TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 355. REIMBURSEMENT RATES

SUBCHAPTER I. REPORTING

1 TAC §355.7201

The Texas Health and Human Services Commission (HHSC) adopts §355.7201, concerning Novel Coronavirus (COVID-19) Fund Reporting. Section 355.7201 is adopted with changes to the proposed text as published in the August 13, 2021, issue of the Texas Register (46 TexReg 4928). This rule will be republished.

BACKGROUND AND JUSTIFICATION

This rule is necessary to comply with the 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 143), and S.B. 809, 87th Legislature, Regular Session, 2021.

The rule outlines definitions, reporting requirements, guidelines, and procedures for health care institutions, as defined by Civil Practice and Remedies Code §74.001, including certain hospitals and nursing facilities, to report received federal COVID-19 funding. The COVID funding includes federal money received under the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C. §9001 et seq.), the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260), and the American Rescue Plan Act of 2021 (Pub. L. No. 117-2).

The rule outlines penalties for providers who fail to submit the required reports, in alignment with the provisions of S.B. 809 and Rider 143.

HHSC will compile and analyze the data and submit required legislative reports. S.B. 809 requires quarterly reports, and Rider 143 requires HHSC to submit reports on December 1st and June 1st of each fiscal year. Appropriations in Strategy A.2.4, Nursing Facility Payments, for fiscal year 2023 are contingent on the submission of the reports due December 1, 2021, and June 1, 2022.

The required reporting for both the providers and HHSC is anticipated to terminate by September 1, 2023.

COMMENTS

The 21-day comment period ended September 3, 2021.

During this period, HHSC received comments regarding the proposed rule from seven commenters, including Christus Healthcare; the Independent Coalition of Nursing Home Providers; LeadingAge Texas; Texas Assisted Living Association; Teaching Hospitals of Texas; Texas Healthcare Association; and the Texas Hospital Association. A summary of comments relating to the rule and HHSC's responses follows.

Comment: Commenters requested an extension beyond the current deadline of October 1, 2021, for the first report due to another COVID-19 surge currently occurring in Texas.

Response: Providers may request an extension pursuant to subsections (e)(2) and (e)(3). HHSC may grant extensions of up to 15 days, as needed on a case-by-case basis if the extension is requested prior to the due date. No changes were made to the rule as a result of this comment.

Comment: Commenters requested that the initial due date for the first report should be moved to November 1, 2021, because it covers 19 months and will take more time to compile. Commenters also noted that the rule will not be adopted prior to the October 1, 2021, effective date, after which non-compliant providers will be penalized.

Response: HHSC appreciates the input and encourages providers to request extensions prior to the due date if needed. Additionally, in alignment with the U.S. Department of HHS on their COVID-19 Provider Funding reporting, HHSC will offer a grace period up to November 30, 2021, for providers submit the required reports. HHSC has amended the rule to add subsection (g)(5) to clarify this.

Comment: Commenters requested that the state change from monthly to quarterly reporting to align with the federal COVID reporting requirements as monthly is overly burdensome and unnecessary.

Response: S.B. 809 requires that providers submit reports monthly. No changes were made to the rule as a result of this comment.

Comment: Commenters requested HHSC to minimize duplication of federal reporting requirements where possible. They recommended that as an alternative, HHSC use the federal reports for COVID-19 related funds published here: https://taggs.hhs.gov/Coronavirus/Providers.

Response: HHSC appreciates that the federal information is displayed by state and by provider. The lump sum total amount of funds received does not provide enough detail to generate the report as required by S.B. 809 and Rider 143 of the 87th legislative session. Rider 143 requires, "The first submission of the report shall also include a description of any requirements implemented for nursing facilities in response to the COVID-19 pandemic, the cost to nursing facilities to implement the requirements, and recommendations on whether or not the requirements should be continued after the end of the public health emergency." In addition, S.B. 809 requires that HHSC exclude federal money "received as a loan during the coronavirus disease a public health emergency from the United States Small Business Administration as part of a paycheck protection program." In order to acquire this information, HHSC must request additional detail beyond what is available in the federal look-up tool. Therefore, no changes were made to the rule as a result of this comment. However, HHSC will continue to monitor and examine available federal data to see if required questions can be reduced in the future.

Comment: Commenter stated that S.B. 809 requires reporting on "money received" from federal sources for assistance during the public health emergency but does not require providers to report on costs, uses, or any other information. Rider 143 directs HHSC to develop a report on "total value and uses" of COVID-19 funds by hospitals and nursing facilities and the "cost to nursing facilities" to implement certain requirements but does not allow for the collection of cost data or any other information HHSC deems necessary.

Response: HHSC combined the reporting requirements for S.B. 809 and Rider 143 as they are very similar. The report requests additional information only for nursing facilities, hospitals, and hospital systems. No changes were made to the rule as a result of this comment.

Comment: Commenters noted that the rule did not include detail for providers on how to report. A commenter stressed that HHSC should begin communicating with providers about the reporting requirement as soon as possible. Additional detail was requested to ensure providers have guidance on specifics of format and source specifics to allow providers to report to HHSC.

Response: HHSC sent an initial GovDelivery notification to providers and stakeholders that are subscribed to the applicable topics with details regarding the reporting on September 1, 2021. HHSC sent an additional GovDelivery notification on September 10, 2021, informing providers and stakeholders on the availability of the reporting portal. Additional details and a PDF copy of the report are available on the HHSC Provider Finance Website at https://pfd.hhs.texas.gov/provider-finance-communications. The specific report questions are not included in the rule in order to allow for changes if necessary. No changes were made to the rule as a result of this comment.

Comment: Commenters requested that HHSC be available for additional discussions to allow providers to explain their obligations and challenges to provide care during the pandemic to avoid unnecessary financial reporting burdens on short timelines.

Response: HHSC is available to meet with stakeholders on request when questions arise with either this reporting requirement or other initiatives. No changes were made to the rule as a result of this comment.

Comment: A commenter raised the question of whether Rider 143 makes appropriations for Strategy A.2.4 contingent on HHSC submitting reports timely or the providers submitting reports timely.

Response: Appropriations in Strategy A.2.4 are contingent on HHSC's timely submission of the reports. HHSC will be unable to submit the reports timely and secure Strategy A.2.4 appropriations if nursing facilities fail to submit the required reports. No changes were made to the rule as a result of this comment.

Comment: Commenters recommended that the last sentence of §355.7201(f)(4) be removed as there is no legal authority in their opinion in either S.B. 809 or Rider 143 that supports withholding appropriations from providers due to insufficient reporting.

Response: There is no §355.7201(f)(4), HHSC assumes the reference was to §355.7201(g)(4). Appropriations in Strategy A.2.4 are contingent on HHSC's timely submission of the reports. HHSC will be unable to submit the reports timely and secure Strategy A.2.4 appropriations if nursing facilities fail to submit the required reports. No changes were made to the rule as a result of this comment.

Comment: Commenters noted that the rule is not clear whether hospital reporting and nursing facility reporting are linked. The terms of "providers" and "facilities" in §355.7201(g) could be interpreted to encompass hospitals or other healthcare institutions. They recommended adding specificity to §355.7201(g) to denote nursing facilities and replace "provider" with "health care institution" in §355.7201(g)(2) - (3) and replace "provider" in §355.7201(g)(4) with "nursing facilities."

Response: HHSC has revised the language in §355.7201(g)(1) - (4) to ensure it is clear which subsection is applicable to which type of health care institution.

Comment: A commenter recommended that HHSC create a technical workgroup to develop reporting to meet the legislative intent and HHSC's needs.

Response: In order to meet the legislatively established reporting deadlines, HHSC was unable to convene a workgroup to create the S.B. 809 and Rider 143 report. However, HHSC will consider this for future reports, subject to legislatively mandated deadlines. No changes were made to the rule as a result of this comment.

HHSC made a few minor edits to correct spelling in subsection (a), add a hypen to "end stage" in subsection (c)(11), and expanded the abbreviation of "PHE" to "Public Health Emergency" in subsection (f).

STATUTORY AUTHORITY

The new section 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; 2022-23 General Appropriations Act, S.B. 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC, Rider 143); and Texas Health and Safety Code Chapter 81A, which requires HHSC to establish procedures for health care institutions to report required information.

§355.7201.Novel Coronavirus (COVID-19) Fund Reporting.

(a) Introduction. The Texas Health and Human Services Commission (HHSC) collects monthly reports from health care institutions to compile legislatively-mandated reports. This section outlines the reporting requirements related to novel coronavirus (COVID-19) federal fund reporting. This section also describes the circumstances in which penalties and recoupments will be necessary for certain provider types for failure to submit required monthly reports.

(b) Definitions. Unless the context clearly indicates otherwise, the following words and terms when used in this section are defined as follows.

(1) Health care institution--As defined by Civil Practice and Remedies Code §74.001.

(2) HHSC--The Texas Health and Human Services Commission, or its designee.

(c) Institutions required to complete monthly reports. Health care institutions that are required to submit monthly reports include:

(1) an ambulatory surgical center;

(2) an assisted living facility licensed under Texas Health and Safety Code Chapter 247;

(3) an emergency medical services provider;

(4) a health services district created under Texas Health and Safety Code Chapter 287;

(5) a home and community support services agency;

(6) a hospice;

(7) a hospital;

(8) a hospital system;

(9) an intermediate care facility for the mentally retarded or a home and community-based services waiver program for persons with mental retardation adopted in accordance with the Social Security Act §1915(c) (42 U.S.C. §1396n), as amended;

(10) a nursing home; and

(11) an end-stage renal disease facility licensed under Texas Health and Safety Code §251.011.

(d) Reporting requirements. A health care institution is required to report on moneys received under the Coronavirus Aid, Relief, and Economic Security Act (15 U.S.C. §9001 et seq.), the Consolidated Appropriations Act, 2021 (Pub. L. No. 116-260), and the American Rescue Plan Act of 2021 (Pub. L. No. 117-2). HHSC may also request additional information related to direct or indirect costs associated with COVID that have impacted the provider's business operation and any other information HHSC deems necessary to appropriately contextualize the moneys received as described in this subsection. HHSC will collect information and the requested data may vary by provider type based on legislative direction.

(e) Frequency of reporting.

(1) Submission of data will be required on a monthly basis.

(2) Initial reporting will begin on September 1, 2021, and is due by October 1, 2021. The initial reporting period will be for January 31, 2020, through August 31, 2021. HHSC may choose to grant the provider an extension of up to 15 calendar days if the provider notifies HHSC that additional time is required to submit the initial report prior to the due date.

(3) Subsequent monthly reports will be due by the first day of each month and will cover the time-period two months prior. For example, the report due November 1, 2021, will cover September 1, 2021 through September 30, 2021. HHSC may grant the provider an extension of no more than 15 calendar days if the provider notifies HHSC that more time is needed prior to the due date.

(f) HHSC legislatively-mandated reports. HHSC will compile reports based on submitted data and submit the reports on a quarterly basis to the Governor, Legislative Budget Board, and any appropriate standing committee in the Legislature. Quarterly reports will be submitted beginning December 1, 2021, and continue March 1, June 1, and September 1 thereafter. Upon conclusion of the Public Health Emergency, the submission frequency may be reduced to semi-annually on December 1 and June 1 of each fiscal year.

(g) Penalties for failure to report. Specified providers are required to report information as requested on a monthly basis to HHSC.

(1) A hospital, hospital system, or nursing facility that does not report the requested information will be identified by name, including a unique identifying number, such as National Provider Identification number, in HHSC's legislatively-mandated reports.

(2) Failure to report 2 or more times in a 12-month period will result in notification to the appropriate licensing authority who may take disciplinary action against a health care institution that violates this chapter as if the institution violated an applicable licensing law.

(3) Failure to report will result in the issuance of a vendor hold on future payments to the identified provider after 30 days following the due date of the required report. The vendor hold will be released after the health care institution has submitted all delinquent reports to HHSC.

(4) Appropriations in 2022-23 General Appropriations Act, Senate Bill (S.B.) 1, 87th Legislature, Regular Session, 2021 (Article II, HHSC) Strategy A.2.4, Nursing Facility Payments, for fiscal year 2023 are contingent on the submission of the reports due December 1, 2021, and June 1, 2022. If HHSC is unable to utilize appropriations for nursing facilities from Strategy A.2.4 as a result of insufficient reporting from nursing facilities, HHSC will suspend all payments to nursing facilities until such a time as HHSC is authorized to continue making expenditures under Strategy A.2.4.

(5) HHSC will offer a grace period until November 30, 2021, for a provider to submit the required reports. While the deadlines to report will not change, during that period HHSC will not take an action described in paragraphs (2) or (3) of this subsection as long as the provider has submitted all reports required under this section no later than December 1, 2021. A provider's failure to submit a report during that period will not be considered in a subsequent reporting period as long as the provider has completed all reports required under this section no later than December 1, 2021.

(h) Duration. This reporting requirement ends on August 31, 2023 or as specified by HHSC.

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 October 19, 2021.

TRD-202104207

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: November 8, 2021

Proposal publication date: August 13, 2021

For further information, please call: (512) 438-2680