PART 2. TEXAS ETHICS COMMISSION
CHAPTER 18. GENERAL RULES CONCERNING REPORTS
The Texas Ethics Commission (the Commission) adopts amendments to Texas Ethics Commission rules in Chapter 18. Specifically, the Commission adopts amendments to §18.23, regarding Administrative Waiver of Fine, and §18.24, regarding General Guidelines for Other Administrative Waiver or Reduction of Fine. The amendments are adopted without changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7511) and will not be republished.
Current rules concerning the administrative waiver process, which determine whether a filer is eligible for a waiver or reduction of a penalty for filing a report late, were created to afford a uniform and objective process by which all filers are adjudged against the same set of standards. The amendments make some improvements to this process. They address uncertainties that arise when the rules are applied. A definition for what a "prior offense" means under the administrative waiver process has been added, which will assist filers with determining when they will not be eligible for a waiver or reduction of a late-filing penalty. The amendments will allow the Executive Director to reconsider determinations if a filer files an appeal. These amendments will also allow commission staff to determine whether a filer is eligible for a waiver or reduction of a late-filing penalty more efficiently and expeditiously. Simplifying the rules will allow the public to understand more clearly the rules by which the Commission uses in determining if a late-filing penalty is eligible for a waiver or reduction.
No public comments were received on these amended rules.
The amendments are adopted under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code.
The amended rules affect Title 15 of the Election Code.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 10, 2020.
TRD-202005385
J.R. Johnson
General Counsel
Texas Ethics Commission
Effective date: January 1, 2021
Proposal publication date: October 23, 2020
For further information, please call: (512) 463-5800
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER B. ESTABLISHMENT AND ADJUSTMENT OF REIMBURSEMENT RATES FOR MEDICAID
The Texas Health and Human Services Commission (HHSC) adopts in Texas Administrative Code (TAC) Title 1, Part 15, Chapter 355, Subchapter B, new §355.205, concerning Rule for Emergency Temporary Reimbursement Rate Increases and Limitations on Use of Emergency Temporary Funds for Medicaid in Response to Novel Coronavirus (COVID-19). Section 355.205 is adopted without changes to the proposed text as published in the October 23, 2020, issue of the Texas Register (45 TexReg 7513). Therefore, the rule will not be republished.
BACKGROUND AND JUSTIFICATION
The new rule outlines the process by which HHSC will restrict eligible Medicaid providers from using temporarily increased reimbursement rates to increase hourly wages paid to direct care staff on an ongoing basis. In accordance with the contingencies placed upon use of the funds, use of the funds for staff compensation is limited to overtime payments, lump sum bonuses, bonuses for hazard pay, or other types of compensation that will not result in future reductions to hourly wages when the emergency temporary reimbursement rate increase is discontinued. Reimbursement rates were increased effective April 1, 2020, to ensure that these providers are able to purchase personal protective equipment, ensure adequate staff-to-client ratios, and take other necessary steps to serve clients individually rather than in congregate settings to protect the health and safety of the clients in their care.
This new rule is based on an existing emergency rule adopted in response to the COVID-19 pandemic: §355.205, Emergency Rule for Emergency Temporary Reimbursement Rate Increases and Limitations on Use of Emergency Temporary Funds for Medicaid in Response to Novel Coronavirus (COVID-19). The provisions of this new rule are the same as the emergency rule. Except for a minor edit in the title of the rule and a clarifying edit in the text, there are no changes.
COMMENTS
The 31-day comment period ended November 23, 2020.
During this period, HHSC did not receive any comments regarding the proposed rule.
STATUTORY AUTHORITY
The new rule is authorized by Texas Government Code §531.0055, which authorizes the Executive Commissioner of HHSC to adopt rules and policies necessary for the operation and provision of health and human services by the health and human services system; Texas Government Code §531.033, which allows the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; 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; and 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 medical assistance payments under the Texas Human Resources Code Chapter 32.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 10, 2020.
TRD-202005381
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: December 31, 2020
Proposal publication date: October 23, 2020
For further information, please call: (512) 730-7401
DIVISION 11. TEXAS HEALTHCARE TRANSFORMATION AND QUALITY IMPROVEMENT PROGRAM REIMBURSEMENT
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.8201, concerning Waiver Payments to Hospitals for Uncompensated Care. The amendment to §355.8201 is adopted without changes to the proposed text as published in the November 6, 2020, issue of the Texas Register (45 TexReg 7812). The rule will not be republished.
BACKGROUND AND JUSTIFICATION
The purpose of the rule amendment is to revise the secondary reconciliation process applied to hospitals that requested an adjustment to their interim hospital-specific limit (HSL) for purposes of calculating uncompensated care (UC) payments in demonstration years 6 through 8 (October 1, 2016 to September 30, 2019), and to describe the methodology HHSC will use to redistribute recouped funds. The amendment to the secondary reconciliation process is in response to a petition for rulemaking.
Secondary Reconciliation
As part of the UC application process, a hospital can submit a request for an adjustment to cost and payment data to reflect increases or decreases in costs resulting from changes in operation or circumstance. If a hospital requested an adjustment on its UC application that impacted its interim HSL (now referred to as the state payment cap), it would be subject to an additional reconciliation. The purpose of this secondary reconciliation is to ensure that a hospital that inaccurately adjusts its interim HSL does not benefit from that inaccuracy.
Under the current secondary reconciliation process, HHSC compares a hospital's adjusted interim HSL for the demonstration year to its final HSL for the demonstration year. If the final HSL is less than the adjusted interim HSL, the hospital's UC payment is recalculated for the demonstration year using the final HSL instead of the adjusted interim HSL, with no other changes being made to the data used in the original calculation of the hospital's UC payment. HHSC then recoups any payment received by the hospital that is greater than the recalculated payment.
The interim HSL is defined by HHSC and is calculated in the payment year for hospitals that participate in the Disproportionate Share Hospital (DSH) and UC programs. The final HSL is governed by federal law and is calculated two years after the payment year using actual program year data. HHSC's understanding of the federal regulation governing the final HSL has changed since HHSC calculated the adjusted interim HSL for UC payments in demonstration years 6 through 8 and will require a different methodology to be used to calculate the final HSL for those years.
As a result, there is a risk that a hospital that submitted a request on its UC application to adjust its interim HSL in demonstration years 6 through 8 could have a final HSL that is less than its adjusted interim HSL due only to the change in HSL methodology. Under the current secondary reconciliation provision, HHSC would recoup any payment received by the hospital that is greater than the recalculated UC payment.
Section 355.8201(i)(3) is amended to revise the secondary reconciliation process applied to hospitals that adjusted their interim HSL in demonstration years 6 through 8. This change is in response to a petition for rulemaking from Texas Children's Hospital and is intended to prevent recoupments from hospitals that are solely the result of the change in the federal regulation related to the final HSL calculation. For demonstration years 6 through 8, HHSC will compare a hospital's adjusted interim HSL for the demonstration year to a proxy-final HSL for the demonstration year. The proxy-final HSL will be calculated using the methodology described in §355.8066(c)(2) for the demonstration year, except that it will not offset third-party and Medicare payments for claims and encounters where Medicaid was a secondary payer. If the proxy-final HSL is less than the adjusted interim HSL, HHSC will recalculate the hospital's UC payment for the demonstration year using the proxy-final HSL.
The amendment also makes other clarifying changes to indicate which demonstration years are subject to the secondary reconciliation process.
Redistribution of Recouped Funds
Under the terms of the Texas Healthcare Transformation and Quality Improvement Program 1115 Medicaid demonstration waiver, HHSC may redistribute recouped funds identified in the reconciliation process to eligible providers if there is available UC funding for the demonstration year. Section 355.8201(k) is amended to describe the methodology HHSC will use to redistribute recouped funds to providers eligible for additional payments. A provider is eligible for an additional payment if it has allowable uncompensated costs that were not reimbursed through its initial UC payment for the demonstration year.
Recouped funds from state providers will be redistributed proportionately to eligible state providers based on the percentage that each eligible state provider's remaining final uncompensated cost of care (UCC) calculated in the reconciliation described in §355.8201(i) is of the total remaining final UCC of all eligible state providers.
Recouped funds from non-state providers will be redistributed proportionately to eligible non-state providers, except for in demonstration years 7 and 8 (October 1, 2017 to September 30, 2019). First, HHSC will return the non-federal share portion of the recouped funds to the governmental entity that provided it during the program year for the eligible providers. Then, the federal share portion of the recouped funds will be redistributed proportionately among all eligible providers that have a source of the non-federal share for the additional payment. If a payment does not have a source of the non-federal share, then the federal share will be returned to the Centers for Medicare & Medicaid Services (CMS).
For demonstration years 7 and 8, recouped funds from non-state providers will be redistributed to eligible non-state providers using a weighted allocation methodology. First, HHSC will calculate a weight that will be applied to all non-state providers. The weight is calculated based on the provider's final remaining UCC with and without the offset of payments for third-party and Medicare claims and encounters where Medicaid was a secondary payer to determine how significantly the provider's UCC was impacted by not offsetting these payments. Providers who did not have a significant change in their UCC will receive a larger weight.
After calculating the weighting factor, HHSC will make a first pass allocation by multiplying the weight by the provider's final remaining UCC with the offset of payments for third-party and Medicare claims and encounters where Medicaid was a secondary payer. HHSC will divide the product by the total remaining UCCs for all non-state providers and multiply the quotient by the total amount of recouped dollars available for redistribution. HHSC will limit a provider's payment to the amount of the provider's final remaining UCC. If a provider is allocated a payment amount that is higher than its remaining UCC, HHSC will make a second pass allocation to redistribute the excess funds using the remaining UCC for all non-state providers without applying the weight.
COMMENTS
The 31-day comment period ended December 7, 2020.
During this period, HHSC received comments regarding the proposed rule from three commenters: Community Health Systems, Teaching Hospitals of Texas, and Texas Children's Hospital. A summary of comments relating to the rule and HHSC's responses follows.
Comment: All three commenters support the proposed amendment to the secondary reconciliation provision.
Response: HHSC appreciates the support. No changes were made in response to this comment.
Comment: One commenter expressed support for the proposed methodology HHSC will use to redistribute recouped UC funds.
Response: HHSC appreciates the support. No changes were made in response to this comment.
STATUTORY AUTHORITY
The amendment is adopted under Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out HHSC's duties; 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; and 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 medical assistance payments under the Texas Human Resources Code Chapter 32.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 10, 2020.
TRD-202005380
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: December 31, 2020
Proposal publication date: November 6, 2020
For further information, please call: (512) 695-4122