CLASS CSA, CLASS, DSA, HCS, TxHmL, CDA, and Local Authorities:

DADS is expanding utilization management and review activities for its Medicaid community entitlement and waiver programs, effective January 1, 2012. (Letter)

ADC, ALF, HCSSA, ICF/ID, and NF:

Beginning March 1, 2012, if the name of an applicant or associated person is listed in a health and human services agency record of adverse licensing, DADS may deny the person’s application for a license or renewal. (Letter)

Hospice, ICF/ID, and NF:

DADS clarified how to apply CMS S&C Letter 11-30-NH in the context of DADS’ current incident reporting requirements. An excerpt:

Here are some points of guidance with regard to applying the provisions of S&C 11-30-NH in the context of DADS’ current incident reporting requirements:

• Section 1150B requires reporting of “any reasonable suspicion of a crime” to at least one local law enforcement agency of jurisdiction and to DADS. Reports to DADS (and the Department of Family and Protective Services, if appropriate) must also be made in accordance with current reporting guidelines as outlined in Provider Letter 06-12 and 40 TAC §97.249 (Hospice), Provider Letter 06-43 (NF), Provider Letter 09-02 (non-licensed ICF/ID) and Provider Letter 10-24 (licensed ICF/ID).

• Facilities, per page 3 of S&C 11-30, should coordinate with local law enforcement entities to determine what actions are considered crimes within their political jurisdiction. In the event more than one local law enforcement entity may have jurisdiction, such as a local police or sheriff’s department, DADS recommends facilities confirm which law enforcement entity should receive reports. DADS also recommends that owners, operators, employees, managers, agents or contractors of facilities and agencies review the Texas Penal Code, in particular the offenses in Chapters 22 (Assaultive Offenses), 31 (Theft) and 32 (Fraud). The Texas Penal Code is available on the Texas Legislature’s website at http://www.statutes.legis.state.tx.us/. Incidents of abuse, neglect and exploitation reported to law enforcement may result in a criminal investigation for one or more of the offenses in Chapters 22, 31 or 32.

Public Notices

HHSC adopted a new per diem payment rate for the Tyler state-owned veterans nursing facility: $237.00. HHSC intends to submit to CMS a request to amend the Youth Empowerment Services waiver to expand the geographical area of the waiver to include Tarrant County in addition to Bexar and Travis Counties. See the Texas Register for more information.

Proposed Rules

HHCS proposes to amend §355.105, General Reporting and Documentation Requirements, Methods, and Procedures; §355.112, Attendant Compensation Rate Enhancement; §355.308, concerning Direct Care Staff Rate Component; §355.503, Reimbursement Methodology for the Community-Based Alternatives Waiver Program and the Integrated Care Management-Home and Community Support Services and Assisted Living/Residential Care Programs; §355.505, Reimbursement Methodology for the Community Living Assistance and Support Services Waiver Program; and §355.5902, Reimbursement Methodology for Primary Home Care.

The proposed changes would:

1) formalize certain existing practices; 2) clarify due dates for consolidated cost reports; 3) change how entities request that their cost reports be aggregated for purposes of determining compliance with Attendant Compensation Rate Enhancement (the Enhancement) spending requirements; 4) eliminate the requirement that all contracts in an aggregated group participate in the Enhancement at the same level; and 5) allow providers subject to a recoupment for failure to meet Enhancement spending requirements on a specific Attendant Compensation Report, and providers subject to recoupment for failure to meet Direct Care Staff Rate staffing and/or spending requirements on a specific Staffing and Compensation Report, to, in certain situations, request that HHSC recalculate their recoupment after combining that report with the provider’s next cost report or Attendant Compensation or Staffing and Compensation Report, as appropriate.

The Texas Medical Board proposes to amend §185.4, Procedural Rules for Licensure Applicants, which  provides grounds for the extension of licensure applications that have been on file with the Board for over one year and allow for an alternative licensure process for military spouses. See the Texas Register for details.

Withdrawn Rules

HHSC withdrew the proposed repeal of 1 TAC §355.8381, Case Management Reimbursement Methodology, which appeared in the June 24, 2011, issue of the Texas Register (36 TexReg 3771).

Adopted Rules

The Board of Nursing adopted amendments to §217.6, Failure to Renew License, which are necessary to implement the requirements of SB1733, enacted by the 82nd Legislature, Regular Session, effective June 17, 2011, which simplifies to licensure process for military spouse applicants without compromising the safety of the public. An excerpt:

First, the Board has determined that military spouse applicants should not be required to pay the late fees and fines normally required for reactivating an expired or delinquent license. Because military spouses are often transferred from state to state with little notice, the Board has determined that the purpose of the late fees and fines, which is to encourage a licensee’s timely renewal, is not applicable in such situations. As such, the adopted amendments exempt military spouse applicants from paying these late fees and fines. However, only those military spouse applicants who submit a reactivation application to the Board in paper form will be exempt from paying these late fees and fines. This is because the Board’s online system is unable to process applications that are not accompanied by full payment of the late fees and fines normally required for the reactivation of an expired or delinquent license. Because the Board is unable to alter its online system at this time, the adopted amendments specifically require the reactivation application to be submitted in paper form in order for a military spouse applicant to receive this exemption.

• On DADS’ Behalf

Each change in the sections below authorizes DADS to deny or refuse to renew a license if an applicant or certain persons associated with an applicant are listed in a health and human service agency’s record of adverse licensing action maintained in accordance with Texas Government Code §531.952.

• Nursing Facility Requirements For Licensure And Medicaid Certification
• Intermediate Care Facilities For Persons With Mental Retardation Or Related Conditions
• Licensing Standards For Assisted Living Facilities
• Licensing Standards For Home And Community Support Services Agencies
• Adult Day Care And Day Activity And Health Services Requirements
• Denial Or Refusal Of License

Rule Review

The Texas Medical Board proposes to review Chapter 185, Physician Assistants, §§185.1 – 185.27, pursuant to the Texas Government Code, §2001.039.  Elsewhere in this issue. the Texas Medical Board contemporaneously proposes amendments to §185.4.

Community Care for the Aged and Disabled RC providers, CBA, AL/RC, and AFC:

CMS recently announced a 3.6 percent COLA increase in federal benefits. Because of late receipt of this news, HHSC will not implement the increase until February 1, 2012. (Letter)

NF, ICF, HCS, and TxHmL:

HHSC will delay the COLA increase in Retirement, Survivors and Disability Insurance, Supplemental Security Income, and Medicare Part A and B premium amounts to February 1, 2012. (Letter)

HCSSA w/ DADS contract:

DADS released the results of a joint streamlining project (with Access and Intake, Contract Oversight and Support, and Regulatory Services) conducted during fiscal year 2011. An excerpt:

We are pleased to report that DADS identified several opportunities to increase coordination or eliminate duplication and has changed policies and procedures accordingly. Those changes are as follows: Several items reviewed during Regulatory surveys will no longer be reviewed by contract managers, including:

• Several items reviewed during Regulatory surveys will no longer be reviewed by contract managers, including:

o verification that providers document, investigate and resolve complaints reported to the provider;

o verification that individuals are informed of their rights and how to file complaints;

o verification that providers are conducting criminal history checks on unlicensed attendants;

o evidence of provider compliance in delivering seldom-used therapies;

o evidence of supervisory visits; and

o verification that interdisciplinary team meetings were convened in required timeframes.

Hospice, ICF/ID, and NF:

DADS clarified how to apply CMS Survey and Certification letter provisions in the context of the DADS’s current incident reporting requirements. (Letter)

All ICF/ID:

DADS informed providers that some Board of Nursing rules are more specific to the practice of professional nursing in Texas and may be viewed as more restrictive than the ICF/ID federal regulations. Providers must comply with the more stringent rules. (Letter)

All ICF/ID:

DADS clarified the Board of Nursing’s position on an LVN providing on-call telephones services to individuals in the ICF/ID program:

The BON defines on-call telephone services as “providing telephone services anytime of the day to handle non-urgent, urgent and emergent conditions an individual may experience; and making a telephone assessment and providing instructions to an unlicensed person over the phone regarding that condition.” The BON has determined LVNs providing on-call services to individuals in the ICF/ID program to be out of the LVN’s scope of practice. (Letter)

CLASS CSAs, CLASS DSAs, and CDSAs:

Effective January 1, 2012, a CMA and DSA can bill for pre-enrollment assessment activities on the same day. (Letter)

ICF/MRs:

DADS issued this letter to guide providers on using video surveillance cameras to monitor common areas. An excerpt:

There is no state rule or federal requirement that specifically addresses the use of video surveillance cameras in ICFs/ID; however, 42 Code of Federal Regulations (CFR) §483.420(a) (W122), §483.420(a)(5) (W127), §483.420(a)(7) (W129 and W130) and §483.420(a)(9) (W133) require an ICF/ID to protect the privacy and rights of the individuals who reside in the facility. When an ICF/ID chooses to use video surveillance cameras to monitor common areas, it must:

1. Obtain approval before implementation from the facility’s specially constituted committee (SCC). 42 CFR §483.440(f)(3) (W262) requires the facility’s SCC (sometimes referred to by CMS as the Human Rights Committee or the Constituted Advisory Committee) to review and approve programs and practices that might involve risks to individual rights before implementation. This is intended to ensure individual’s rights are fully protected. Therefore, the facility’s video surveillance camera policies and procedures must be reviewed and approved by its SCC before cameras may be installed.

• Cost reporting information for CBA HCSS, CLASS CMA/DSA, and PHC

• Cost reporting information for HCS, ICF/MR, and TxHmL

• Cost reporting information for Adult Day Care, ALRC, CBACCAD, DBMD, NF, and RC

DAHS:

DADS clarified procedures for documenting information on Form 3682, DAHS Daily Transportation Record, and the activities DAHS facility may bill as part of transportation services. (Letter)

CDS for PHC, CAS, and FC:

DADS is adjusting the calculation of the Annual Service Plan for PHC, CAS and FC to be consistent with calculations made by the Service Authorization System. (Letter)

All Community Services 1915(c) Waiver providers:

An excerpt:

In accordance with Section 3309 of the Affordable Care Act, effective January 1, 2012, individuals receiving Medicaid 1915(c) waiver services and enrolled in a Medicare Part D prescription drug plan (PDP), will no longer be responsible for Medicare Part D prescription co-payments. This change will impact individuals enrolled in Community Based Alternatives (CBA), Community Living Assistance and Support Services (CLASS), Medically Dependent Children Program (MDCP), Deaf Blind with Multiple Disabilities (DBMD), Home and Community-based Services (HCS) and Texas Home Living (TxHmL).

If an individual, as described above, is asked to make a co-payment for a Part D prescription after December 31, 2011, the individual (or the individual’s guardian) should inform his or her prescription drug plan (PDP) that he or she is receiving waiver services. The individual should provide documentation to the PDP confirming enrollment in a waiver. The PDP must forward the documentation to the Centers for Medicare & Medicaid Services (CMS) for use in updating its systems.

This earlier letter appears to be a duplicate of the above.

Most LTC providers:

HIPAA rules mandate that all Electronic Data Interchange (EDI) transactions must use EDI Version 5010. CMS has extended the December 31, 2011, compliance deadline until April 1, 2012. (Letter)

ICF/MR:

DADS reminds providers of their responsibility to maintain current and accurate information in ICF/MR Provider Characteristics using Client Assignment and Registration Screen 683 and the instructions for entering information (Letter)

–  CBA and HCSSAs: DADS has revised the following forms (to be used by January 2, 2012) to remove requisition fees:

• Form 3671-D, Minor Home Modification, and Instructions have been updated
• Form 3672-E, Adaptive Aids and Medical Supplies, and Instructions have been updated
• Form 3671-H, Dental Services, and Instructions have been updated.

– DADS recently hosted a HSC billing guidelines webinar, but providers requested face-to-face training. In response, DADS will host several on-site training sessions. For training dates and registration (required), see the HSC training sessions page.

DADS will participate in the Electronic Document Submission Pilot, which entails transmitting documents between DADS case manages and providers/CDSAs. The program begins on December 19, 2011 and will continue for six months. (Letter)

–  DADS will implement a new service code in the CLASS program for DSA full and partial pre-enrollment assessment activities and eliminate service code 40A for DSA billing of partial pre-enrollment assessments, effective January 1, 2012.

–  HHSC has scheduled STAR, STAR+PLUS, children’s dental services, and pharmacy benefits provider training webinars for December 16 and 20. See this entry’s page for details.

–  The CBA and MDCP waivers are scheduled for CMS renewal on September 1, 2012. DADS will hold stakeholders meetings on January 3, 2012, during the following times: MDCP Waiver – 9:30 a.m. to noon.; CBA Waiver – 1-4 p.m. The meetings will be held at the John H. Winters Complex, 701 West 51st Street, Austin.

See the news alert page for more information.

Public Hearings and Notices

HHSC will hold a public hearing on December 1, 2011, at 9 a.m., to receive public comment on proposed payment rates for the AL/RC services under the CBA program, CBA Personal Care III services, and the Residential Care program, in the Lone Star Conference Room.

HHSC will hold a public hearing on November 21, 2011, at 9 a.m. receive comments on rates for Medicaid Biennial Calendar Fee Review – Therapy Services provided by home health agencies and nursing facilities. At  1 p.m., HHSC will hold a hearing to receive comments on proposed payment rates for the Medicaid Biennial Calendar Fee Review – Therapy Services provided by Independent Practitioners and Comprehensive Outpatient Rehabilitation Facilities/Outpatient Rehabilitation Facilities.

Both hearings will be held in the Winters Building, Public Hearing Room, 701 West 51st Street, Austin.

HHSC intends to submit to CMS a request to amend the CBA waiver program. The amendment would change requirements for nursing assessments from quarterly to semi-annually.

For more information on the hearings and the amendment notice, see the Texas Register.

Proposed Rules

• On DADS’ Behalf

HHSC proposes to amend §3.101, definitions; and new §3.401, training for new employees; §3.402, additional training for direct support professionals; §3.403, refresher training; and §3.404, specialized training for a forensic facility employee, in Chapter 3, Administrative Responsibilities of State Facilities. Among other things, the changes would describe additional training for direct support professionals in SSLCs and specify requirements for the annual refresher training for SSLC staff.

HHSC proposes to amend §4.121, staff training in rights, in Chapter 4, Rights and Protection of Individuals Receiving Mental Retardation Services, a change that would remove the SSLC training requirements from the Chapter 4 rules.

Finally, HHSC proposes the repeal of §5.363, staff training in use of restraints and §5.410, staff training in behavior therapy, in Chapter 5, Provider Clinical Responsibilities–Mental Retardation Facilities, a change that would delete training requirements for SSLC staff currently in Chapter 5.

For details, see the Texas Register.

Public Notice

DADS proposed to amend 40 TAC §92.2, Definitions, in the October 7, 2011, issue of the Texas Register and included outdated definitions for paragraph (8), “behavioral emergency” on page 6702, and paragraph (36), “personal care services” on page 6703, were erroneously included in the rule text of the proposal. Corrections:

(8) Behavioral emergency–Has the meaning given in §92.41(p)(2) of this chapter (relating to Standards for Type A and Type B Assisted Living Facilities).

(36) Personal care services–Assistance with feeding, dressing, moving, bathing, or other personal needs or maintenance; or general supervision or oversight of the physical and mental well-being of a person who needs assistance to maintain a private and independent residence in the facility or who needs assistance to manage his or her personal life, regardless of whether a guardian has been appointed for the person.

Proposed Rules

HHSC proposed to amend §354.1041, Benefits for Medicare/Medicaid Recipients; §354.1143, Coordination of Title XIX with Parts A and B of Title XVIII; and §354.1149, Exclusions and Limitations. The changes would limit payments for Medicare Part B services provided to dual eligibles to no more than the Medicaid payment amount for the same service, with the exception of renal dialysis services. See the Texas Register for more information.

• On DADS’ Behalf

HHSC proposed to repeal Subchapter I, §§1.401 – 1.405, 1.407, 1.409, and 1.411, In-Home and Family Support Mental Retardation Program, in Chapter 1, State Mental Retardation Authority Responsibilities, to remove rules related to the program.

HHSC also proposed to amend §2.315, MRA administrative functions, in Chapter 2, Mental Retardation Authority Responsibilities, which would remove the requirement that a MRA administer the In-Home and Family Support Program–Mental Retardation in its local service area. For more information about each proposed change, see the Texas Register.

Adopted Rules

HHSC adopted amendments to §360.117, cost sharing in the Medicaid Buy-In program, which exempts recipients who live in a federally declared disaster area from the requirement to pay premiums for up to three months, beginning with the month in which the disaster is declared. See the Texas Register for details.

• On DADS’ Behalf

HHSC adopted amendments to §§19.1001, 19.1002, 19.1510, and 19.1601, nursing services, additional nursing services staffing requirements, emergency medication kits and infection control in Chapter 19, Nursing Facility Requirements for Licensure and Medicaid Certification. Among other things, the changes make the code consistent with the federal requirements for posting nurse staffing information.

HHSC also adopted amendments to §30.16, election of hospice care, and §30.60, Medicaid hospice payments and limitations, in Chapter 30, Medicaid Hospice Program. The changes allow individuals under 21 enrolled in Medicaid or CHIP to elect hospice treatment services without waiving their rights to treatment for their terminal illnesses.

For more information, see the Texas Register.

Public Notices

HHSC intends to submit an amendment to the Texas State Plan for Medical Assistance, which would add categorical determinations to the Preadmission Screening and Resident Review (PASRR) program. HHSC intends to submit an amendment that would define the PASRR Level II evaluation and identify specialized services available only to PASRR-eligible individuals.

Finally, HHSC intends to submit to CMS a request to renew the TxHmL waiver program. For more information about each notice, see the Texas Register.

Proposed Rules

HHSC proposed to amend the following sections of the code:

• Nursing Facility Requirements For Licensure And Medicaid Certification
• Intermediate Care Facilities For Persons With Mental Retardation Or Related Conditions
• Licensing Standards For Assisted Living Facilities
• Licensing Standards For Home And Community Support Services Agencies
• Adult Day Care And Day Activity And Health Services Requirements
• Denial Or Refusal Of License

1.  A concise statement of the specific actions or determinations disputed;
2. A recommended resolution; and
3. Any supporting documentation relevant to the dispute.

Provider Letter 11-11 further states that if a provider is disputing a cost report adjustment, the provider must include a description of the cost report item they are disputing, what they believe the correct value of the item should be, why they believe this, and supporting documentation (such as payroll records, timesheets, canceled checks, etc.). If a provider is submitting a correction to a cost report, the provider must include a description of the cost report item they are correcting, what they believe the correct value of the item should be, why they believe this, and documentation that supports their corrected value (see above for examples).

Prior to September 1, 2011, if a provider submitted an informal review request that did not meet these requirements, HHSC would accept the request for review and request the additional information through a certified mailing, giving the interested party an additional 15 days to provide the information. Garlo Ward has prepared and submitted numerous informal review requests for clients over the years. We have always included a detailed description of the cost report line items disputed, with a thorough explanation of our recommended resolution per line item and attached all available and applicable supporting documents.

As noted above, as of September 1, 2011, requests for informal review that do not include the required information will be denied and not subject to further appeal. Meaning, providers will no longer get a second chance to make up for a deficient informal review request. Don’t let this happen to you! Garlo Ward can help you gather the information necessary and draft a request for informal review that meets the rule requirements.