Health Care Advocate: Oct. 27, 2022


Table of Contents

Advocacy News 
If you have questions or comments about the articles below, please contact [email protected].

Senator Perry Affirms Support for THA Priorities at Fall Town Hall

At the first installment of THA’s Fall Town Hall series on Monday, state Sen. Charles Perry (R-Lubbock) talked legislative priorities and available dollars entering the 2023 session of the Texas Legislature, and affirmed his support for a number of THA’s most pressing priorities for the upcoming session.

Senator Perry, THA’s special guest at the virtual town hall, addressed the workforce shortage hamstringing hospitals in Texas and all over the country, as well as the need for greater access to behavioral health – both issues on which THA plans to advocate for legislative action once the Legislature convenes in early January. He noted that nursing programs need development all over the state, highlighting the need “to figure out ways to get those nurses through the system, quicker and cheaper.” In 2021, Texas nursing schools turned away more than 15,000 qualified applicants, primarily due to lack of nurse faculty and insufficient clinical education capacity. THA is looking for increased state funding for professional training, retention and loan repayment programs for physicians, nurses and behavioral health and allied health professionals.

On behavioral health, senator Perry confirmed he would align with THA in advocating for Texas to receive a waiver from the federal “institutions for mental disease” exclusion. That federal rule disallows Medicaid coverage for most adult inpatient behavioral health care beyond a 15-day stay.

Noting the healthy $27 billion surplus that lawmakers will have to spend going into the 2023 session, senator Perry cautioned that the state’s constitutional spending limit prevents the legislature from spending it all in the next budget, and that lawmakers will need some of the surplus for subsequent sessions. But one of his desired uses for the extra money will be pay raises for the state’s attendant care population: “They’re the best investment we can make; they’re keeping 300,000 people out of the nursing homes,” he said. Senator Perry’s own policy priorities will include infrastructure, energy and rural broadband. His long-standing support for rural hospitals includes filing or supporting several past measures that benefit rural facilities, such as Senate Bill 8 from the third 2021 special session, which allocated $75 million in targeted federal stimulus funds to rural hospitals.

Town hall attendees also received policy, legal and regulatory updates from THA staff. Bill prefiling for session begins on Nov. 14, just six days after the general election. THA anticipates tracking approximately 1,500 bills during the course of the session.

The next THA Town Hall is scheduled for Tuesday, Nov. 1, from 9 to 10:30 a.m. CST, with special guest presenter Comptroller Glenn Hegar. The schedule for the rest of the series, with guest presenting lawmakers (times CST):

  • Wednesday, Nov. 30, 11:30 a.m. to 1 p.m., state Sen. Juan “Chuy” Hinojosa (D-McAllen); and
  • Thursday, Dec. 1, 3 to 4:30 p.m., U.S. Rep. Michael Burgess, MD (R-Lewisville).

You can register here for any of the town halls. (Jennifer Banda, J.D./Carrie Williams)

THA Examining Texas Impact of National Pediatric Bed Shortage

THA is monitoring the pediatric bed situation among Texas hospitals following nationwide reports of bed shortages attributed to respiratory syncytial virus (RSV). Last week, according to multiple reports, U.S. Department of Health and Human Services data showed more than 70% of pediatric beds across the country are full, with anecdotal reports largely pinning the shortage on widespread RSV infections. Influenza cases are contributing to pediatric hospitalizations as well.

THA is in contact with member hospitals and keeping tabs on affected facilities’ efforts to respond to surges in bed capacity. Collecting these reports helps THA alert the Texas Department of State Health Services, the Texas Department of Emergency Management and partners in legislative leadership to the situation on the ground. Contact Carrie Kroll if a recent sizable increase in pediatric admissions is putting a strain on your staff and operations. (Carrie Kroll/Cesar Lopez, J.D./Erika Ramirez)

Federal Agenda: THA Prioritizing Rural Hospital Protections, Staving Off Harmful Funding Cuts

As another Election Day approaches, followed quickly by the convening of a new U.S. Congress, THA has updated its federal policy priorities for lawmakers, addressed to both the current Congress and the one that will decide health care policy starting in 2023.

Among other priorities, THA asking lawmakers to:

  • Prevent harmful funding cuts to hospitals, such as the Medicare sequester cuts enacted earlier this year and coming up again in 2023;
  • Protect the rural hospitals of Texas, including by making permanent the Medicare-dependent hospital and enhanced low-volume adjustment programs that are set to expire on Dec. 16;
  • Continuing to allow critical delivery system flexibilities that originated during the COVID-19 pandemic, including for telehealth and hospital-at-home; and
  • Supporting retention and recruitment of the health care work force, including policies to expand workforce education and enactment of protections against workplace violence.

You can view all of THA’s federal priorities here. (Jennifer Banda, J.D./Cameron Krier Massey)

Check the List of Nursing Facilities Not Meeting QIPP Conditions of Participation

The Texas Health and Human Services Commission (HHSC) has published two lists of nursing facilities not currently meeting conditions of participation for the Quality Incentive Payment Program (QIPP) for state fiscal year (SFY) 2022 component 1 and component 2. Non-state government-owned hospitals should check whether participating nursing facilities they own and operate appear on these lists, and submit or correct needed documentation. HHSC has emailed nursing facility ownership who have not met conditions of participation.

All nursing facilities that received an email notice must reply with the required documentation as soon as possible, no later than Thursday, Dec. 7. Facilities must submit one completed Component 1 PIP Reporting Template and/or one Component 2 PIP Reporting Template demonstrating monthly progress updates for the SFY 2022 program year to meet the conditions of participation requirements. Failure to meet conditions of participation can result in removal from the program and recoupment of all funds paid in SFY 2022.

For more information about QIPP conditions of participation visit HHSC’s QIPP webpage. Any questions about QIPP can be sent to [email protected]. (Anna Stelter)

THA Soliciting Feedback on Proposed Electronic Emergency Detention Process

THA has been working with the state Office of Court Administration and Judicial Commission on Mental Health to determine whether it’s feasible to create an electronic means of obtaining an emergency detention order (EDO). The goal is to help streamline the process of obtaining orders when a patient is determined to be a danger to themselves or others. To assess the volume of potential requests for electronic EDOs, THA has created a member survey, which has previously been sent to individual hospitals. Facilities have the option of responding to the survey by individual hospital or as a system. Please complete the survey by Monday, Oct. 31. (Sara González)

Hospital Price Transparency Webinar Scheduled for Tuesday

Nearly two years after federal regulations began requiring hospitals to implement new price transparency requirements, public accounting and health care consulting firm Pershing Yoakley & Associates (PYA) says the requirements give hospitals an opportunity to improve their payer contracting strategies. PYA is hosting a webinar Tuesday, Nov. 1, from 1 to 2:25 p.m. CST titled “Hospital Price Transparency – Where Do We Go From Here?” Speakers will provide a summary of regulatory requirements, the latest data on hospital compliance with the regulations and a comparison of hospital-negotiated rates by payer, among other topics. More information on the webinar and registration are available here. (Cameron Duncan, J.D.)

Feds Issue Advisory on Cybercriminal Group

Three federal agencies, including the FBI, have issued a joint cybersecurity advisory regarding the cybercrime group “Daixin Team,” which actively targets health care and public health infrastructure in the U.S. The FBI, the Cybersecurity & Infrastructure Security Agency and the U.S. Department of Health and Human Services warn that Daixin Team encrypts health care servers containing electronic health record, diagnostic, imaging and intranet services. The group then threatens to withdraw patient health information and personal identifying information unless the organization pays ransom. Daixin gains access to virtual private network servers through malicious phishing emails.

The federal agencies advise organizations to update operating systems as soon as they are released and secure services with phishing-resistant multifactor authentication. They also recommend training personnel on recognizing and reporting suspicious phishing attempts. To prepare for incidents, the advisory recommends an encrypted offline backup of data alongside a comprehensive response plan. The advisory encourages organizations affected by attacks to not pay ransom, as doing so would not ensure file recovery and emboldens attackers to target others or engage in more distribution of ransomware. Instead, it asks affected organizations to report the attack to a local FBI or U.S. Secret Service field office, or to More information is available in the advisory. (Fernando Martinez)

Texas Register Highlights

The Texas Health and Human Services Commission (HHSC) proposed amendments to Title 1, Texas Administrative Code, Part 15, Chapter 354, Subchapter A, Division 33 (“Advanced Telecommunication Services”); and Subchapter M (“Mental Health Targeted Case Management and Mental Health Rehabilitation”). The purpose of the amendments is to implement House Bill 4, 87th (2021) Legislature, which required HHSC to develop policies and procedures for the provision of health care services delivered via telemedicine and telehealth. According to HHSC, the proposed amendments are necessary to comply with Texas Government Code, §531.02161 to ensure Medicaid recipients, child health plan program enrollees, and other individuals receiving benefits under a public benefits program, regardless of whether receiving benefits through a managed care delivery model or another delivery model, have the option to receive services via telemedicine and telehealth, including certain behavioral health services using an audio-only platform. The proposal also implements the amendments made in Texas Government Code, §531.001 by Senate Bill 1107, 85th (2017) Legislature; the changes made in Texas Government Code, §531.001 and §531.0217(d) by SB 670, 86th (2019) Legislature; and implements Texas Government Code, §531.02164 (c-1) added by HB 1063, 86th (2019) Legislature. Additionally, S.B. 922, 85th (2017) Legislature, added Government Code §531.02171. Section 531.02171(a) provides a definition for “health professional” as an individual who is licensed, registered, certified, or otherwise authorized in Texas to practice as a social worker, occupational therapist, or speech-language pathologist; a licensed professional counselor; a licensed marriage and family therapist; or a licensed specialist in school psychology. Section 531.02171(b) requires HHSC to ensure that Medicaid reimbursement is provided to a school district or open-enrollment charter school for telehealth services rendered through the school by a health professional, even if the health professional is not the patient’s primary care provider, if the school district or charter school is an authorized health care provider under Medicaid and the parent or legal guardian of the patient provides consent prior to delivery of the service. (Oct. 21)

The Texas Health and Human Services Commission (HHSC) proposed new Subchapter P in Title 1, Texas Administrative Code (TAC), Title 1, Part 15, Chapter 354, entitled “Autism Services”. The purpose of the proposal is to implement the legislative direction in Senate Bill 1, 87th (2021) Legislature (Article II, HHSC, Rider 28). Rider 28 appropriated funding for Applied Behavior Analysis (ABA) services for autism and directed HHSC to carry out the services as soon as practicable, but not later than Feb 1. A proposed Medicaid state plan amendment (SPA) was submitted to the Centers for Medicare & Medicaid Services (CMS) on Sep. 3, 2021. The proposed SPA clarified that, to the extent required by Early and Periodic Screening, Diagnosis, and Treatment (EPSDT), a licensed behavior analyst (LBA) operating within the LBA’s state scope of practice and licensure requirements may provide ABA evaluation and treatment services to eligible children under 21 years of age who have a diagnosis of autism spectrum disorder (ASD). On Jan. 27, CMS approved the SPA with an effective date of Feb 1. The new Subchapter P in Title 1, Part 15, Chapter 354 outlines the requirements for LBAs and other providers of Medicaid ABA services, with a focus on how services should be delivered. The proposed rules are consistent with the Medicaid Autism Services section (Austin Section) in the Children’s Services Handbook (Children’s Handbook) in the Texas Medicaid Provider Procedures Manual that went into effect on Feb. 1. (Oct. 21)

The Texas Health and Human Services Commission (HHSC) proposed the repeal of Title 1, Texas Administrative Code §371.212, concerning Minimum Data Set Assessments; §371.214, concerning Resource Utilization Group Classification System; and §371.216, concerning Waiver of Extrapolation; and proposes new §371.212, concerning Utilization Review of Nursing Facilities; §371.214, concerning HHSC-Approved Online RUG or Other HHSC-Required Training Course; §371.216, concerning Nursing Facility Clinical Records; §371.218, concerning Onsite and Desk Utilization Reviews of Nursing Facilities; §371.220, concerning Exit Conferences; §371.222, concerning Reconsideration of Utilization Review Results; §371.224, concerning Appeals of Reconsideration Results; §371.226, concerning Calculation of Overpayments and Underpayments; §371.228, concerning Recoveries; and §371.230, concerning Waiver of Extrapolation. The purpose of the proposal is to update procedures, modernize language, remove unnecessary or duplicative language, and add the option for desk reviews. The Office of Inspector General (OIG) Nursing Facility Utilization Review (NFUR) unit performs reviews to evaluate the quality of care, medical necessity, appropriateness, and efficiency of healthcare or services to nursing facility residents. Utilization review may include the assessment of the accuracy of coded items by review of clinical records, business records, observation of the recipient, interviews and other relevant sources of information. The proposed replacement of Sections 371.212, 371.214, and 371.216 with the new sections updates and re-organizes the OIG nursing facility utilization review procedures and provider requirements by: re-organizing the structure of the NFUR rules; providing procedures for desk reviews; deleting redundant language excerpted from the Resident Assessment Instrument (RAI) User’s Manual; adding language that links OIG’s use of extrapolation with existing Texas Administrative Code rule §371.35; and providing for the use of a case mix classification system that succeeds resource utilization groups. (Oct. 21)

The Texas Behavioral Health Executive Council proposed amendments to Title 22, Texas Administrative Code, §463.11, relating to Supervised Experience Required for Licensure as a Psychologist. The proposed amendment aims to add the Psychological Clinical Science Accreditation System to the list of accredited programs where an applicant can count supervised experience obtained in excess of the 1,750 hours required as part of the applicant’s internship. Additionally, subsection (c)(2) would be deleted, doing away with any time requirements between when a degree is awarded and when the person applies for licensure. Corresponding amendments have been made in subsection (f) because of the deletion of subsection (c)(2). (Oct. 21)

The Texas Behavioral Health Executive Council proposed an amendment to Title 22, Texas Administrative Code, Chapter 781 (“Social Worker Licensure”), §781.404, relating to Recognition as a Council-approved Supervisor and the Supervision Process. e. The proposed amendment provides more specific details regarding the minimum standards for the 40 hours of education needed to apply for supervisor status. Additionally, the proposed change deletes some duplicative language regarding the Council’s ability to discipline a licensee that continues to provide supervision after the licensee no longer possesses supervisor status, and the outdated subparagraph that initially required the 40 hours of supervision training in 2014. (Oct. 21)

Federal Register Highlights

The Agency for Healthcare Research and Quality (AHRQ) published a request for supplemental evidence and data submissions seeking scientific information from the public to inform their review on Strategies for Integrating Behavioral Health and Primary Care, which is currently being conducted by the AHRQ’s Evidence-based Practice Centers (EPC) Program. The submission deadline is on or before Nov. 21. (Oct. 21) (Steve Wohleb, J.D.)

The Health Care Advocate is a publication of the Texas Hospital Association, 1108 Lavaca, Austin Tx 78701. Telephone 512/465-1570 for information. For additional information regarding specific articles, please contact the THA staff member(s) listed at the bottom of each full article. According to Texas Government Code 305.027, this material may be considered “legislative advertising.” Authorization for its publication is made by Jennifer Banda, J.D., Texas Hospital Association, 1108 Lavaca, Suite 700, Austin, Texas 78701-2180.