TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 261. INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH AN INTELLECTUAL DISABILITY OR RELATED CONDITIONS (ICF/IID) PROGRAM--CONTRACTING

SUBCHAPTER C. PROVIDER ADMINISTRATIVE REQUIREMENTS

26 TAC §261.220

The Texas Health and Human Services Commission (HHSC) adopts new §261.220, concerning Medicaid Bed Reallocation, in Title 26, Texas Administrative Code (TAC), Chapter 261, Intermediate Care Facilities for Individuals with an Intellectual Disability or Related Conditions (ICF/IID) Program Contracting.

Section 261.220 is adopted with changes to the proposed text as published in the July 23, 2021, issue of the Texas Register (46 TexReg 4436). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The new section is necessary to implement House Bill (H.B.) 3117, 86th Legislature, Regular Session, 2019, which amended Texas Health and Safety Code §533A.062(b-1) and requires HHSC to develop a process to reallocate community ICF/IID beds.

The new section explains how a person applies for and HHSC reallocates beds that revert to the control of HHSC due to facility closure, with or without a period of suspension under 26 TAC §261.218. The adopted rule allows a person to request up to six beds per facility.

COMMENTS

The 31-day comment period ended August 23, 2021. During this period, HHSC received comments regarding the proposed rule from Caregiver, an ICF/IID provider. A summary of the comments and HHSC's responses follow.

Comment: The commenter stated that medium and large ICF/IID facilities should have the first opportunity to apply for reallocated beds to address the issue of cost neutrality when seeking to downsize.

Response: HHSC disagrees with the comment and declines to revise the rule. "Downsizing" refers to redistributing a program provider's capacity from a medium or large facility and using the capacity for small facilities. Redistribution addressed in 26 TAC §261.214(d) is different from reallocation, which is addressed in new §261.220. Redistribution is based on a request and plan from a program provider. The request and plan must be approved by HHSC and HHSC may require the redistribution to be cost neutral. The rates paid to small and medium facilities are higher than those paid to large facilities, so if HHSC requires cost neutrality there will be a reduction in the capacity of the ICF/IID program and those forfeited beds are not available to be reallocated. If a program provider wants to apply for reallocated beds in accordance with new §261.220 and incorporate those beds into a plan to redistribute capacity, that is not prohibited. However, the requests to redistribute capacity and the requests for reallocated beds are independent and HHSC declines to give a program provider that wants to use reallocated beds as part of a redistribution plan preference over other persons who apply for reallocated beds.

Comment: The commenter requested that the limit of six reallocated beds per facility be waived for medium and large ICF/IID facilities seeking to downsize or voluntarily close.

Response: HHSC disagrees with the comment and declines to revise the rule. If a program provider requests to redistribute capacity from a medium or large facility, HHSC will approve a redistribution plan only if the new or downsized facilities resulting from the plan do not exceed a capacity of six. A program provider may submit more than one request for reallocated beds and, as stated in response to the previous comment, a program provider may request reallocated beds in addition to a plan to redistribute capacity. However, resulting facilities may not exceed a capacity of six.

Comment: The commenter requested that program providers that want to redistribute capacity from medium and large facilities be exempt from having to provide documentation of demonstrated need for reallocated beds.

Response: HHSC disagrees with the comment and declines to revise the rule. The demonstration of need is a critical part of the reallocation process. HHSC wants the beds to be used in an area where there is a need for them. Medium and large providers that request to redistribute the capacity of their facilities and also want to use reallocated beds should be able to demonstrate a need for the beds in accordance with the rule.

HHSC made revisions on adoption that were not in response to public comment. HHSC revised subsection (b) to clarify that 26 TAC §551.14, which requires HHSC approval to increase licensed capacity, applies to licensed facilities. The certified capacity of a facility, governed by 26 TAC §261.214, states that HHSC determines the certified capacity of a facility. In rule, there is a process for a program provider to request that the certified capacity of a facility be decreased and redistributed, but not increased.

HHSC added new §261.220(c) to provide a definition of "applicant" for new §261.220 because the meaning of the term in the new section is different from the definition in §261.203(5), which applies to Chapter 261 generally. Section 261.220(c) clarifies that an applicant for reallocated beds may be a person who is not a program provider, a program provider operating a licensed facility, or a program provider operating a facility that is exempt from licensure in accordance with Texas Health and Safety Code §252.003. The remaining subsections have been renumbered.

HHSC revised new §261.220(e) to delete the reference to a current or new provider. That reference is not necessary with the definition of "applicant" provided in §261.220(c). HHSC revised §261.220(e)(1) to clarify that a request for reallocated beds may not exceed six beds per facility.

HHSC revised new §261.220(l), (m), and (n) so the rule does not characterize the application in the Texas Unified Licensure Information Portal (TULIP) as a "licensure" application because it serves as an application for both an ICF/IID license and certification. Some program providers are exempt from ICF/IID licensure and would use the application to obtain certification only. In addition, HHSC revised the rule to specify an "initial" application because that is the type of license that must be submitted through TULIP.

STATUTORY AUTHORITY

The new section is adopted under 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 Health and Safety Code §252.008 and §252.036, which, respectively, require the Executive Commissioner of HHSC to adopt rules related to the administration and implementation of Chapter 252 and to adopt minimum standards relating to facilities licensed under Chapter 252.

§261.220.Medicaid Bed Reallocation.

(a) Based on Texas Health and Safety Code §533A.062(b-1) (relating to Plan on Long-Term Care for Persons with an Intellectual Disability), and as authorized by the Long-Term Care Plan for Individuals with Intellectual Disabilities and Related Conditions, the Texas Health and Human Services Commission (HHSC) must:

(1) review the state-wide bed capacity of community intermediate care facilities for individuals with an intellectual disability or related conditions (ICF/IID); and

(2) develop a process to reallocate beds held in suspension by HHSC.

(b) As provided in §551.14 of this title (relating to Increase in Capacity), a facility may not increase its capacity without approval from HHSC.

(c) For purposes of this section only, "applicant" means a person who requests reallocated Medicaid beds in accordance with this section. An applicant may be a person:

(1) who is not a program provider;

(2) who is a program provider operating a licensed facility; or

(3) who is a program provider operating a facility that is exempt from licensure in accordance with Texas Health and Safety Code §252.003 (relating to Exemptions).

(d) Notwithstanding §261.206 of this chapter (relating to Application Process), the following provisions establish the process for HHSC Long-term Care Regulation to reallocate ICF/IID Medicaid beds.

(e) If an applicant wants to request reallocated Medicaid beds, the applicant:

(1) can request no more than six reallocated beds for each facility;

(2) interested in obtaining reallocated beds must:

(A) complete form HHSC 3642, ICF/IID Medicaid Bed Reallocation Application; and

(B) email the application and all supporting documentation to: Medicaid_Bed_Allocation@hhs.texas.gov.

(f) For the reallocation, HHSC calculates the number of available beds based on the numbers of surrendered or expired beds made available during the relevant state fiscal years.

(g) When HHSC receives a complete application for reallocation, HHSC:

(1) processes the application in the order received;

(2) reviews the application to determine if the applicant meets the criteria for reallocation;

(3) determines if ICF/IID beds are available for reallocation;

(4) verifies the applicant is immediately ready to use the beds;

(5) determines if the applicant demonstrates a need for the beds as described in subsection (g) of this section; and

(6) if the applicant is a current program provider, determines whether the applicant has an acceptable regulatory compliance history with HHSC.

(h) The applicant must provide documentation that demonstrates the need for the requested reallocated beds by providing:

(1) data demonstrating occupancy rates of 80 percent or greater for nine of the 12 months preceding the application if the applicant is a current program provider;

(2) documentation of a wait list, such as letters from individuals or family members attesting that they want to receive services from the applicant; or

(3) any other documentation showing a need for a new ICF/IID.

(i) HHSC considers the regulatory compliance history for any facility operated by the applicant. An acceptable regulatory compliance history means that, in the preceding 24 months, the applicant and controlling persons have not received any of the following sanctions:

(1) termination of Medicaid or Medicare certification;

(2) termination of Medicaid contract;

(3) denial, suspension or revocation of a provider license;

(4) cumulative Medicaid or Medicare civil monetary penalties totaling more than $5,000 in a single facility;

(5) imposition of civil penalties pursuant to Texas Health and Safety Code §252.064;

(6) denial of payment for new admissions;

(7) a pattern of substantial or repeated licensing or Medicaid sanctions, including administrative penalties; or

(8) a condition listed in §551.17 of this title (relating to Criteria for Denying a License or Renewal of a License).

(j) An applicant having no compliance history to consider must meet all other criteria for reallocation.

(k) If an applicant meets all criteria for reallocation and ICF/IID beds are available, HHSC approves the application, grants the number of beds requested, up to a maximum of six beds, and sends an approval letter to the applicant.

(l) On approval of the reallocation, the applicant must submit an initial application in the Texas Unified Licensure Information Portal within 30 days from the date of the approval letter. The applicant must also complete the provider enrollment and Medicaid contracting process as referenced in §261.206 of this chapter and §261.208 of this chapter (relating to Provider Agreement).

(m) If the applicant fails to complete and submit the initial application, the reallocation application is cancelled, and HHSC will reallocate the beds to another approved applicant or hold the beds until another provider is approved.

(n) If HHSC denies the initial application or the applicant does not complete the provider enrollment or Medicaid contracting process, HHSC reallocates the beds to another approved applicant or holds the beds until approval of another applicant.

(o) If HHSC revokes the reallocation of beds, HHSC notifies the person to whom the beds were allocated. The person may not appeal the revocation of capacity.

(p) Once HHSC reallocates all available beds, HHSC will place any approved applicants who did not receive reallocated beds on a waiting list. As additional beds become available for reallocation, HHSC will contact approved applicants on the wait list.

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-202104209

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: November 8, 2021

Proposal publication date: July 23, 2021

For further information, please call: (512) 438-3161


CHAPTER 306. BEHAVIORAL HEALTH DELIVERY SYSTEM

SUBCHAPTER X. DISASTER RULE FLEXIBILITIES FOR BEHAVIORAL HEALTH PROVIDERS

26 TAC §306.1251

The Texas Health and Human Services Commission (HHSC) adopts new §306.1251, concerning Disaster Flexibilities. Section 306.1251 is adopted with changes to the proposed text as published in the July 30, 2021, issue of the Texas Register (46 TexReg 4542). This rule will be republished.

BACKGROUND AND JUSTIFICATION

HHSC adopts rules to establish requirements and flexibilities to protect public health and safety during a disaster declared by the Governor. The requirements established in these rules are effective in all Texas counties or in a particular Texas county or counties during an active state of disaster as declared pursuant to Texas Government Code §418.014. The new section allows HHSC the flexibility to waive certain requirements for the delivery of services in response to a declared disaster. The new section is based on the existing emergency rule adopted in Texas Administrative Code Title 26, Part 1, Chapter 306, Subchapter Z, §306.1351, relating to COVID-19 Flexibilities. Adoption of new §306.1251 is necessary to allow providers subject to the rule to operate with the same flexibilities afforded by the emergency rule, and it ensures continuity of services for individuals receiving community-based behavioral health services.

COMMENTS

The 31-day comment period ended August 30, 2021.

During this period, HHSC received comments regarding the proposed rule from one commenter, the Texas Medical Association. A summary of comments relating to the rule and HHSC's responses follows.

Comment: The commenter recommended adding a new subsection to clarify the meaning of the terms telehealth and telemedicine and recommended the terms having the same meaning as §111.001(3) and (4) of the Texas Occupations Code respectively.

Response: HHSC agrees and added the terms as recommended under §306.1251(b) to include a cross reference to §111.001 of the Texas Occupations Code (relating to Definitions). HHSC renumbered subsections §306.1251(b), (c), and (d) as new subsections (c), (d), and (e), respectively.

Comment: The commenter recommended clarifying the situations in which the flexibilities are available in proposed §306.1251(b).

Response: HHSC agrees and revised new §306.1251(c) as recommended.

Comment: The commenter recommended modifying proposed §306.1251(b)(1) and (b)(1)(A) to clarify that a provider's ability to use the alternative interaction methods is limited by the provider's scope of licensure or other legal authorization.

Response: HHSC agrees and revised new §306.1251(c)(1) and (c)(1)(A) as recommended.

Comment: The commenter recommended clarifying the flexibilities available for certain in-person staff training or staff training in a specific location as to what flexibilities extends to the rules listed in proposed §306.1251(b)(3), §306.1251(b)(3)(A), and §306.1251(b)(3)(B).

Response: HHSC agrees and revised new §306.1251(c)(1)(B) and §306.1251(c)(3).

HHSC made minor editorial changes to the section which include, punctuation, updating cross references in §306.1251(a), §306.1251(d), and §306.1251(d)(2), and revising language in §306.1251(c)(4) for clarity.

STATUTORY AUTHORITY

The new section is adopted under Texas Government Code §§531.0055, 533.014, 533.035, 533.0356, 534.052, 534.058, 572.0025, 571.006, and 577.010. §531.0055 provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Health and Safety Code §533.014 requires the Executive Commissioner of HHSC to adopt rules regarding certain responsibilities for LMHAs; §533.035 authorizes HHSC to contract with LMHAs for the delivery of mental health services; §533.0356 allows the Executive Commissioner of HHSC to adopt rules governing Local Behavioral Health Authorities (LBHAs); §534.052 authorizes the Executive Commissioner of HHSC to adopt rules to ensure the adequate provision of community-based mental health services; §534.058 authorizes the Executive Commissioner to develop standards of care for services provided by LMHAs and their subcontractor; §572.0025 authorizes the Executive Commissioner of HHSC to adopt rules governing the voluntary admission of a patient to an inpatient mental health facility; §571.006 authorizes the Executive Commissioner to adopt rules to ensure the proper and efficient treatment of persons with mental illness; and §577.010 authorizes the Executive Commissioner to adopt rules to ensure the proper care and treatment of patients in a private mental hospital or mental health facility.

§306.1251.Disaster Flexibilities.

(a) In the event of a state of disaster declared pursuant to Texas Government Code §418.014 for statewide disasters or limited areas subject to the declaration, the flexibilities listed under subsection (c) of this section will be available until the state of disaster is terminated.

(b) Telehealth and telemedicine have the same meaning as the terms telehealth services and telemedicine medical services defined in §111.001 of the Texas Occupations Code (relating to Definitions).

(c) The following flexibilities are available to community behavioral health providers to the extent such providers are providing services under Title 25, Part 1 or Title 26, Part 1 of the Texas Administrative Code (TAC) and to the extent the flexibilities do not conflict with federal or state laws, regulations, rules, or orders.

(1) For rules under Title 25, Part 1 and Title 26, Part 1 of the TAC that require a community behavioral health provider to deliver certain services:

(A) through face-to-face or in-person contact, such as the following rules, the provider may use telehealth, telemedicine, video-conferencing, or telephonic methods to engage with the individual to provide these services, to the extent such use is permitted within the scope of the provider's state license, permit, or other legal authorization:

(i) §301.327 of this title (relating to Access to Mental Health Community Services);

(ii) §301.351 of this title (relating to Crisis Services);

(iii) §301.353 of this title (relating to Provider Responsibilities for Treatment Planning and Service Authorization);

(iv) §301.357 of this title (relating to Additional Standards of Care Specific to Mental Health Community Services for Children and Adolescents);

(v) §301.359 of this title (relating to Telemedicine Services);

(vi) §306.207 of this chapter (relating to Post Discharge or Absence for Trial Placement: Contact and Implementation of the Recovery or Treatment Plan);

(vii) §306.263 of this chapter (relating to MH Case Management Services Standards);

(viii) §306.275 of this chapter (relating to Documenting MH Case Management Services);

(ix) §306.277 of this chapter (relating to Medicaid Reimbursement);

(x) §306.305 of this chapter (relating to Definitions);

(xi) §306.323 of this chapter (relating to Documentation Requirements);

(xii) §306.327 of this chapter (relating to Medicaid Reimbursement);

(xiii) §307.53 of this title (relating to Eligibility Criteria and HCBS-AMH Assessment);

(xiv) 25 TAC §415.10 (relating to Medication Monitoring); and

(xv) 25 TAC §415.261 (relating to Time Limitation on an Order for Restraint or Seclusion Initiated in Response to a Behavioral Emergency); or

(B) in a specific physical space or on site, such as 25 TAC §414.554 (relating to Responsibilities of Local Authorities, Community Centers, and Contractors), the provider may deliver the service using virtual platforms, such as telephone or videoconferencing.

(2) Section 307.5 of this title (relating to Eligibility Criteria) that require a child or adolescent participating in the Youth Empowerment Services (YES) Waiver Program to reside with their legally authorized representative to receive services may reside with another responsible adult. Providers must ensure the alternate residency complies with any applicable requirements related to participation in the YES Waiver Program. The flexibility allowed under this subsection IS NOT IN EFFECT unless and until the Centers for Medicare & Medicaid Services approves HHSC's request for activation of Appendix-K.

(3) For rules under Title 25, Part 1 and Title 26, Part 1 of the TAC that require staff training through face-to-face or in-person contact or in a specific physical space or on site, staff training may be done on virtual platforms.

(4) For rules under Title 25, Part 1 and Title 26, Part 1 of the TAC where HHSC may issue guidance to extend timeframe flexibilities:

(A) the extended timeframe may not be longer than 120 days for compliance with staff training requirements based on training availability and feasibility during, or resulting from, a declared disaster; and

(B) an individual's or staff member's health or safety shall not be compromised by the flexibilities for training requirements provided in:

(i) §306.83 of this chapter (relating to Staff Training); and

(ii) §301.331 of this title (relating to Competency and Credentialing).

(d) Providers that avail themselves of the flexibilities allowed under subsection (c) of this section, must comply with:

(1) all guidance on the application of the rules during the declaration of disaster that is published by HHSC on its website or in another communication format HHSC determines appropriate; and

(2) all policy guidance applicable to the rules identified in subsection (c) of this section issued by the Texas Health and Human Service Commission Medicaid Services Department.

(e) Providers must ensure any method of contact complies with all applicable requirements related to security and privacy of information.

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 20, 2021.

TRD-202104216

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: November 15, 2021

Proposal publication date: July 30, 2021

For further information, please call: (512) 468-1729