Current through Reg. 49, No. 38; September 20, 2024
(a) Eligible
programs. Providers contracted in the following programs are eligible to
participate in the attendant compensation rate enhancement:
(1) Community Living Assistance and Support
Services (CLASS)--Direct Service Agency (DSA);
(2) Day Activity and Health Services
(DAHS);
(3) Deaf-Blind with
Multiple Disabilities Waiver (DBMD);
(4) Home and Community-based Services
(HCS);
(5) Intermediate Care
Facilities for Individuals with Intellectual Disability or Related Conditions
(ICF/IID) ("Related Conditions" has the same meaning as in 26 TAC §
261.203(relating to
Definitions));
(6) Primary Home
Care (PHC);
(7) Residential Care
(RC); and
(8) Texas Home Living
(TxHmL).
(b) Managed Care
Providers. A provider contracted with a managed care organization (MCO) to
provide attendant care services may participate in any Attendant Compensation
Rate Enhancement Program through the MCO with whom it is contracted, as
provided by the MCO's managed care contract with HHSC. Each MCO is responsible
for managing any Attendant Compensation Rate Enhancement Program for its
contracted providers, including provider enrollment and compliance with the
program's spending requirements or any spending requirements imposed under
state or federal law.
(c)
Definition of attendant. For the purposes of the Attendant Compensation Rate
Enhancement Program under this section, an attendant is an unlicensed caregiver
providing direct assistance to individuals with Activities of Daily Living
(ADL) and Instrumental Activities of Daily Living (IADL).
(1) Attendants do not include the director,
administrator, assistant director, assistant administrator, clerical and
secretarial staff, professional staff, other administrative staff, licensed
staff, attendant supervisors, cooks and kitchen staff, maintenance and
groundskeeping staff, activity director, DBMD Interveners I, II or III,
Qualified Intellectual Disability Professionals (QIDPs) or assistant QIDPs,
direct care worker supervisors, direct care trainer supervisors, job coach
supervisors, foster care providers, and laundry and housekeeping staff. Staff
other than attendants may deliver attendant services and be considered an
attendant if they must perform attendant services that cannot be delivered by
another attendant to prevent a break in service.
(2) An attendant also includes the following:
(A) a driver who is transporting individuals
in the DAHS, ICF/IID, and RC programs and the HCS SL/RSS and HCS and TxHmL
individualized skills and socialization settings;
(B) a medication aide in the HCS SL/RSS
setting, ICF/IID, and RC programs; and
(C) direct care workers, direct care
trainers, job coaches, employment assistance direct care workers, and supported
employment direct care workers.
(d) Attendant compensation cost center. This
cost center will include employee compensation, contract labor costs, and
personal vehicle mileage reimbursement for attendants as defined in subsection
(c) of this section.
(1) Attendant
compensation is the allowable compensation for attendants defined in §
355.103(b)(1) of
this title (relating to Specifications for Allowable and Unallowable Costs) and
required to be reported as either salaries and/or wages, including payroll
taxes and workers' compensation, or employee benefits. Benefits required by
§
355.103(b)(1)(A)(iii)
of this title to be reported as costs applicable to specific cost report line
items, except as noted in paragraph (3) of this subsection, are not to be
included in this cost center. For ICF/IID, attendant compensation is also
subject to the requirements detailed in §
355.457 of this title (relating to
Cost Finding Methodology). For HCS and TxHmL, attendant compensation is also
subject to the requirements detailed in §
355.722 of this title (relating to
Reporting Costs by Home and Community-based Services (HCS) and Texas Home
Living (TxHmL) Providers).
(2)
Contract labor refers to personnel for whom the contracted provider is not
responsible for the payment of payroll taxes, such as FICA, Medicare, and
federal and state unemployment insurance, and who perform tasks routinely
performed by employees where allowed by program rules.
(3) Mileage reimbursement paid to the
attendant for the use of his or her personal vehicle and which is not subject
to payroll taxes is considered compensation for this cost center.
(e) Rate year. The rate year
begins on the first day of September and ends on the last day of August of the
following year.
(f) Open
enrollment. Open enrollment begins on the first day of July and ends on the
last day of that same July preceding the rate year for which payments are being
determined. The Texas Health and Human Services Commission (HHSC) notifies
providers of open enrollment via email sent to an authorized representative per
the signature authority designation form applicable to the provider's contract
or ownership type. Requests to modify a provider's enrollment status during an
open enrollment period must be received by HHSC by the last day of the open
enrollment period through HHSC's enrollment portal or another method designated
by HHSC. If the last day of open enrollment is on a weekend day, state holiday,
or national holiday, the next business day will be considered the last day
requests will be accepted. If open enrollment has been postponed or canceled,
HHSC will notify providers by email before the first day of July. Should
conditions warrant, HHSC may conduct additional enrollment periods during a
rate year.
(g) Enrollment contract
amendment.
(1) For CLASS--DSA, DBMD, DAHS, RC
and PHC, an initial enrollment contract amendment is required from each
provider choosing to participate in the attendant compensation rate
enhancement. On the initial enrollment contract amendment, the provider must
specify for each contract a desire to participate or not to participate and a
preferred participation level.
(2)
For ICF/IID, HCS and TxHmL, an initial enrollment contract amendment is
required from each provider choosing to participate in the attendant
compensation rate enhancement. On the initial enrollment contract amendment,
the provider must specify for each component code a desire to participate or
not to participate and a preferred participation level. All contracts of a
component code within a specific program must either participate at the same
level or not participate.
(A) For the ICF/IID
program, the participating provider must also specify the services the provider
wishes to participate in the attendant compensation rate enhancement. Eligible
services are residential services and day habilitation services. The
participating provider must specify whether the provider wishes to participate
for residential services only, day habilitation services only or both
residential services and day habilitation services.
(B) For the HCS and TxHmL programs, eligible
services are divided into three categories. The three categories of services
eligible for rate enhancement are the following:
(i) non-individualized skills and
socialization services:
(I) SHL/CFC PAS
HAB/CSS;
(II) in-home respite (IHR)
and out-of-home respite (OHR);
(III) supported employment (SE);
and
(IV) employment assistance
(EA);
(ii) individualized
skills and socialization services; and
(iii) residential services:
(I) SL; and
(II) RSS.
(C) The participating provider must specify
which combination of the three categories of services the attendant
compensation rate enhancement will apply to. For providers delivering services
in both the HCS and TxHmL programs, the selected categories must be the same
for their HCS and TxHmL programs, except for residential services which are
only available in the HCS program.
(3) After initial enrollment, participating
and nonparticipating providers may request to modify their enrollment status
during any open enrollment period as follows:
(A) a nonparticipant can request to become a
participant;
(B) a participant can
request to become a nonparticipant; or
(C) a participant can request to change its
participation level.
(4)
Providers whose prior year enrollment was limited by subsection (v) of this
section who request to increase their enrollment levels will be limited to
increases of three or fewer enhancement levels during the first open enrollment
period after the limitation. Providers that were subject to an enrollment
limitation may request to participate at any level during open enrollment
beginning two years after limitation.
(5) Requests to modify a provider's
enrollment status during an open enrollment period must be received by HHSC by
the last day of the open enrollment period as per subsection (f) of this
section. If the last day of open enrollment is on a weekend day, state holiday,
or national holiday, the next business day will be considered the last day
requests will be accepted.
(6) For
PHC, DAHS, RC, and CLASS--DSA providers from which HHSC has not received an
acceptable request to modify their enrollment by the last day of the open
enrollment period will continue at the level of participation in effect during
the open enrollment period within available funds until the provider notifies
HHSC in accordance with subsection (y) of this section that it no longer wishes
to participate or until the provider's enrollment is limited in accordance with
subsection (v) of this section.
(7)
To be acceptable, an enrollment contract amendment must be completed according
to instructions, signed by an authorized representative as per HHSC's signature
authority designation form applicable to the provider's contract or ownership
type, and legible.
(h)
Enrollment of new contracts. For the purposes of this section, for each rate
year a new contract is defined as a contract or component code whose effective
date is on or after the first day of the open enrollment period, as defined in
subsection (f) of this section, for that rate year. Contracts that underwent a
contract assignment or change of ownership and new contracts that are part of
an existing component code are not considered new contracts. For purposes of
this subsection, an acceptable contract amendment is defined as a legible
enrollment contract amendment that has been completed according to
instructions, signed by an authorized representative as per HHSC's signature
authority designation form applicable to the provider's contract or ownership
type, and received by HHSC within 30 days of notification to the provider that
such an enrollment contract amendment must be submitted. If the 30th day is on
a weekend day, state holiday, or national holiday, the next business day will
be considered the last day requests will be accepted. New contracts will
receive the nonparticipant attendant compensation rate as specified in
subsection (m) of this section with no enhancements. For new contracts
specifying their desire to participate in the attendant compensation rate
enhancement on an acceptable enrollment contract amendment, the attendant
compensation rate is adjusted as specified in subsection (s) of this section,
effective on the first day of the month following receipt by HHSC of an
acceptable enrollment contract amendment. If the granting of newly requested
enhancements was limited by subsection (q)(2)(B) of this section during the
most recent enrollment, enrollment for new contracts will be subject to that
same limitation. If the most recent enrollment was canceled by subsection (f)
of this section, new contracts will not be permitted to be enrolled.
(i) Attendant Compensation Report.
(1) Definition of Attendant Compensation
Report. An attendant compensation report is a report reflecting the provider's
activities while delivering contracted services from the first day of the rate
year through the last day of the rate year or provider's cost report year while
participating in the attendant compensation rate enhancement program. This
report is used as the basis for determining compliance with the spending
requirements as described in subsection (t) of this section. Cost and
accountability reports requested by HHSC are considered attendant compensation
reports, and preparers must complete mandatory training requirements per §
355.102(d) of this
subchapter (relating to General Principles of Allowable and Unallowable
Costs).
(2) Providers must file
Attendant Compensation Reports as follows. HHSC will require a subset of
participating contracted providers to submit an annual Attendant Compensation
Report to HHSC in a method specified by HHSC.
(A) Cost reports serving as Attendant
Compensation Reports. If HHSC requires a participating provider to file a cost
report for a rate year, HHSC will use that provider's cost report as an
Attendant Compensation Report as the basis for determining compliance with the
spending requirements as described in subsection (t) of this section.
(B) Accountability reports serving as
Attendant Compensation Reports. HHSC will require a select number of
participating providers who are not required to submit a cost report for a rate
year to submit an accountability report, which will serve as an Attendant
Compensation Report as the basis for determining compliance with the spending
requirements as described in subsection (t) of this section. These providers
will be selected at random from the total number of participating contracts
that are not required to submit a cost report for a rate year. The number
selected must represent a statistically valid sample of participating
providers.
(C) The Attendant
Compensation Report must be submitted for each participating contract if the
provider requested participation individually for each contract; or, if the
provider requested participation as a group, the report must be submitted as a
single aggregate report covering all contracts participating at the end of the
rate year within one program of the provider. A participating contract that has
been terminated in accordance with subsection (w) of this section or that has
undergone a contract assignment in accordance with subsection (x) of this
section will be considered to have participated on an individual basis for
compliance with reporting requirements for the owner prior to the termination
or contract assignment.
(D) If
required to submit a report by HHSC, contracted providers failing to submit an
acceptable annual Attendant Compensation Report within 60 days of the end of
the rate year will be placed on vendor hold until such time as an acceptable
report is received and processed by HHSC.
(E) When a participating provider changes
ownership through a contract assignment, the prior owner may be required to
submit an Attendant Compensation Report covering the period from the beginning
of the rate year to the effective date of the contract assignment as determined
by HHSC, or its designee. If required, this report will be used as the basis
for determining any recoupment amounts as described in subsection (t) of this
section. The new owner may be required to submit an Attendant Compensation
Report covering the period from the day after the date recognized by HHSC, or
its designee, as the contract-assignment effective date to the end of the rate
year.
(F) Participating providers
whose contracts are terminated voluntarily or involuntarily may be required to
submit an Attendant Compensation Report covering the period from the beginning
of the rate year to the date recognized by HHSC or its designee as the contract
termination date. If required, this report will be used as the basis for
determining recoupment as described in subsection (t) of this
section.
(G) Participating
providers who voluntarily withdraw from participation, as described in
subsection (y) of this section, may be required to submit an Attendant
Compensation Report within 60 days from the date of withdrawal as determined by
HHSC. If required, this report must cover the period from the beginning of the
rate year through the date of withdrawal as determined by HHSC and will be used
as the basis for determining any recoupment amounts as described in subsection
(t) of this section.
(H)
Participating providers whose cost report year, as defined in §
355.105(b)(5) of
this subchapter (relating to General Reporting and Documentation Requirements,
Methods, and Procedures), coincides with the state of Texas fiscal year, are
exempt from the requirement to submit a separate Attendant Compensation Report.
For these contracts, their cost report will be considered their Attendant
Compensation Report.
(3)
Cost Reports. Cost reports as described in §355.105(b) - (c) of this
subchapter will serve as the Attendant Compensation Report with the following
exceptions.
(A) When a participating provider
changes ownership through a contract assignment or change of ownership, the
previous owner may be required to submit an Attendant Compensation Report
covering the period from the beginning of the provider's cost reporting period
to the date recognized by HHSC, or its designee, as the contract-assignment or
ownership-change effective date. If required, this report will be used as the
basis for determining any recoupment amounts as described in subsection (t) of
this section. The new owner may be required to submit a cost report covering
the period from the day after the date recognized by HHSC or its designee as
the contract-assignment or ownership-change effective date to the end of the
provider's fiscal year.
(B) When
one or more contracts or, for the ICF/IID, HCS, and TxHmL programs, component
codes of a participating provider are terminated, either voluntarily or
involuntarily, the provider may be required to submit an Attendant Compensation
Report for the terminated contract(s) or component code(s) covering the period
from the beginning of the provider's cost reporting period to the date
recognized by HHSC, or its designee, as the contract or component code
termination date. This report will be used as the basis for determining any
recoupment amounts as described in subsection (t) of this section.
(C) When one or more contracts or, for the
ICF/IID, HCS and TxHmL programs, component codes of a participating provider
are voluntarily withdrawn from participation as per subsection (y) of this
section, the provider may be required to submit an Attendant Compensation
Report within 60 days of the date of withdrawal as determined by HHSC, covering
the period from the beginning of the provider's cost reporting period to the
date of withdrawal as determined by HHSC. If required, this report will be used
as the basis for determining any recoupment amounts as described in subsection
(t) of this section. These providers may still be required to submit a cost
report covering the entire cost reporting period. The cost report will be used
for determining any recoupment amounts.
(D) For new contracts as defined in
subsection (h) of this section, the cost reporting period will begin with the
effective date of participation in the enhancement.
(E) Existing providers who become
participants in the enhancement as a result of the open enrollment process
described in subsection (f) of this section on any day other than the first day
of their fiscal year may be required to submit an Attendant Compensation Report
with a reporting period that begins on their first day of participation in the
enhancement and ends on the last day of the provider's fiscal year. If
required, this report will be used as the basis for determining any recoupment
amounts as described in subsection (t) of this section. These providers may
still be required to submit a cost report covering the entire cost reporting
period. The cost report will be used for determining any recoupment
amounts.
(F) A participating
provider that is required to submit a cost report or Attendant Compensation
Report under this paragraph will be excused from the requirement to submit a
report if the provider did not provide any billable attendant services to HHSC
recipients during the reporting period.
(4) Other reports. HHSC may require other
reports from all contracts as needed.
(5) Vendor hold. HHSC, or its designee, will
place on hold the vendor payments for any participating provider who does not
submit a timely report as described in paragraph (2) of this subsection
completed in accordance with all applicable rules and instructions. This vendor
hold will remain in effect until HHSC receives an acceptable report.
(A) Participating contracts or, for the
ICF/IID, HCS and TxHmL programs, component codes may be required to submit an
Attendant and Compensation Report. Participating facilities required to submit
an Attendant and Compensation Report that do not submit an acceptable report
completed in accordance with all applicable rules and instructions within 60
days of the due dates described in this subsection or, for cost reports, the
due dates described in §
355.105(b) of this
subchapter will become nonparticipants retroactive to the first day of the
reporting period in question and will be subject to an immediate recoupment of
funds related to participation paid to the contractor for services provided
during the reporting period in question. These contracts or component codes
will remain nonparticipants and recouped funds will not be restored until they
submit an acceptable report and repay to HHSC, or its designee, funds
identified for recoupment from subsection (t) of this section. If an acceptable
report is not received within 365 days of the due date, the recoupment will
become permanent and, if all funds associated with participation during the
reporting period in question have been recouped by HHSC, or its designee, the
vendor hold associated with the report will be released.
(B) Participating contracts or, for the
ICF/IID, HCS, and TxHmL programs, component codes that have terminated or
undergone a contract assignment or ownership-change from one legal entity to a
different legal entity may be required to submit an Attendant and Compensation
Report. Participating facilities required to submit an Attendant and
Compensation Report that do not submit an acceptable report completed in
accordance with all applicable rules and instructions within 60 days of the
contract assignment, ownership-change, or termination effective date will
become nonparticipants retroactive to the first day of the reporting period in
question. These contracts or component codes will remain nonparticipants, and
recouped funds will not be restored until they submit an acceptable report and
repay to HHSC, or its designee, funds identified for recoupment under
subsection (t) of this section. If an acceptable report is not received within
365 days of the contract assignment, ownership-change, or termination effective
date, the recoupment will become permanent and, if all funds associated with
participation during the reporting period in question have been recouped by
HHSC, or its designee, the vendor hold associated with the report will be
released.
(6)
Provider-initiated amended Attendant Compensation Reports and cost reports
functioning as Attendant Compensation Reports. Reports must be received before
the date the provider is notified of compliance with spending requirements for
the report in question in accordance with subsection (t) of this
section.
(j) Report
contents. Each Attendant Compensation Report and cost report functioning as an
Attendant Compensation Report will include any information required by HHSC to
implement this attendant compensation rate enhancement.
(k) Completion of compensation reports. All
Attendant Compensation Reports and cost reports functioning as Attendant
Compensation Reports must be completed in accordance with the provisions of
§§
355.102-
355.105 of this subchapter
(relating to General Principles of Allowable and Unallowable Costs;
Specifications for Allowable and Unallowable Costs; Revenues; and General
Reporting and Documentation Requirements, Methods, and Procedures) and may be
reviewed or audited in accordance with §
355.106 of this subchapter
(relating to Basic Objectives and Criteria for Audit and Desk Review of Cost
Reports). All Attendant Compensation Reports and cost reports functioning as
Attendant Compensation Reports must be completed by preparers who have attended
the required cost report training for the applicable program under §
355.102(d) of this
subchapter. For the ICF/IID program, cost reports functioning as Attendant
Compensation Reports must also be completed in accordance with the provisions
of §
355.456 of this chapter (relating
to Reimbursement Methodology). For the HCS and TxHmL programs, cost reports
functioning as Attendant Compensation Reports must also be completed in
accordance with the provisions of §
355.722 of this chapter (relating
to Reporting Costs by Home and Community-based Services (HCS) and Texas Home
Living (TxHmL) Providers).
(l)
Enrollment. Providers choosing to participate in the attendant compensation
rate enhancement must submit to HHSC a signed enrollment contract amendment as
described in subsection (g) of this section. Participation is determined
separately for each program specified in subsection (a) of this section, except
that for providers delivering both HCS and TxHmL services, participation
includes both the HCS and TxHmL programs. For PHC, participation is also
determined separately for priority and nonpriority services. For ICF/IID,
participation is also determined separately for residential services and day
habilitation services. For HCS and TxHmL, participation is also determined
separately for the non-individualized skills and socialization services,
individualized skills and socialization services, and residential services
categories as defined in subsection (g)(2)(B) of this section. Participation
will remain in effect, subject to availability of funds, until the provider
notifies HHSC, in accordance with subsection (y) of this section, that it no
longer wishes to participate or until HHSC excludes the contract from
participation for reasons outlined in subsection (v) of this section. Contracts
or component codes voluntarily withdrawing from participation will have their
participation end effective with the date of withdrawal as determined by HHSC.
Contracts or components codes excluded from participation will have their
participation end effective on the date determined by HHSC.
(m) Determination of attendant compensation
rate component for nonparticipating contracts.
(1) For CLASS--DSA; DAHS; DBMD; PHC; RC;
STAR+PLUS AL; STAR+PLUS HCBS and Non-HCBS programs, HHSC will calculate an
attendant compensation rate component for nonparticipating contracts by
calculating a median of attendant compensation cost center data as defined in
subsection (d) of this section for each applicable attendant service, weighted
by the applicable attendant service's units of service from the most recently
examined cost report database for each program, and adjusted for inflation from
the cost reporting period to the prospective rate period as specified in
§355.108 (related to Determination of Inflation Indices).
(A) The weighted median cost component is
multiplied by 1.044 for CLASS--DSA, DBMD, PHC, STAR+PLUS HCBS, and Non-HCBS;
and by 1.07 for DAHS, RC and STAR+PLUS AL. The result is the attendant
compensation rate component for nonparticipating contracts.
(B) If HHSC has insufficient cost data, the
attendant compensation rate component will be established through a pro forma
costing approach as defined in §
355.105(h) of this
subchapter.
(2) For
ICF/IID DH, ICF/IID residential services, HHSC will calculate an attendant
compensation rate component for nonparticipating contracts for each service by
calculating a median of attendant compensation cost center data as defined in
subsection (d) of this section for each DH and Residential services, weighted
by ICF/IID units of service from the most recently examined ICF/IID cost report
database, and adjusted for inflation from the cost reporting period to the
prospective rate period as specified in §355.108 (related to Determination
of Inflation Indices).
(A) The weighted median
attendant cost component is adjusted by modeled direct care hours to unit
ratios to determine attendant compensation rate components for each level of
need (LON).
(B) The weighted median
cost component is multiplied by 1.07 for both ICF/IID DH and residential
services.
(C) If HHSC has
insufficient cost data, the attendant compensation rate component will be
established through a pro forma costing analysis as defined in §
355.105(h) of this
subchapter.
(3) For HCS
and TxHmL programs, HHSC will calculate an attendant compensation rate
component for nonparticipating contracts for each service by calculating a
median of attendant compensation cost center data as defined in subsection (d)
of this section for each applicable attendant service, weighted by the
applicable attendant service's units of service from the most recently examined
HCS/TxHmL cost report database, and adjusted for inflation from the cost
reporting period to the prospective rate period as specified in §355.108
(related to Determination of Inflation Indices).
(A) The weighted median cost component is
multiplied by 1.044 for the following services:
(i) EA;
(ii) IHR;
(iii) OHR in a camp;
(iv) OHR in a respite facility;
(v) OHR in a setting where host home /
companion care (HH/CC) is provided;
(vi) OHR in a setting that is not listed;
and
(vii) SE;
(B) The weighted median cost component is
multiplied by 1.07 for the following services:
(i) individualized skills and socialization
services;
(ii) OHR in an
individualized skills and socialization facility;
(iii) OHR in a setting with SL or RSS is
provided;
(vi) RSS; and
(v) SL.
(C) For services with rates that are variable
by LON as specified in §
355.723(b) of this
chapter (relating to Reimbursement Methodology for Home and Community-based
Services and Texas Home Living Programs), the weighted median attendant cost
component is adjusted by modeled direct care hours to unit or direct care staff
to individual ratios to determine attendant compensation rate components for
each LON.
(D) If HHSC has
insufficient cost data, the attendant compensation rate component will be
established through a pro forma costing analysis as defined in §
355.105(h) of this
subchapter.
(4) The
adopted attendant compensation rate component for nonparticipating contracts
will be limited to available levels of appropriated state and federal funds as
specified in §
355.201 of this chapter (relating
to Establishment and Adjustment of Reimbursement Rates for Medicaid).
(n) Determination of attendant
compensation base rate for participating contracts. For each of the programs
identified in subsection (a) of this section, the attendant compensation base
rate is equal to the attendant compensation rate component for nonparticipating
contracts from subsection (m) of this section.
(o) Determination of attendant compensation
rate enhancements. HHSC will determine a per diem add-on payment for each
enhanced attendant compensation level using data from sources such as cost
reports, surveys, and/or other relevant sources and taking into consideration
quality of care, labor market conditions, economic factors, and budget
constraints. The attendant compensation rate enhancement add-ons will be
determined on a per-unit-of-service basis applicable to each program or
service. Add-on payments may vary by enhancement level.
(p) Enhanced attendant compensation.
Contracts or component codes desiring to participate in the enhanced attendant
compensation rate may request attendant compensation levels from an array of
enhanced attendant compensation options and associated add-on payments
determined in subsection (o) of this section during open enrollment.
(1) ICF/IID providers must select a single
attendant compensation level for all contracts within a component code for the
day habilitation and/or residential services they have selected for
participation.
(2) HCS and TxHmL
must select a single attendant compensation level for all contracts within a
component code for the non-individualized skills and socialization services
and/or individualized skills and socialization services and/or residential
services they have selected for participation.
(q) Granting attendant compensation rate
enhancements. Eligible programs are divided into two populations for purposes
of granting attendant compensation rate enhancements. The first population
includes the PHC; DAHS; RC; CLASS--DSA; and DBMD programs, and the second
population includes the ICF/IID; HCS; and TxHmL programs. Enhancements for the
two populations are funded separately; funds intended for enhancements for the
first population of programs will never be used for enhancements for the second
population, and funds intended for enhancements for the second population of
programs will never be used for enhancements for the first population. For each
population of programs, HHSC divides all requested enhancements, after applying
any enrollment limitations from subsection (v) of this section, into two
groups: pre-existing enhancements, which providers request to carry over from
the prior year, and newly-requested enhancements. Newly-requested enhancements
may be enhancements requested by providers who were nonparticipants in the
prior year or by providers who were participants in the prior year who seek
additional enhancements. Using the process described herein separately for each
population of programs, HHSC first determines the distribution of carry-over
enhancements. If funds are available after the distribution of carry-over
enhancements, HHSC determines the distribution of newly-requested enhancements.
HHSC may not distribute newly-requested enhancements to providers owing funds
identified for recoupment under subsection (t) of this section.
(1) For all programs and levels, HHSC
determines projected units of service for contracts and/or component codes
requesting each enhancement level and multiplies this number by the enhancement
rate add-on amount associated with that enhancement level as determined in
subsection (o) of this section.
(2)
HHSC compares the sum of the products from paragraph (1) of this subsection to
available funds.
(A) If the sum of the
products is less than or equal to available funds, all requested enhancements
are granted.
(B) If the sum of the
products is greater than available funds, enhancements are granted beginning
with the lowest level of enhancement and granting each successive level of
enhancement until requested enhancements are granted within available funds.
Based upon an examination of existing compensation levels and compensation
needs, HHSC may grant certain enhancement options priority for
distribution.
(r) Notification of granting of enhancements.
Participating contracts and component codes are notified, in a manner
determined by HHSC, as to the disposition of their request for attendant
compensation rate enhancements.
(s)
Total attendant compensation rate for participating providers. Each
participating provider's total attendant compensation rate will be equal to the
attendant compensation base rate from subsection (n) of this section plus any
add-on payments associated with enhanced attendant compensation levels selected
by and awarded to the provider during open enrollment.
(t) Spending requirements for participating
contracts and component codes. HHSC will determine from the Attendant
Compensation Report or cost report functioning as an Attendant Compensation
Report, as specified in subsection (i) of this section and other appropriate
data sources, the amount of attendant compensation spending per unit of service
delivered. The provider's compliance with the spending requirement is
determined based on the total attendant compensation spending as reported on
the Attendant Compensation Report or cost report functioning as an Attendant
Compensation Report for each participating contract or component code.
Compliance with the spending requirement is determined separately for each
program specified in subsection (a) of this section, except for providers
delivering services in both the HCS and TxHmL programs whose compliance is
determined by combining both programs. HHSC will calculate recoupment, if any,
as follows.
(1) The accrued attendant
compensation revenue per unit of service is multiplied by 0.90 to determine the
spending requirement per unit of service. The accrued attendant compensation
spending per unit of service will be subtracted from the spending requirement
per unit of service to determine the amount to be recouped. If the accrued
attendant compensation spending per unit of service is greater than or equal to
the spending requirement per unit of service, there is no recoupment.
(2) The amount paid for attendant
compensation per unit of service after adjustments for recoupment must not be
less than the amount determined for nonparticipating contracts or component
codes in subsection (k) of this section.
(3) In cases where more than one enhancement
level is in effect during the reporting period, the spending requirement will
be based on the weighted average enhancement level in effect during the
reporting period calculated as follows.
(A)
Multiply the first enhancement level in effect during the reporting period by
the most recently available, reliable Medicaid units of service utilization
data for the time period the first enhancement level was in effect.
(B) Multiply the second enhancement level in
effect during the reporting period by the most recently available, reliable
Medicaid units of service utilization data for the time period the second
enhancement level was in effect.
(C) Sum the products from subparagraphs (A)
and (B) of this paragraph.
(D)
Divide the sum from subparagraph (C) of this paragraph by the sum of the most
recently available, reliable Medicaid units of service utilization data for the
entire reporting period used in subparagraphs (A) and (B) of this
paragraph.
(u)
Notification of recoupment. The estimated amount to be recouped is indicated in
the State of Texas Automated Information Reporting System (STAIRS), the online
application for submitting cost reports and Attendant Compensation reports.
STAIRS will generate an email to the entity contact, indicating that the
provider's estimated recoupment is available for review. The entity contact is
the provider's authorized representative per the signature authority
designation form applicable to the provider's contract or ownership type. If a
subsequent review by HHSC or audit results in adjustments to the Attendant
Compensation Report or cost reporting, as described in subsection (i) of this
section, that change the amount to be repaid, the provider will be notified by
email to the entity contact that the adjustments and the adjusted amount to be
repaid are available in STAIRS for review. HHSC, or its designee, will recoup
any amount owed from a provider's vendor payment(s) following the date of the
initial or subsequent notification. For the HCS and TxHmL programs, if HHSC, or
its designee, is unable to recoup owed funds in an automated fashion, the
requirements detailed under subsection (dd) of this section apply.
(v) Enrollment limitations. A provider will
not be enrolled in the attendant compensation rate enhancement at a level
higher than the level it achieved on its most recently available audited
Attendant Compensation Report or cost report functioning as an Attendant
Compensation Report. HHSC will notify a provider of its enrollment limitations
after HHSC has completed a financial examination of the report in accordance
with §
355.106 of this title (concerning
Basic Objectives and Criteria for Audit and Desk Review of Cost Reports).
(1) Notification of enrollment limitations.
The enrollment limitation level is indicated in STAIRS. STAIRS will generate an
e-mail to the entity contact, indicating that the provider's enrollment
limitation level is available for review.
(2) Informal reviews and formal appeals. The
filing of a request for an informal review or formal appeal relating to a
provider's most recently available audited Attendant Compensation Report or
cost report functioning as an Attendant Compensation Report under §
355.110 of this title (relating to
Informal Reviews and Formal Appeals) does not stay or delay implementation of
an enrollment limitation applied in accordance with the requirements of this
subsection. If an informal review or formal appeal relating to a provider's
most recently available audited Attendant Compensation Report or cost report
functioning as an Attendant Compensation Report is pending at the time the
enrollment limitation is applied, the result of the informal review or formal
appeal shall be applied to the provider's enrollment retroactively to the
beginning of the rate year to which the enrollment limitation was originally
applied.
(3) New owners after a
contract assignment or change of ownership that is an ownership change from one
legal entity to a different legal entity. Enhancement levels for a new owner
after a contract assignment or change of ownership that is an ownership change
from one legal entity to a different legal entity will be determined in
accordance with subsection (i) of this section. A new owner after a contract
assignment or change of ownership that is an ownership-change from one legal
entity to a different legal entity will not be subject to enrollment
limitations based upon the prior owner's performance.
(4) New providers. A new provider's
enrollment will be determined in accordance with subsection (h) of this
section.
(w) Contract
terminations. For contracted providers or component codes required to submit an
Attendant Compensation Report due to a termination as described in subsection
(i) of this section, HHSC, or its designee, will place a vendor hold on the
payments of the contracted provider until HHSC receives an acceptable Attendant
Compensation Report, as specified in subsection (i) of this section, and funds
identified for recoupment from subsection (t) of this section are repaid to
HHSC or its designee. Informal reviews and formal appeals relating to these
reports are governed by §
355.110 of this title. HHSC, or its
designee, will recoup any amount owed from the provider's vendor payments that
are being held. In cases where funds identified for recoupment cannot be repaid
from the held vendor payments, the responsible entity from subsection (dd) of
this section will be jointly and severally liable for any additional payment
due to HHSC or its designee. Failure to repay the amount due or submit an
acceptable payment plan within 60 days of notification will result in the
recoupment of the owed funds from other HHSC contracts controlled by the
responsible entity, placement of a vendor hold on all HHSC contracts controlled
by the responsible entity, and will bar the responsible entity from enacting
new contracts with HHSC until repayment is made in full. The responsible entity
for these contracts will be notified as described in subsection (u) of this
section prior to the recoupment of owed funds, placement of vendor hold on
additional contracts, and barring of new contracts.
(x) Contract assignments. The following
applies to contract assignments.
(1)
Definitions. The following words and terms have the following meanings when
used in this subsection.
(A) Assignee--A legal
entity that assumes a Community Care contract through a legal assignment of the
contract from the contracting entity as provided in 40 TAC §
49.210(relating to Contractor
Change of Ownership or Legal Entity).
(B) Assignor--A legal entity that assigns its
Community Care contract to another legal entity as provided in 40 TAC §
49.210.
(C) Contract assignment--The transfer of a
contract by one legal entity to another legal entity as provided in 40 TAC
§
49.210.
(i) Type One Contract Assignment--A contract
assignment by which the assignee is an existing Community Care
contract.
(ii) Type Two Contract
Assignment--A contract assignment by which the assignee is a new Community Care
contract.
(2)
Participation after a contract assignment. Participation after a contract
assignment is determined as follows:
(A) Type
One Contract Assignments. For Type One contract assignments, the assignee's
level of participation remains the same while the assignor's level of
participation changes to the assignee's.
(B) Type Two Contract Assignments. For Type
Two contract assignments, the level of participation of the assignor
contract(s) will continue unchanged under the assignee contract(s).
(3) Reporting requirements. The
assignee is responsible for the reporting requirements in subsection (i) of
this section for any reporting period days occurring after the contract
assignment effective date. If the contract assignment occurs during an open
enrollment period as defined in subsection (f) of this section, the owner
recognized by HHSC, or its designee, on the last day of the enrollment period
may request to modify the enrollment status of the contract in accordance with
subsection (g) of this section.
(4)
Vendor holds. For contracted providers required to submit an Attendant
Compensation Report due to contract assignment, as described in subsection (i)
of this section, HHSC, or its designee, will place a vendor hold on the
payments of the existing contracted provider until HHSC receives an acceptable
Attendant Compensation Report, as specified in subsection (i) of this section,
and until funds identified for recoupment from subsection (t) of this section
are repaid to HHSC or its designee. HHSC, or its designee, will recoup any
amount owed from the provider's vendor payments that are being held. In cases
where funds identified for recoupment cannot be repaid from the held vendor
payments, the responsible entity from subsection (dd) of this section will be
jointly and severally liable for any additional payment due to HHSC or its
designee. Failure to repay the amount due within 60 days of notification will
result in the recoupment of the owed funds from other HHSC contracts controlled
by the responsible entity, placement of a vendor hold on all HHSC contracts
controlled by the responsible entity, and will bar the responsible entity from
enacting new contracts with HHSC until repayment is made in full. The
responsible entity for these contracts will be notified, as described in
subsection (u) of this section, prior to the recoupment of owed funds,
placement of vendor hold on additional contracts, and barring of new
contract.
(y) Voluntary
withdrawal. Participating contracts or component codes wishing to withdraw from
the attendant compensation rate enhancement must notify HHSC in writing by
certified mail and the request must be signed by an authorized representative
as designated per the HHSC signature authority designation form applicable to
the provider's contract or ownership type. The requests will be effective the
first of the month following the receipt of the request. Contracts or component
codes voluntarily withdrawing must remain nonparticipants for the remainder of
the rate year. Providers whose contracts are participating as part of a
component code must request withdrawal of all the contracts in the component
code.
(z) Adjusting attendant
compensation requirements. Providers that determine that they will not be able
to meet their attendant compensation requirements may request to reduce their
attendant compensation requirements and associated enhancement payment to a
lower participation level by submitting a written request to HHSC by certified
mail, and the request must be signed by an authorized representative as
designated per the HHSC signature authority designation form applicable to the
provider's contract or ownership type. These requests will be effective the
first of the month following the receipt of the request. Providers whose
contracts are participating as part of a component code must request the same
reduction for all of the contracts in the component code.
(aa) All other rate components. All other
rate components will continue to be calculated as specified in the
program-specific reimbursement methodology and will be uniform for all
providers.
(bb) Failure to document
spending. Undocumented attendant compensation expenses will be disallowed and
will not be used in the determination of the attendant compensation spending
per unit of service in subsection (t) of this section.
(cc) Appeals. Subject matter of informal
reviews and formal appeals is limited as per §
355.110 of this title.
(dd) Responsible entities. The contracted
provider, owner, or legal entity which received the attendant compensation rate
enhancement is responsible for the repayment of the recoupment amount.
(1) HCS and TxHmL providers required to repay
enhancement funds will be jointly and severally liable for any
repayment.
(2) Failure to repay the
amount due or submit an acceptable payment plan within 60 days of notification
will result in placement of a vendor hold on all HHSC contracts controlled by
the responsible entity.
(ee) Manual Repayment. For the HCS and TxHmL
programs, if HHSC, or its designee, is unable to recoup owed funds using an
automated system, providers will be required to repay some or all of the
enhancement funds to be recouped through a check, money order, or other
non-automated method. Providers will be required to submit the required
repayment amount within 60 days of notification.
(ff) Determination of compliance with
spending requirements in the aggregate.
(1)
Definitions. The following words and terms have the following meanings when
used in this subsection.
(A) Commonly owned
corporations--two or more corporations where five or fewer identical persons
who are individuals, estates, or trusts own greater than 50 percent of the
total voting power in each corporation.
(B) Entity--a parent company, sole member,
individual, limited partnership, or group of limited partnerships controlled by
the same general partner.
(C)
Combined entity--one or more commonly owned corporations and one or more
limited partnerships where the general partner is controlled by the same
identical persons as the commonly owned corporation(s).
(D) Control--greater than 50 percent
ownership by the entity.
(2) Aggregation. For an entity, for two or
more commonly owned corporations, or for a combined entity that controls more
than one participating contract or component code in a program (with HCS and
TxHmL considered a single program), compliance with the spending requirements
detailed in subsection (t) of this section can be determined in the aggregate
for all participating contracts or component codes in the program controlled by
the entity, commonly owned corporations, or combined entity at the end of the
rate year, the effective date of the change of ownership of its last
participating contract or component code in the program, or the effective date
of the termination of its last participating contract or component code in the
program rather than requiring each contract or component code to meet its
spending requirement individually. Corporations that do not meet the
definitions under paragraph (1)(A) - (C) of this subsection are not eligible
for aggregation to meet spending requirements.
(A) Aggregation Request. To exercise
aggregation, the entity, combined entity, or commonly owned corporations must
submit an aggregation request in a manner prescribed by HHSC at the time each
Attendant Compensation Report or cost report is submitted. In limited
partnerships in which the same single general partner controls all the limited
partnerships, the single general partner must make this request. Other such
aggregation requests will be reviewed on a case-by-case basis.
(B) Frequency of Aggregation Requests. The
entity, combined entity, or commonly owned corporations must submit a separate
request for aggregation for each reporting period.
(C) Ownership changes or terminations. For
the ICF/IID, HCS, TxHmL, DAHS, RC, and DBMD programs, contracts or component
codes that change ownership or terminate effective after the end of the
applicable reporting period, but prior to the determination of compliance with
spending requirements as per subsection (t) of this section, are excluded from
all aggregate spending calculations. These contracts' or component codes'
compliance with spending requirements will be determined on an individual
basis, and the costs and revenues will not be included in the aggregate
spending calculation.
(gg) Conditions of participation for ICF/IID
day habilitation and HCS/TxHmL individualized skills and socialization
services. The following conditions of participation apply to each ICF/IID, HCS,
and TxHmL provider specifying its wish to have day habilitation services or
individualized skills and socialization services participate in the attendant
compensation rate enhancement.
(1) A provider
who provides day habilitation or individualized skills and socialization
services in-house or who contracts with a related party to provide day
habilitation or individualized skills and socialization services will report
job trainer and job coach compensation and hours on the required cost report
items (e.g., hours, salaries and wages, payroll taxes, employee
benefits/insurance/workers' compensation, contract labor costs, and personal
vehicle mileage reimbursement). Day habilitation costs cannot be combined and
reported in one cost report item.
(2) A provider who contracts with a
non-related party to provide day habilitation or individualized skills and
socialization services will report its payments to the contractor in a single
cost report item as directed in the instructions for the cost report or
Attendant Compensation Report as described in subsection (i)(3) and (4) of this
section. HHSC will allocate 50 percent of reported payments to the attendant
compensation cost area for inclusion with other allowable day habilitation or
individualized skills and socialization services attendant costs in order to
determine the total attendant compensation spending for day habilitation or
individualized skills and socialization services as described in subsection (t)
of this section.
(3) The provider
must ensure access to any and all records necessary to verify information
submitted to HHSC on Attendant Compensation Reports and cost reports
functioning as an Attendant Compensation Report.
(4) HHSC will require each ICF/IID, HCS, and
TxHmL provider specifying their wish to have day habilitation or individualized
skills and socialization services participate in the attendant compensation
rate enhancement to certify during the enrollment process that it will comply
with the requirements of paragraphs (1) - (3) of this subsection.
(hh) New contracts within existing
component codes. For ICF/IID, HCS, and TxHmL, new contracts within existing
component codes will be assigned a level of participation equal to the existing
component code's level of participation effective on the start date of the
contract as recognized by HHSC or its designee.
(ii) Disclaimer. Nothing in these rules
should be construed as preventing providers from compensating attendants at a
level above that funded by the enhanced attendant compensation rate.
