Current through Reg. 49, No. 38; September 20, 2024
(a) Introduction.
The Texas Health and Human Services Commission (HHSC) uses the methodology
described in this section to establish retention payments for Home and
Community-Based Services (HCBS) under HHSC's spending plan pursuant to section
9817 of the American Rescue Plan Act.
(b) Definitions. The following words and
terms, when used in this section, have the following meanings, unless the
context clearly indicates otherwise:
(1)
Direct Care staff--
(A) A provider, or an
employer in the consumer directed services (CDS) option, who provides the
following services, as described in Title 40 Texas Administrative Code (TAC)
§49.101 (relating to Application):
(i)
Community Attendant Services program services;
(ii) Primary Home Care program
services;
(iii) day activity and
health services;
(iv) in the
Community Living Assistance and Support Services Program:
(I) community first choice personal
assistance services/habilitation (CFC PAS/HAB);
(II) habilitation (transportation);
(III) supported employment;
(IV) in-home respite;
(V) nursing services; or
(VI) specialized nursing services;
(v) in the Deaf-Blind Multiple
Disabilities Program:
(I) CFC
PAS/HAB;
(II) residential
habilitation (transportation);
(III) in-home respite;
(IV) licensed assisted living;
(V) licensed home health assisted
living;
(VI) supported
employment;
(VII) day
habilitation;
(VIII) nursing
services; or
(IX) specialized
nursing services;
(vi)
in the Home and Community-Based Services Program:
(I) CFC PAS/ HAB;
(II) supported home living
(transportation);
(III) supervised
living;
(IV) residential support
services;
(V) day
habilitation;
(VI) supported
employment;
(VII) in-home
respite;
(VIII) nursing services;
or
(IX) specialized nursing
services; and
(vii) in
the Texas Home Living Program:
(I) CFC
PAS/HAB;
(II) community support
services (transportation);
(III)
day habilitation;
(IV) supported
employment;
(V) in-home
respite;
(VI) nursing services;
or
(VII) specialized nursing
services.
(B)
A provider or employee or subcontractor of a provider who provides the
following services in the Home and Community-Based Services--Adult Mental
Health (HCBS-AMH) Program, as described in 26 TAC §
RSA
307.51(relating to Purpose and Application):
(i) supervised living;
(ii) supported home living; or
(iii) nursing services.
(C) An employee or subcontractor of a
provider, or an employee of an employer in the CDS option who provides:
(i) personal care services, as described in
Chapter 363, Subchapter F of this title (relating to Personal Care Services);
or
(ii) CFC habilitation (CFC HAB)
or CFC personal assistance services (CFC PAS), as described in Chapter 354,
Subchapter A, Division 27 of this title (relating to Community First
Choice).
(D) A provider
or an employer in the CDS option who provides:
(i) in the STAR+PLUS program and STAR+PLUS
HCBS program:
(I) assisted living;
(II) CFC PAS;
(III) CFC HAB;
(IV) day activity and health
services;
(V) in-home respite
care;
(VI) personal assistance
services;
(VII) supported
employment;
(VIII) protective
supervision;
(IX) nursing services;
or
(X) specialized nursing
services;
(ii) in the
STAR Health program and Medically Dependent Children Program (MDCP):
(I) day activity and health
services;
(II) CFC PAS;
(III) CFC HAB;
(IV) flexible family support;
(V) in-home respite;
(VI) personal care services;
(VII) nursing services; or
(VIII) specialized nursing services;
and
(iii) in the STAR
Kids program and MDCP:
(I) CFC PAS;
(II) CFC HAB;
(III) personal care services;
(IV) day activity and health
services;
(V) flexible family
support services;
(VI) in-home
respite;
(VII) nursing services;
or
(VIII) specialized nursing
services.
(2) Managed care organization (MCO)--Has the
meaning assigned in §
RSA 353.2 of this
title (relating to Definitions).
(3) Provider--Refers to an HHSC contractor as
defined in § 355.7051(a)(1) of this title (relating to Base Wage for a
Personal Attendant) and provider as defined in §
RSA 353.2 of this
title.
(c) Eligibility.
To receive and maintain retention payments from HHSC under this section:
(1) A provider must be actively billing
Medicaid services.
(2) A provider
must agree to use at least 90 percent of payments made under this section for
recruitment and retention efforts for direct care staff delivering HCBS
services as defined in subsection (b) of this section. Payments made under this
section can include financial compensation directed toward direct care staff,
including lump-sum bonuses, retention bonuses, and paid time off to receive a
COVID-19 vaccination or to isolate after receiving a positive COVID-19 test.
Funds under this section can be used to pay payroll and unemployment taxes and
workers' compensation necessary to implement the financial compensation for
HCBS direct care staff.
(3) A
provider must agree not to use the payments made under this section to increase
hourly wages paid to direct care staff on an ongoing basis and to limit use of
the funds to types of compensation that will not result in future reductions to
hourly wages when the payments are discontinued.
(4) A provider must submit two required
reports regarding use of funds made under this section in a manner prescribed
by HHSC. Required reporting includes furnishing data to document vacancy rates
in direct care staff positions and direct care staff retention percentage and
other indicators related to a provider's use of the funds made under this
section as defined by HHSC.
(5)
HHSC must receive approval from Centers for Medicare & Medicaid Services
(CMS) for the provider type or specific service to be paid under this
section.
(d) Attestation
of Agreement. A provider must submit an electronic attestation of agreement to
comply with subsection (c)(2) - (c)(3) of this section as specified by HHSC.
HHSC will provide notice at least thirty calendar days prior to the attestation
deadline.
(e) Required reporting. A
provider must submit required reporting to comply with subsection (c)(4) of
this section. The required reports will be due on dates specified by HHSC. HHSC
will provide at least thirty calendar day notice prior to the required deadline
for each report.
(f) Reconciliation
process. HHSC uses the methodology in this subsection to recoup the payments
made under this section if a provider fails to submit the attestation of
agreement under subsection (d) or required reporting under subsection (e) of
this section.
(1) HHSC will reduce
reimbursement rates for any claim for services to the amount that would have
been paid to the provider absent the HCBS retention payment rate
increase.
(2) The provider's claims
will be reprocessed at the lower reimbursement rate under paragraph (1) of this
subsection and an accounts receivable will be established.
(3) The provider will be paid on a normal per
claim basis after the equivalent amount of the account receivable has been
collected by HHSC, or its designee.
(4) After 270 days from the date of the
establishment of the account receivable under paragraph (2) of this subsection,
HHSC will recoup any overpayments owed under paragraph (1) of this subsection
by demanding immediate repayment of any outstanding amount.
(g) Overpayment.
(1) If payments under this section result in
an overpayment to a provider, HHSC, or its designee, may recoup an amount
equivalent to the overpayment.
(2)
Payments made under this section may be subject to any adjustments for payments
made in error or due to fraud, including, without limitation, adjustments made
under the Texas Administrative Code, the Code of Federal Regulations, and state
and federal statutes. HHSC, or its designee, may recoup an amount equal to any
such adjustments from the providers in question. This section may not be
construed to limit the independent authority of another federal or state agency
or organization to recover from the provider for a payment made due to
fraud.
(h) Disallowance
of federal funds. If payments under this section are disallowed by CMS, HHSC
may recoup the amount of the disallowance from providers that participated in
the program associated with the disallowance. If the recoupment from a provider
for such a disallowance results in a subsequent disallowance, HHSC will recoup
the amount of that subsequent disallowance from the same entity.
(i) Duration. Payments under this section
will be made for services delivered between March 1, 2022, and August 31, 2022,
or as specified by HHSC.
(j) A
provider that has a contract for financial management services (FMS) must
ensure that an employer in the CDS option, or designated representative, uses
payments made under this section as defined in subsection (c)(2) - (c)(3) of
this section.
(k) An MCO must
require an MCO contractor, other than an MCO contractor described in subsection
(j) of this section, to use payments made under this section as defined in
subsection (c) of this section.
(l)
An MCO must require that an MCO contractor that has a contract for FMS ensures
that an employer in the CDS option or designated representative uses payments
made under this section as defined in subsection (c)(2) - (c)(3) of this
section.
(m) Payment methodology.
HHSC calculates payments made under this section in the following manner:
(1) Total approved funding pool is divided
proportionally based on historical claims paid from all HCBS services to
calculate an anticipated funding amount for each service.
(2) Anticipated funding amount for each HCBS
service is divided by projected utilization for the program period to calculate
a per unit payment factor for each service.
(3) Payments under this section will be
distributed on claims for services delivered during the duration specified in
subsection (i) of this section.
