TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 355. REIMBURSEMENT RATES

SUBCHAPTER J. PURCHASED HEALTH SERVICES

DIVISION 4. MEDICAID HOSPITAL SERVICES

1 TAC §355.8068

The Texas Health and Human Services Commission (HHSC) adopts new §355.8068, concerning Local Provider Participation Fund Reporting. Section 355.8068 is adopted with changes to the proposed text as published in the August 2, 2019, issue of the Texas Register (44 TexReg 3992), and will be republished.

BACKGROUND AND JUSTIFICATION

The new section is necessary to comply with federal and state laws. These laws require HHSC to report certain information about Local Provider Participation Funds (LPPFs).

The adopted rule requires that information related to mandatory payments to local governments, and other pertinent information, be reported to HHSC no later than ten calendar days after the end of the federal fiscal quarter. The adoption complies with House Bill (H.B.) 4289, 86th Legislature, Regular Session, 2019; the General Appropriations Act (GAA), 2020-21 Biennium, Article II, HHSC, Rider 26; and Title 42 of the Code of Federal Regulations (CFR), §433.74. Federal and state laws require the state Medicaid agency to submit this information no later than 30 days after the end of each quarter. In addition, HHSC must maintain supporting documentation for these payments. Failure to comply with 42 CFR §433.74 can result in deferral of federal funds.

COMMENTS

The 31-day comment period ended September 3, 2019.

During this period, HHSC received comments regarding the proposed rule from five commenters, including Texas Essential Healthcare Partnerships, Texas Conference of Urban Counties, Community Health Systems, Teaching Hospitals of Texas, and Central Health. A summary of comments relating to the §355.8068 and HHSC's responses follows.

Comment: Several commenters suggested using an alternative interval of time to require reporting. The rule proposed quarterly reporting, but some commenters suggested annual reporting on at least some required pieces of information.

Response: HHSC declines to change the interval for reporting from the end of each federal fiscal quarter. Title 42 CFR §433.74 requires the state Medicaid agency to submit information on the source and use of all health care-related taxes collected to the Centers for Medicare & Medicaid Services (CMS) quarterly. Additionally, H.B. 4289 and the GAA, 2020-21 Biennium, Article II, HHSC, Rider 26 require HHSC to report all mandatory payments to a local jurisdiction operating an LPPF, and all uses of such payments, quarterly.

Comment: Several commenters suggested lengthening the reporting period to at least 30 days after the end of the federal fiscal quarter.

Response: HHSC declines to change the deadline for when reporting must be completed. Title 42 CFR §433.74 requires the state Medicaid agency to submit the required information to the CMS on a quarterly basis. This regulation requires that the state "must maintain...supporting documentation that provides a detailed description and legal basis" for mandatory payments. Title 42 CFR §430.30 and CMS Circular, Supporting Statement A, Quarterly Medicaid and CHIP Budget and Expenditure Reporting for the Medical Assistance Program, Administration and CHIP. identify the deadline for reporting CMS-64 information is no later than 30 days after the end of the federal fiscal quarter being reported. To make this deadline, HHSC must begin routing all necessary information internally 20 days before the reporting deadline. Additionally, state directives require state reporting on the same timeline as the federal reporting.

HHSC will ensure the reporting portal opens prior to the end of the federal fiscal quarter to allow local jurisdictions to submit the required information and allow HHSC to maintain compliance with the federal deadline. Section 355.8068(d) was revised to allow the reporting portal to open before the end of the federal fiscal quarter.

Comment: Several commenters suggested eliminating the penalty or clarifying the duration of the penalty.

Response: HHSC declines to eliminate the penalty because the agency is dependent on the local jurisdictions to provide the required information so that HHSC can comply with all reporting requirements. Should HHSC not comply with federal regulations, then it would be subject to penalties. For clarification regarding the penalty for local jurisdictions that do not report by the deadline, HHSC will not accept intergovernmental transfers from a local jurisdiction for any Medicaid program until the reporting requirement is satisfied.

Comment: Several commenters identified that the rule goes beyond what existing federal and state law requires.

Response: As the state Medicaid agency, HHSC is responsible for ensuring it complies with all legal requirements. State requirements are broad. HHSC is required to comply with state legislative reporting requirements identified in the GAA, 2020-21 Biennium, Article II, HHSC, Rider 26 and in H.B. 4289. Each piece of legislation requires more detailed reporting than what is required by the federal government. No changes were made in response to this comment.

HHSC made an editorial change to clarify in §355.8068(f) that HHSC will not accept a transfer of funds for any Medicaid program from a local jurisdiction operating an LPPF until the reporting requirement is satisfied.

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; Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas; and H.B. 4289, 86th Legislature, Regular Session, 2019 (to be codified as new Chapters 300 and 300A in Texas Health and Safety Code, Subtitle D, Title 4), which requires the Executive Commissioner of HHSC to adopt rules for administration of the bill's reporting requirement.

§355.8068.Local Provider Participation Fund Reporting.

(a) Purpose. As required by federal and state law, the Health and Human Services Commission (HHSC) requires a local jurisdiction that operates a local provider participation fund (LPPF) to report mandatory payments.

(b) Definitions.

(1) Institutional health care provider--A non-public hospital that provides inpatient hospital services.

(2) Local jurisdiction--A non-state governmental entity that operates an LPPF.

(3) Mandatory payment--A payment required to be made to an LPPF based on the net patient revenue of a paying hospital.

(4) Paying hospital--An institutional health care provider required to make a mandatory payment.

(5) Rate--The amount calculated for each paying hospital to submit to the LPPF.

(c) A local jurisdiction that operates an LPPF must report information to HHSC in a form and format to be determined by HHSC as described in subsection (e) of this section.

(d) The information must be reported for each federal fiscal quarter, no later than ten calendar days after the end of the federal fiscal quarter. HHSC will open the information reporting system prior to the end of the federal fiscal quarter.

(e) The report for each federal fiscal quarter must include:

(1) the rate used to determine the mandatory payment;

(2) a list of all paying hospitals;

(3) the amount of the mandatory payment required of each paying hospital;

(4) the amount of the mandatory payment received by the LPPF from each paying hospital;

(5) the sum of the mandatory payments received by the LPPF; and

(6) the purpose for which the LPPF funds were expended or transferred and the amount and date for each transfer or expenditure.

(f) If a local jurisdiction that created an LPPF fails to submit the required information, HHSC will not accept a transfer of LPPF funds for any Medicaid program from the local jurisdiction until the reporting requirement is satisfied.

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 4, 2019.

TRD-201903585

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: November 1, 2019

Proposal publication date: August 2, 2019

For further information, please call: (512) 428-1988