TO: DATE: Health and Human Services Commission Executive Council February 17, 2022 FROM: Dana Williamson, Director, Policy Development Support AGENDA ITEM: 2.c.ii SUBJECT: Medicaid Hospice Program BACKGROUND: ☒ Federal ☐ Legislative ☒ Other: Program Initiative The Texas Health and Human Services Commission proposes to repeal rules in Texas Administrative Code, Title 40 (40 TAC), Chapter 30, relating to Medicaid Hospice Program and relocate the rules to Title 26 (26 TAC), Chapter 266, relating to Medicaid Hospice Program, as part of the consolidation of HHSC’s rules in 26 TAC. Proposed new Chapter 266 will make HHSC’s Medicaid Hospice Program rules consistent with the federal Medicare hospice regulations, add definitions used in the chapter, include details of utilization review policy requirements, such as describing what the individualized plan of care must include, types of required documentation that a hospice must maintain, and specifics regarding the certification of terminal illness, and update standards to protect the health and safety of individuals receiving hospice care. The proposed new rules in Chapter 266 incorporate the federal rate changes in Title 42, Code of Federal Regulations (42 CFR), Part 418, Subpart G, Payment for Hospice Care, that HHSC implemented on January 1, 2016. These changes allow providers to be reimbursed at a higher rate during the first 60 days of routine home care and the final seven days. Additionally, the proposed new rules create an annual aggregate cap and align it with the federal fiscal year. The proposed new rules also align hospice election periods to those in 42 CFR, Part 418, Subpart B, Duration of hospice care coverage – Election periods. The proposed new rules also include hospice documentation requirements, recoupment of payments, and the option to request an informal review of and appeal proposed recoupment. The proposed new rules in Chapter 266 do not include the rules proposed for repeal in 40 TAC §30.2, concerning Purpose; §30.92, concerning Minimum Data Set Assessment; and §30.100, concerning Additional Requirements, because HHSC determined the rules to be either unnecessary or no longer applicable. 1 The proposed new rules also update agency names, replace references to the “initial period of care” with references to the “initial election period,” and replace references to “recipient” or “beneficiary” with references to “individual.” ISSUES AND ALTERNATIVES: There are no identified issues or concerns with the proposed rules and repeals. STAKEHOLDER INVOLVEMENT: HHSC engaged stakeholders by meeting with the Texas New Mexico Hospice Organization, the Texas Non-Profit Hospice Alliance, and the Texas Association for Home Care and Hospice to discuss the proposed new rules. The draft rules were posted on the HHS Rulemaking webpage for informal public comment from March 29, 2021, through April 12, 2021. HHSC received the following three comments from the Texas New Mexico Hospice Organization. One comment was a request that the rules allow a Medicaid hospice provider to provide services using telehealth or telemedicine as appropriate, not just during a public health emergency to replace face-to-face reassessments. HHSC did not make changes in response to this comment. These rules do not prohibit the delivery of hospice services via telemedicine or telehealth other than for the reassessment. HHSC believes requiring face-to-face reassessments is a best practice for physicians and advanced practice registered nurses reassessing hospice eligibility. Another comment was a request for HHSC to reinsert language stating that continuous home care may be provided for five consecutive days. HHSC added this language at the beginning of the proposed new §266.211. Another comment expressed concern about oral certifications of terminal illness, stating that the state does not permit oral certifications while the federal government does. Proposed new §266.203 does permit an oral certification for the initial election period if the hospice does not obtain a written certification within two days after the initial election period begins. HHSC did not make changes in response to this comment. FISCAL IMPACT: ☒ None SERVICES IMPACT STATEMENT: Individuals receiving care in the Medicaid Hospice Program will benefit from hospice providers having access to one set of clear and detailed requirements for providing Medicaid hospice care that align Medicaid hospice rules with the federal