Texas Health and Human Services Digest: November 4, 2020

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From HHSC: While every effort has been made to offer an accurate and current listing of meeting agendas and events on this calendar, the information has been compiled from a variety of sources and is subject to change without notice to the user.

November 4, 2020

November 5, 2020

November 6, 2020

November 9, 2020

November 10, 2020

November 12, 2020

November 13, 2020

November 16, 2020

November 17, 2020

November 18, 2020

Proposed Rules
Formal Comments via the Texas Register
To let the public know about a rulemaking action – such as new, amended or repealed rules – HHS publishes a notice in the Texas Register, a publication of the Texas Secretary of State. Interested parties then can review and comment on the proposed rule. The Secretary of State publishes a new issue of the Texas Register each Friday.

The Administrative Procedure Act (Texas Government Code, Chapter 2001) requires the notice published in the Texas Register to include a brief explanation of the proposed rule and a request for comments from any interested person. The notice also includes instructions for submitting comments regarding the rule to the agency, including the date by which comments must be submitted. Agencies must give interested persons “a reasonable opportunity” to submit comments. The public comment period begins on the day after the notice of a proposed rule is published in the Texas Register and lasts for a minimum of 30 calendar days.

Below is a list of proposed rules that have been published in the Texas Register. The proposed rules that are published in the Texas Register are open for public comment until the end of the comment period.

TitleProject No., DescriptionContactComment End Date
Repeal of Title 25, Chapter 415, Subchapter C, Use and Maintenance of Department of State Health Services/Department of Aging and Disability Services Drug Formulary#19R052: HHSC Psychiatric Drug FormularyHHS Health and Specialty Care11/23/20
Repeal of Title 40, Chapter 5, Subchapter C, Use and Maintenance of Drug Formulary#19R052: HHSC Psychiatric Drug FormularyHHS Health and Specialty Care11/23/20
New Title 26, Chapter 306, Subchapter G, Use and Maintenance of the Health and Human Services Commission Psychiatric Drug Formulary, Sections 306.351 – 306.360#19R052: HHSC Psychiatric Drug FormularyHHS Health and Specialty Care11/23/20
Title 1, Chapter 355, Subchapter B, Establishment and Adjustment of Reimbursement Rates for Medicaid, Section 355.205#21R015: Rate Increase Attestation Process COVID-19HHS Provider Finance Department11/23/20
Repeal of Title 1, Chapter 383, Interstate Compact on Mental Health and Mental Retardation#19R065: Interstate Compact CoordinationHHS Health and Specialty Care11/16/20
New Title 26, Chapter 903, Interstate Compact on Mental Health and Intellectual and Developmental Disabilities#19R065: Interstate Compact CoordinationHHS Health and Specialty Care11/16/20
Title 1, Chapter 354, Subchapter A, Division 1, Section 354.1003, Time Limits for Submitted Claims#20R006: Claims Payment Deadlines ExceptionsHHS Rules Coordination Office11/16/20
Title 25, Chapter 40, Subchapter D, concerning Maintenance and Administration of Asthma Medication#20R019: Asthma MedicationDSHS School Health Program11/16/20
Title 25, Chapter 40, Subchapters B and C, concerning Epinephrine Auto-Injector Policies in Certain Entities and Youth Facilities#20R018: Epinephrine Policies in Certain Entities and Youth FacilitiesDSHS School Health Program11/16/20

Draft Rules Informal Comments

Informal opportunities to comment occur before a rule is published in the Texas Register. HHS staff may solicit informal public and stakeholder input by:

  • inviting stakeholders to submit comments on potential rule changes during rule development.
  • sharing a draft rule with stakeholders for review.
  • using existing HHS advisory committees to comment on rules.

The following are draft rules on which HHS is accepting informal public or stakeholder input. All rules are posted in MS Word format unless otherwise noted.

TitleProject No.ContactComment Start DateComment End Date
Title 1, Chapter 351, Section 351.805, State Medicaid Managed Care Advisory Committee#20R108HHS Medicaid/CHIP Services11/5/2011/19/20
Title 1, Chapter 354, Subchapter F, Division 8, Drug Utilization Review Board#21R007John Pepin10/30/2011/13/20
Title 26, Chapter 561, Employee Misconduct Registry (EMR)#19R045HHS Policy, Rules and Training10/30/2011/13/20

QP Thresholds are Increasing in 2021; You May Need to Participate in MIPS Next Year. Under federal law, Qualifying Alternative Payment Model (APM) Participant (QP) thresholds are increasing beginning on January 1, 2021. If you were a QP for the 2020 performance year, you may not necessarily receive QP status for the 2021 performance year. Depending on your status in 2021, you may be required to participate in the Merit-based Incentive Payment System (MIPS) even if you haven’t in previous years.

As a reminder, if you qualify as a QP, you may be eligible for the 5% APM incentive payment and be exempt from participating in MIPS.

The Centers for Medicare & Medicaid Services (CMS) has posted a 2021 QP Quick Start Guide and 2021 MIPS Eligibility Decision Tree to provide more information on QP status and to help clinicians understand if they will need to participate in the MIPS.

What are the Thresholds for 2021?
For QP status:

  • The payment amount threshold is increasing from 50% in 2020 to 75% in 2021.
  • The patient count threshold is increasing from 35% in 2020 to 50% in 2021.

For Partial QP status:

  • The payment amount threshold is increasing from 40% in 2020 to 50% in 2021.
  • The patient count threshold is increasing from 25% in 2020 to 35% in 2021.

If you qualify as a Partial QP, you will be able to choose whether or not you want to participate in MIPS, but you will not be eligible for the 5% incentive payment.

How do I know if I am a QP in 2021?
CMS will use three snapshot dates—March 31, June 30, and August 31, 2021, to review data to make QP determinations. CMS will make determinations approximately 4 months after the end of each snapshot date, at which point you will be able to check the Quality Payment Program Participation Status Tool for updates to your APM status.

How do I know if I’m required to participate in MIPS in 2021?
If you are MIPS eligible and not determined to be a QP or a Partial QP, you will be required to participate in MIPS and will receive a MIPS Final Score and payment adjustment. To learn more about MIPS, visit qpp.cms.gov.

For more information

CMS Open Payments.

VPL and PNPPL Now Available!
The Program Year 2021 Validated Physician List (VPL) and Preliminary Non-Physician Practitioner List (PNPPL) are now available. The purpose of these documents is to help applicable manufacturers and applicable group purchasing organizations collect and validate covered recipient Physician and Non-Physician Practitioner and Principal Investigator identifying information before reporting to the Open Payments system. These lists can be used to fill in missing information for a covered recipient associated with a payment record or to corroborate information the Reporting Entity has already collected.

Please note that the VPL and PNPPL are not a complete list of individuals who are considered covered recipients under the Open Payments program. An individual’s absence from these lists does not mean that payments to them do not have to be reported. Payments associated with physicians or non-physician practitioners who meet the definition of a covered recipient in the Open Payments Final Rule must be reported to CMS regardless of whether they are listed in the VPL or PNPPL.

These files can be accessed by logging into the Open Payments System. Select the “Submissions” tab and view the documents on the right-hand side of the page.

Refresh of Open Payments Data – Dates to Remember
In January 2021, the Centers for Medicare & Medicaid Services (CMS) will publish a refresh of the Open Payments data. In preparation for the refresh, applicable manufacturers and group purchasing organizations (GPOs) are reminded that Sunday, November 15, 2020 is the cut-off date to make corrections to undisputed records and to remove any previous requests for delay in publication in order for those changes to be reflected in the January data refresh. Corrections to records in response to active disputes can be made through December 31, 2020 in order to be included in the January data refresh.

For more information about how the data will be displayed publicly in January 2021, please view the Quick Reference Guide for Review and Dispute Timing and Data.

Additional information can be found on the Dispute and Correction page on the Open Payments website.

For assistance with other aspects of the Open Payments system, please visit the Resources page on the Open Payments website.

New Reporting Requirements – Data Collection for Program Year 2021
As a reminder, the following changes to Open Payments reporting requirements go into effect beginning January 1, 2021:

  • The definition of a “covered recipient” is expanded to include five additional provider types. The added provider types are: Physician Assistants, Nurse Practitioners, Clinical Nurse Specialists, Certified Registered Nurse Anesthetists and Anesthesiologist Assistants, and Certified Nurse Midwives.
  • Standardization of data on reported products by adding reporting requirements for the ‘device identifier’ component of the unique device identifier for devices and medical supplies.
  • The Nature of Payment categories will be updated to include three new categories: debt forgiveness, long-term medical supply or device loan, and acquisitions. In addition, the two categories related to education programs will be combined into one.

The changes listed above apply to information collected on or after January 1, 2021 and reported to CMS in 2022 and thereafter.

CMS has made multiple resources available on its Open Payments website to help you prepare for the new reporting requirements. Visit the Program Expansion Page for Reporting Entities to learn more.

Questions – Contact Live Help Desk
Submit questions to the Help Desk via email at openpayments@cms.hhs.gov or by calling  1-855-326-8366, (TTY Line: 1-844-649-2766) Monday through Friday, from 9:00 a.m. to 5:00 p.m. (ET), excluding Federal holidays.

The Help Desk refers media inquiries to CMS’ Press Office for response.

Neighborhood conditions associated with children’s cognitive function. A study published today in JAMA Network Open shows that children from poorer neighborhoods perform less well on a range of cognitive functions, such as verbal ability, reading skills, memory, and attention, and have smaller brain volumes in key cognitive regions compared to those from wealthier neighborhoods.

While multiple studies have shown that household socioeconomic status affects a child’s cognitive development, less is known about the effect of the broader neighborhood context. By revealing a role that the neighborhood environment may play in shaping brain development,  research findings can inform interventions aimed at improving outcomes for children from disadvantaged backgrounds. The study is funded by the National Institute on Drug Abuse, and nine other institutes, centers, and offices that are part of the National Institutes of Health.

The researchers analyzed data from the Adolescent Brain Cognitive Development (ABCD) Study(link is external), which focuses on how environmental and biological factors influence adolescent development. The team looked at data from brain imaging and neurocognitive testing from 11,875 9- and 10-year-old children (48% female) from 21 sites within the United States, largely reflecting urban and suburban areas.

The researchers found that youth living in high poverty neighborhoods had lower volumes of certain brain regions, partially explaining the possible relationship between high neighborhood poverty and lower scores on cognitive tests. The affected areas of the brain were in the prefrontal cortex and the hippocampus, areas known to be involved in language and memory. The differences in volume were significant even after the researchers adjusted for the effects of household income. For every unit increase in neighborhood poverty, children scored 3.22 points lower on cognitive testing, even when accounting for household income.

While other studies have found poorer school and cognitive performance among children raised in impoverished environments, this study shines a light on the specific importance of the neighborhood context in a child’s development, regardless of that child’s household income. The study’s findings suggest that policies that address uneven distribution of resources among neighborhoods may help lessen imbalances in cognitive performance. Additional research is needed to identify which neighborhood characteristics, such as school funding or environmental pollution, may influence children’s brain and cognitive development.

Read the release.

HHS Proposes Unprecedented Regulatory Reform through Retrospective Review. The Department of Health and Human Services issued a notice of proposed rulemaking requiring the Department to assess its regulations every ten years to determine whether they are subject to review under the Regulatory Flexibility Act (RFA), which requires regular review of certain significant regulations. If a given regulation is subject to the RFA, the Department must review the regulation every ten years to determine whether the regulation is still needed and whether it is having appropriate impacts. Regulations will expire if the Department does not assess and (if required) review them in a timely manner.

Under the proposed rule, any regulation issued by HHS (with certain exceptions) will cease to be effective ten years after it is issued, unless HHS performs a plenary assessment of the regulation and a more detailed review of those regulations that have a significant economic impact upon a substantial number of small entities.  

That is, all HHS regulations, with certain exceptions (detailed below) will be subject to a two-step review: 1) assessing whether they have a significant economic impact on a substantial number of small entities, the standard set out under the RFA; and, if it qualifies for review under the RFA, 2) a more detailed review that will consider, as prescribed in the RFA, (i) the continued need for the rule, (ii) complaints about it, (iii) the rule’s complexity, (iv) the extent to which it duplicates or conflicts with other rules, and (v) whether technological, economic, and legal changes favor amending or rescinding the rule.

Retrospective review of the costs and benefits of federal regulations has long been a goal of Presidents and regulatory experts across the political spectrum.

When agencies impose regulations, they make projections about the regulation’s impact on the public. Once a rule has been in place, agencies should test those projections and see what real-world impact the regulation is having, and amend or rescind if appropriate.  This proposed rule would incentivize HHS to conduct these performance reviews of its regulations to ensure that rules are delivering the benefits projected in view of the best available science, data, and evidence. An artificial-intelligence-driven data analysis of HHS regulations found that 85 percent of Department regulations created before 1990 have not been edited.

Certain regulations are exempt: regulations that are jointly issued with other agencies, regulations that legally cannot be rescinded, and regulations issued with respect to a military or foreign affairs function or addressed solely to internal management or personnel matters (two categories exempt from standard rulemaking requirements under the Administrative Procedure Act). Regulations that affect the regulations of other agencies will be reviewed in conjunction with those agencies.

This proposed rule seeks to increase transparency, public participation, and democratic accountability. As part of the review process, the public can submit comments on the impacts of regulations.

The proposed rule will be subject to a public comment period. There will also be a public hearing on this proposed rule. Depending on the public comments, HHS could finalize a version of this rule after the public comment period concludes.

Read the proposed rule here

Read the full release.

EVV Policy Updates Effective Nov. 1. HHSC has revised the Electronic Verification Methods Policy (PDF) in the Policy section of the EVV webpage. The policy:

  • Applies to program providers, financial management services agencies, and consumer directed services employers.
  • Incorporates the Mobile Application Policy, dated April 1, 2019 and the Allowable Phone Identification Policy, dated September 1, 2019.
  • Allows a service attendant or CDS employee to use multiple clock in and clock out methods for a member.
  • Provides information on how to document non-EVV relevant time associated with a visit.
  • Includes CDS employer and FMSA functions.

Email HHSC EVV with your questions.

November 12 CLASS and DBMD Quarterly Webinar. HHSC will be providing ongoing opportunities for CLASS and DBMD providers and FMSAs to hear about recent program updates, Electronic Visit Verification (EVV) information and to ask questions relating to the topics presented.

CLASS and DBMD Quarterly Webinar
November 12
1:30 to 3 p.m.
Register for the webinar here.
Topics include:

  • Program information and updates
  • IL 20-46
  • Corrective Action Plans (CAPs) and recoupments
  • EVV for FMSAs:
    • CDS and the Cures Act
    • CDS Employer’s Selection for EVV Responsibilities
    • IL 20-33
  • EVV General Information
    • Websites
    • Updates
    • Reports
    • Overview of EVV maintenance

Email questions about webinar to CLASSPolicy@hhsc.state.tx.us or DBMDPolicy@hhsc.state.tx.us.

HCS and TxHmL Program Providers Required to Select an EVV Vendor. Effective Dec. 1, HHSC will require HCS and TxHmL program providers to use EVV for the following services:

  • Community First Choice Personal Assistance Services/Habilitation (CFC PAS/HAB)
  • In-Home Respite
  • In-Home Day Habilitation (Own Home or Family Home only)

HCS and TxHmL program providers are required to select an EVV vendor and complete EVV training to meet the Dec.1 deadlines. The requirement to select an EVV vendor and complete training applies to all contracted HCS and TxHmL program providers.

Beginning Dec. 1, 2020, service claims for CFC PAS/HAB will be denied by the claims adjudication system and not paid by HHSC if the program provider has not onboarded with an EVV vendor.

Read IL 20-07 (PDF) for more information about selecting an EVV vendor and completing training to be EVV-compliant by the Dec. 1 deadline.

Email EVV if you have questions about EVV requirements.

EVV Portal and Training Updates. On Oct. 29, Texas Medicaid & Healthcare Partnership made improvements to the Electronic Visit Verification Portal, posted a new demonstration of the September and October EVV Portal changes, and made training material updates.

For more information, read the TMHP article EVV Portal Improvements and Training Updates.

For questions, email TMHP.evv@tmhp.com