills and socialization or a similar service, the proposed new rule requires that the ratio be the lowest staff ratio required by §263.2017 or other waiver program rules. The proposed new rule requires a service provider of off-site individualized skills and socialization assigned to the individuals and other persons described in a ratio to provide services only to the individuals and other persons represented in the ratio.

Proposed new §263.2019, Discontinuation of Day Habilitation, provides that day habilitation, which includes in-home day habilitation, is not a service in the HCS Program effective March 1, 2023, to ensure HHSC's compliance with 42 CFR §441.301(c)(4) before the deadline established by the Centers for Medicare & Medicaid Services.

Proposed new §263.2021, Including On-Site, Off-Site, and In-Home Individualized Skills and Socialization on an IPC, describes requirements for service coordinators and program providers if an applicant wants to receive on-site, off-site, or in-home individualized skills and socialization, such as including the service on the applicant's person-directed plan and initial individual plan of care (IPC) and developing an implementation plan for the service. The proposed new rule requires a service coordinator to ensure that an initial IPC effective on or after March 1, 2023, does not include day habilitation and requires a program provider to ensure that a renewal IPC effective on or after March 1, 2023, does not include day habilitation. The proposed new rule also requires a program provider or service coordinator to ensure that a revised IPC with an effective date during the period of March 1, 2023, and February 29, 2024 includes only the amount of day habilitation that the program provider provided to the individual before March 1, 2023.

Proposed new §263.2023, Service Provider Qualifications for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, describes the qualifications for a service provider of on-site, off-site, or in-home individualized skills and socialization.

Proposed new §263.2025, Program Provider Reimbursement for On-Site, Off-Site, and In-Home Individualized Skills and Socialization, provides that HHSC pays for on-site, off-site, and in-home individualized skills and socialization in accordance with an individual's LON and the reimbursement rates for on-site, off-site, and in-home individualized skills and socialization. The proposed new rule provides that HHSC pays an approved enhanced staffing rate for off-site individualized skills and socialization for an individual with a LON 1 or LON 5. The proposed new rule prohibits a program provider from submitting a claim for on-site, off-site, or in-home individualized skills and socialization provided during the time an individual's services are suspended or after services are terminated, except that the program provider may submit a claim for the first day of the individual's suspension or termination. The proposed new rule describes the circumstances under which HHSC does not pay or recoups payment from a program provider for on-site, off-site, or in-home individualized skills and socialization. The proposed new rule provides that HHSC does not pay or recoups payment from a program provider for day habilitation provided on or after March 1, 2023. The proposed new rule provides that HHSC conducts provider fiscal compliance reviews to determine whether a program provider is in compliance with the new subchapter.

Proposed new §263.2027, Enhanced Staffing Rate, provides that a program provider may request the enhanced staffing rate for off-site individualized skills and socialization for an individual with a LON 1 or LON 5 and describes how the request must be made. The proposed new rule provides that HHSC approves a request for the enhanced staffing rate if the documentation submitted to HHSC demonstrates that to participate in off-site individualized skills and socialization, the individual requires more service provider support than the individual would receive with the individual's assigned LON. The proposed new rule provides that HHSC may review an approved enhanced staffing rate at any time to determine if it is appropriate and notifies a program provider through the HHSC data system when an enhanced staffing rate is approved or denied. The proposed new rule provides that a program provider may request an administrative hearing if HHSC denies a request for the enhanced staffing rate.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that the cost to state government to pay for the automation changes needed in the Texas Medicaid and Healthcare Partnership (TMHP) automated system to add new service codes to allow program providers to submit claims for individualized skills and socialization is $13,300 General Revenue (GR) funds ($119,700 Federal Funds (FF)), $133,000 All Funds (AF)) for the State Fiscal Year (SFY) 2023 and $0 GR, ($0 FF, 0 AF) for SFYs 2024 - 2027.

During the years the rules will be in effect enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local governments.

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 result in no assumed change 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 expand existing rules;

(7) the proposed rules will not change 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 the rules could have an adverse economic effect on small businesses and micro-businesses due to the cost to comply.

HHSC does not have the data to estimate the number of small businesses or micro-businesses subject to the rule, however as of January 24, 2022, there are 583 HCS program providers. As of January 24, 2022, there are 610 HCS and TxHmL legal entities. Legal entities include program providers that may be contracted to be both HCS program providers and TxHmL program providers and program providers that are only contracted to be HCS program providers or TxHmL program providers.

HHSC did not consider alternative methods to achieve the purpose of the proposed rules for small businesses or micro-businesses because implementing the new rules is necessary to comply with the federal regulations for home and community-based settings in 42 CFR §441.301(c)(4)(i) - (v).

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 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, individuals in the HCS Program will have the opportunity to receive individualized skills and socialization, a new service that provides increased community integration, additional opportunities and supports to be competitively employed, and choice of the settings in which individualized skills and socialization is provided.

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 because program providers may incur costs to update their policies and provide staff training to implement the new rules. However, HHSC lacks sufficient data to determine an estimate of these costs.

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 HEARING

A public hearing to receive comments on this proposal will be held via GoToWebinar on September 7, 2022 from 8:00 a.m. to 12:00 p.m. (central time). The link to register for the GoToWebinar meeting is https://register.gotowebinar.com/register/927810115195515152.

The meeting date and time will be posted on the HHSC website at https://www.hhs.texas.gov/providers/long-term-care-providers/home-community-based-services-hcs or https://www.hhs.texas.gov/providers/long-term-care-providers/texas-home-living-txhml.

Persons requiring further information, special assistance, or accommodations should contact McKenzie Sanchez at TxHmLPolicy@hhs.texas.gov.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

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 22R037" in the subject line.

STATUTORY AUTHORITY

The new sections are 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 agencies, and Texas Human Resources Code §32.021, which authorizes the Executive Commissioner of HHSC to adopt rules necessary for the proper and efficient operation of the Medicaid program.

The new sections affect Texas Government Code §531.0055 and Texas Human Resources Code §32.021.