Medical Care Advisory Committee. Brian Dees, Program Policy, HHSC

Transcription

1 TO: Medical Care Advisory Committee DATE: February 20, 2015 FROM: Brian Dees, Program Policy, HHSC Agenda Item No.: 7 Subject: Private Duty Nursing Services New/Repeal: The Texas Health and Human Services Commission (HHSC) proposes to repeal Title 1, Part 15, Chapter 363, Subchapter C in its entirety and propose new rules for this subchapter. BACKGROUND: Federal Requirement Legislative Requirement Other The changes to Chapter 363, Subchapter C address requirements in the Second Partial Settlement Agreement in Alberto N. v. Janek, Section 8.4, under which HHSC must conform its Private Duty Nursing (PDN) rules to the terms of the settlement agreement. HHSC, the Office of the Texas Attorney General, and the Alberto N. Plaintiffs counsel negotiated the specific wording of the rules. The proposed rules are the product of that negotiation process and represent HHSC s effort to conform its PDN rules to the terms and conditions of the settlement agreement. ISSUES AND ALTERNATIVES: There are no alternatives, as HHSC is required by the Alberto N. Second Partial Settlement Agreement to adopt rules that conform to the terms of the Agreement. STAKEHOLDER INVOLVEMENT: The proposed rule amendments were sent to external stakeholders for review. Comments received from stakeholders were reviewed by HHSC staff and taken into consideration. External stakeholders included: Texas Association of Health Plans (TAHP) Texas Association of Community-Based Health Plans Texas Board of Nursing Texas Medicaid Managed Care Organizations Texas Association for Home Care & Hospice Disability Rights Texas Every Child, Inc. FISCAL IMPACT: None Yes (if yes, please complete table below) Greta Rymal, Deputy Commissioner for Financial Services, has determined that during the first five-year period the amended rules are in effect there will be no fiscal impact to state or local governments.

2 There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment. RULE DEVELOPMENT SCHEDULE: February 20, 2015 February 27, 2015 May 2015 August 2015 September 1, 2015 Present to Medical Care Advisory Committee Present to HHSC Council Publish proposed rule in Texas Register Publish adopted rule in Texas Register Rule effective date REQUESTED ACTION: The MCAC recommends approval of the repealed and proposed rules for publication. The Council recommends approval of this rule. Information Only

3 TITLE 1 PART 15 CHAPTER 363 SUBCHAPTER C ADMINISTRATION TEXAS HEALTH AND HUMAN SERVICES COMMISSION TEXAS HEALTH STEPS COMPREHENSIVE CARE PROGRAM PRIVATE DUTY NURSING SERVICES PROPOSED PREAMBLE The Texas Health and Human Services Commission (HHSC) proposes to repeal , , , , , , , , and , concerning Private Duty Nursing; and proposes new , , , , , , and , concerning Private Duty Nursing. Background and Justification The changes to Chapter 363, Subchapter C address requirements in the Second Partial Settlement Agreement in Alberto N. v. Janek, Section 8.4, under which HHSC must conform its Private Duty Nursing (PDN) rules to the terms of the settlement agreement. HHSC, the Office of the Texas Attorney General, and the Alberto N. Plaintiffs counsel negotiated the specific wording of the rules. The proposed rules are the product of that negotiation process and represent HHSC s effort to conform its PDN rules to the terms and conditions of the settlement agreement. Section-by-Section Summary Proposed new establishes the PDN program and stipulates that Medicaid recipients 20 years and younger are entitled to all medically necessary Early and Periodic Screening, Diagnosis, and Treatment services that correct or ameliorate defects and physical and mental illnesses and conditions and that are eligible for federal financial participation. It further clarifies that these rules apply to Medicaid services delivered in either a fee-for-service or managed care delivery model. Proposed new defines the words and terms used in this subchapter. Proposed new establishes the qualifications and program participation requirements for practitioners who provide PDN services in Texas Medicaid. Proposed new defines the medical necessity standard for PDN services. Proposed new describes the benefits available under PDN services as well as limitations on those services. Proposed new describes prior authorization requirements for the provision of PDN services. Proposed new defines the required elements of a PDN plan of care.

4 Fiscal Note Greta Rymal, Deputy Commissioner for Financial Services, has determined that during the first five years the proposal is in effect there is no expected impact to costs or revenues of state or local governments to implement and enforce the rule(s) as proposed. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment. Small and Micro-Business Impact Analysis HHSC has determined that there is no anticipated adverse effect on small businesses or microbusinesses to comply with the revised rules. The revised rules align the TAC with Medicaid program policies that have already been implemented. Public Benefit Chris Traylor, Chief Deputy Commissioner, has determined that for each year of the first five years the proposed rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit, as a result of enforcing the proposed rules, will be that HHSC requirements surrounding private duty nursing services will comply with the terms of the Alberto N. settlement agreement. Regulatory Analysis HHSC has determined that this proposal is not a major environmental rule as defined by Texas Government Code A major environmental rule is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of the state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure. Takings Impact Assessment HHSC has determined that this proposal does not restrict or limit an owner s right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code Public Comment Written comments on the proposal may be submitted to Brian Dees, Policy Advisor, Medicaid and CHIP Division, Health and Human Services Commission at 4900 N. Lamar Blvd, MC H- 310, Austin, Texas 78751; by fax to (512) ; or by to brian.dees@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

5 Public Hearing A public hearing is scheduled for XXXXXX. Persons requiring further information, special assistance, or accommodations should contact Kristine Dahlmann at (512) Statutory Authority The repeals and new rules are proposed under Texas Government Code , which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code and Texas Government Code (a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas. The repeals and new rules affect the Texas Human Resources Code Chapter 32 and Texas Government Code Chapters 531. No other statutes, articles, or codes are affected by this proposal. This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency s legal authority to adopt.

6 TITLE 1 PART 15 CHAPTER 363 SUBCHAPTER C RULE ADMINISTRATION TEXAS HEALTH AND HUMAN SERVICES COMMISSION TEXAS HEALTH STEPS COMPREHENSIVE CARE PROGRAM PRIVATE DUTY NURSING SERVICES Purpose (a) The purpose of this subchapter is to establish rules for private duty nursing services under the federal Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, known in Texas as the Texas Health Steps - Comprehensive Care Program (THSteps-CCP). (b) EPSDT recipients are entitled to all medically necessary EPSDT services that: (1) correct or ameliorate defects and physical and mental illnesses and conditions; and (2) are eligible for federal financial participation. (c) This subchapter applies to Medicaid fee-for-service (FFS) and Medicaid managed care organizations (MCOs) that are contracted with HHSC to provide Medicaid services. RULE Definitions The following words and terms apply only to this subchapter and have the following meanings, unless the context clearly indicates otherwise. (1) Activities of daily living (ADLs)--ADLs include eating, toileting, personal hygiene, grooming, dressing, bathing, transferring, maintaining continence, positioning, and mobility. (2) Contractor--The entity with which HHSC contracts, pursuant to the requirements of the Code of Federal Regulations, Title 42, Part 434. (3) Correct or ameliorate--to improve, maintain, or slow the deterioration of the recipient s health status. (4) Day--A calendar day. (5) Early and Periodic Screening, Diagnosis, and Treatment (EPSDT)--The child and adolescent health component of the Medicaid program for recipients under 21 years of age, defined in the United States Code, Title 42, 1396d(r), and the Code of Federal Regulations, Title 42, (b). EPSDT means screening, vision, dental, hearing, laboratory, health care, treatment, diagnostic services, and other measures necessary to correct or ameliorate defects and physical and mental illnesses and conditions.

7 (6) Federal financial participation (FFP)--The federal government s share of a Medicaid expenditure made by a state agency, as defined in the Code of Federal Regulations, Title 45, (7) HHSC--The Texas Health and Human Services Commission or its designee. (8) Health Maintenance Activities (HMAs)--Has the meaning assigned by 22 TAC (relating to Definitions) and (relating to Health Maintenance Activities Not Requiring Delegation). (9) Home and Community Support Services Agency (HCSSA)--A public or private agency or organization licensed by the Texas Department of Aging and Disability Services under 40 TAC Chapter 97 (relating to Licensing Standards for Home and Community Support Services Agencies). (10) Identified contingency plan--a structured process, developed by the recipient or the responsible adult and the Medicaid-enrolled provider, by which a recipient will receive care when a scheduled health care provider is unexpectedly unavailable, as required by 40 TAC (relating to Backup Services and After Hours Care). (11) Instrumental activities of daily living (IADLs)IADLs include meal preparation, grocery shopping, light housework, laundry, communication, money management, and assistance with transportation services. (12) Licensed Vocational Nurse (LVN)--An individual who is recognized by the Texas Board of Nursing to practice vocational nursing in Texas at the time and place the service is provided, pursuant to Texas Occupations Code (5) and 22 TAC, Part 11 (relating to Texas Board of Nursing). (13) Medicaid--The Texas Medical Assistance Program, a joint federal and state program provided for in Chapter 32, Texas Human Resources Code, and subject to Title XIX of the Social Security Act, 42 U.S.C et seq. (14) Medicaid managed care organization (MCO)--Any entity with which HHSC contracts to provide Medicaid managed care services and that complies with Chapter 353 of this title (relating to Medicaid Managed Care). (15) Medical Director--HHSC s, its contractor s, or MCO s medical director or associate medical director. (16) Notice--A letter provided by HHSC, its contractor, or MCO to a recipient informing the recipient of any reduction, denial, or termination of a requested service, as described in the Code of Federal Regulations, Title 42, and

8 (17) Physician--A doctor of medicine (MD) or osteopathy (DO) who is recognized by the Texas Medical Board to practice medicine in Texas at the time and place the service is provided, pursuant to Texas Occupations Code (18) Private duty nursing (PDN) Services--Nursing, described by the Texas Occupations Code Chapter 301, and its implementing regulations at 22 TAC, Part 11 (relating to Texas Board of Nursing), when the recipient requires more individual and continuous care than is available from a visiting nurse or than is routinely provided by the nursing staff of a hospital or skilled nursing facility. PDN services include observation, assessment, intervention, evaluation, rehabilitation, care and counsel, or health teachings of a recipient who has a disability or chronic health condition or who is experiencing a change in normal health processes. (19) Private duty nursing services provider--an independently practicing registered nurse, a licensed vocational nurse (LVN) under the supervision of a registered nurse, or a home and community support services agency (HCSSA) enrolled in the Texas Medicaid Program to provide private duty nursing services. (20) Qualified Aide--An aide providing services consistent with the requirements of: (A) 40 TAC Chapter 94 (relating to Nurse Aides); (B) 40 TAC Chapter 95 (relating to Medication Aides-Program Requirements); or (C) home health aide outlined in 40 TAC Chapter 97 (relating to Licensing Standards for Home and Community Support Services Agencies). (21) Recipient--An individual who is eligible to receive services through the Texas Medicaid Program. (22) Registered Nurse (RN)--An individual who is recognized by the Texas Board of Nursing to practice professional nursing in Texas at the time and place the service is provided, pursuant to the Texas Occupations Code (23) Responsible adult--an individual who is an adult, as defined by the Texas Family Code, who has agreed to accept the responsibility for providing food, shelter, clothing, education, nurturing, and supervision for a recipient who: (A) is a minor under the age of 18; or (B) is over 18 years of age and the responsible adult is the managing conservator or legal guardian. Responsible adults include biological parents, adoptive parents, foster parents, guardians, court-appointed managing conservators, and other family members by birth or marriage.

9 (24) Treating physician--a physician who provides ongoing medical care of the recipient and ongoing medical supervision of the recipient s plan of care. (25) Texas Health Steps Comprehensive Care Program--Medical, dental, and treatment services available as a federally mandated service for eligible EPSDT Medicaid recipients in Texas under the age of 21 years, pursuant to the EPSDT provision of Title XIX of the Social Security Act, 42 U.S.C. 1396d(r), and the Code of Federal Regulations, Title 42, (b). RULE Provider Participation Requirements (a) PDN services providers must be independently enrolled in the Texas Medicaid Program to be eligible to receive reimbursement for providing private duty nursing services through the Texas Health Steps Comprehensive Care Program. (b) A PDN services provider must: (1) be an RN, an LVN under the supervision of an RN, or a licensed HCSSA; (2) be enrolled in the Texas Medicaid Program; (3) comply with the terms of the Texas Medical Assistance Provider Agreement; (4) agree to provide services in compliance with all applicable federal, state, and local laws and regulations, including the Texas Nursing Practice Act; (5) comply with all applicable state and federal laws and regulations relating to the Texas Medicaid Program; (6) comply with the requirements of the Texas Medicaid Provider Procedures Manual, including all updates and revisions published bimonthly in the Texas Medicaid Bulletin, and all handbooks, standards, and guidelines published by HHSC, its contractor, or MCO; and (7) comply with accepted professional standards and principles of nursing practice. (c) In addition to the requirements in subsection (b) of this section, a licensed HCSSA must: (1) comply with Texas Family Code Chapter 261 and Texas Human Resources Code Chapter 48, concerning mandatory reporting of suspected abuse and neglect of children and adults with disabilities; and

10 (2) maintain written policies and procedures for obtaining consent for medical treatment for clients in the absence of the responsible adult that meet the standards of Texas Family Code , relating to Consent by Non-Parent. (d) Provider Notification of Termination of Services. (1) Independently enrolled RNs must provide a recipient at least 30 days written notice of the intent to voluntarily terminate services, except in situations of a potential threat to the nurse's personal safety. (2) An HCSSA must provide a recipient at least five days written notice of its intent to voluntarily terminate services, except as allowed by 40 TAC (relating to Client Transfer or Discharge Notification Requirements). RULE Medical Necessity (a) PDN services are available to EPSDT-eligible recipients when the services are medically necessary to correct or ameliorate the recipient s disability or physical or mental illness or condition. The services correct or ameliorate when they improve, maintain, or slow the deterioration of the recipient s health status. (b) Medical necessity must be documented in the recipient s prior authorization request. RULE Benefits and Limitations (a) PDN services are a benefit of the Texas Medicaid Program in accordance with the Code of Federal Regulations, Title 42, , relating to PDN services, and (b), relating to EPSDT services. (b) EPSDT recipients are eligible for all PDN services that are medically necessary to correct or ameliorate the recipient s disability and physical and mental illnesses and conditions. (c) The provider requesting PDN services must supply documentation to support the medical need for a private duty nurse. The documentation must also support the number of PDN hours that are medically necessary to correct or ameliorate the recipient s disability and physical and mental illnesses and conditions. (d) EPSDT recipients are eligible for all medically necessary PDN services that are required to meet the recipient s documented PDN needs over the span of time the needs arise, as the needs occur over the course of a 24-hour day. (e) PDN services must be:

11 (1) prescribed by and provided under the direction of a treating physician; (2) included in a plan of care, as described in of this subchapter (relating to Plan of Care); (3) delivered by a Texas Medicaid Program-enrolled PDN services provider; and (4) provided in compliance with all applicable state and federal laws and regulations. (f) PDN services are available when an individual: (1) is eligible for EPSDT services; (2) has a treating physician who: (A) issues a prescription or physician s order for PDN services; (B) reviews and approves an established and maintained plan of care in accordance with of this subchapter; and (C) provides continuing care and medical supervision, including examination or treatment, within 30 days prior to the start of PDN services; and (3) has a responsible adult who resides in the recipient s residence when the recipient is a minor under the age of 18 years or when the recipient is 18 years of age or older with a managing conservator or legal guardian. (g) HHSC, its contractor, or MCO will may not: (1) require a recipient s responsible adult(s) to provide PDN services to the recipient; (2) require a recipient or a recipient s responsible adult(s) to designate an alternate caregiver to provide PDN services; or (3) deny or reduce the amount of requested PDN services because the recipient's responsible adult(s) is trained and capable of performing such services, but chooses not to do so. (h) HHSC, its contractor, or MCO may require providers to instruct and train responsible adults to perform PDN services should an emergency arise, or if the responsible adults voluntarily choose to provide part of the recipient s PDN themselves. (i) The amount of medically necessary PDN services available to recipients will not be capped.

12 (j) PDN services must be provided in a place of service consistent with the requirements in the Code of Federal Regulations, Title 42, , relating to PDN. (k) PDN services may be provided only by an RN or by an LVN who is under the supervision of an RN. (l) PDN services must be prior authorized by HHSC, its contractor, or MCO. PDN may be authorized for a period of up to six months. (m) The PDN services provider is notified in writing by HHSC, its contractor, or MCO of the approval, reduction, or denial of requested PDN services. (n) PDN services limitations. (1) PDN is considered only when the services are consistent with the definition of nursing as described in the Texas Nursing Practice Act or its implementing regulations. PDN services will not be considered for reimbursement if the services are intended solely to provide respite care, child care, or do not directly relate to the recipient s nursing needs. (2) A responsible adult is not eligible for reimbursement for delivering PDN services through the Texas Medicaid Program if he or she is the parent of a recipient who is under the age of 18 or the spouse of the recipient. A responsible adult who is the managing conservator or legal guardian of a recipient over 18 years of age is not eligible for reimbursement. (o) HHSC, its contractor, or MCO may deny or reduce PDN hours if the recipient s PDN needs decrease. (p) HHSC, its contractor, or MCO may not deny or reduce PDN when the recipient s nursing needs have not decreased. RULE Prior Authorization Requirements (a) PDN services must be prior authorized. Prior authorization is a condition of reimbursement but is not a guarantee of payment. (b) HHSC, its contractor, and MCOs will publish in the Texas Medicaid Provider Procedures Manual and websites all processes, tools, and scales used to prior authorize PDN services. HHSC, its contractor, or MCO may use only these processes, tools, and scales to prior authorize PDN services. (c) The provider must submit a complete request for prior authorization in order to be considered by HHSC, its contractor, or MCO for reimbursement. The authorization request must include the HHSC, its contractor, or MCO -approved authorization form, signed and dated by the recipient s treating physician. The provider must use the

13 documents, tools, or processes published in the Texas Medicaid Provider Procedures Manual or any updates made available through bulletins, banners, or other means to request prior authorization. (d) Documentation supporting the prior authorization request must clearly and consistently describe the recipient s: (1) current diagnosis; (2) functional status and condition; (3) history and treatment; and (4) frequency and complexity of skilled nursing needs, as those needs arise over the span of a 24-hour day. (e) The supporting documentation: (1) must include: (A) documentation of the treating physician s orders, e.g., a prescription or a written or documented verbal order signed and dated by a treating physician; and (B) a plan of care that satisfies the requirements as described in of this subchapter (relating to Plan of Care); (2) may include any additional materials the provider may choose to submit that supports the medical necessity of the requested PDN services; (3) must explain to HHSC's, its contractor's, or MCO s satisfaction how the requested PDN is necessary to correct or ameliorate the recipient s disability or physical or mental illness or condition; and (4) must show that the recipient s skilled nursing needs cannot be met on a part-time or intermittent basis by a visiting nurse as described in Chapter 354, Subchapter A, Division 3 of this title (relating to Medicaid Home Health Services). (f) Process for authorizations. (1) HHSC, its contractor, or MCO authorizes requested PDN services required to meet all of the recipient s PDN needs when the medical necessity for a private duty nurse is documented. (2) HHSC, its contractor, or MCO reviews requests for PDN services that comply with subsections (b) through (e) of this section.

14 (3) The information must be complete and consistent throughout the documentation associated with the prior authorization request for PDN services. (4) PDN services are prior authorized with reasonable promptness. Prior authorization determinations are completed by HHSC, its contractor, or MCO within three business days of receipt of a complete request. (5) If a request for PDN is incomplete, inconsistent, or unclear, HHSC, its contractor, or MCO will contact the provider to request additional or clarifying documentation to enable HHSC, its contractor, or MCO to make a decision on the request. (6) Prior authorizations for PDN services are not denied or reduced based solely on the recipient's diagnosis, type of illness, or health condition. (7) Prior authorizations for PDN services are not denied or reduced solely because the recipient s condition or health status is stable or has not changed. (g) HHSC, its contractor, or MCO authorizes requested medically necessary PDN services when: (1) the prior authorization request for PDN is complete, as described in subsections (b) through (e) of this section; (2) the requested services are nursing services as defined by the Texas Nursing Practice Act and its implementing regulations; and (3) no third-party resource, as described in the Texas Medicaid Provider Procedures Manual, is financially responsible for the requested services. (h) HHSC, its contractor, or MCO may deny or reduce PDN services when the: (1) request is incomplete; (2) information in the request is inconsistent; (3) documentation does not explain to HHSC's, its contractor's, or MCO s satisfaction the medical need for a private duty nurse or no longer supports the medical need for a private duty nurse; (4) documentation does not address how PDN services correct or ameliorate the recipient s disability or physical or mental illness or condition; (5) requested PDN services are not nursing services as defined by the Texas Nursing Practice Act and its implementing regulations;

15 (6) medical director, after conferring with the recipient s treating physician, determines the requested PDN services are not medically necessary to correct or ameliorate the recipient s disability or physical or mental illness or condition; or (7) recipient s nursing needs could be met through a visiting nurse as described in Chapter 354, Subchapter A, Division 3 of this title (relating to Medicaid Home Health Services). (i) Only the medical director may deny PDN services on the basis that the services do not correct or ameliorate the recipient s disability or physical or mental illness or condition. Before denying PDN services, the medical director will contact the recipient's treating physician to determine whether additional information or clarification can be provided that would allow for authorization of PDN services. (j) All notices must afford a recipient an opportunity for a fair hearing in accordance with 42 CFR, Part 431, Subpart E, related to Fair Hearings for Applicants and Recipients. (1) HHSC, its contractor, or MCO may determine, based on the information submitted, that PDN services will be denied, terminated, or reduced. A notice regarding the denial, termination, or reduction of PDN services must be sent to the recipient and the requesting provider. The notice must inform the recipient of his orher right to request a fair hearing as described in Chapter 357, Subchapter A of this title (relating to Uniform Fair Hearing Rules). (2) When HHSC, its contractor, or MCO determines that the requested services are not PDN services and that the documentation may support authorization of personal care services, as described in Subchapter F of this chapter (relating to Personal Care Services), the denial notice: (A) describes the basis for this determination; (B) briefly describes the personal care services benefit; and (C) explains how to request personal care services. (3) When HHSC, its contractor, or MCO, determines that documentation for the services requested does not support a request for PDN because the recipient does not need more individual and continuous nursing care than could be provided on a per-visit basis, as described in of this title (relating to General), the denial notice: (A) describes the basis for this determination; (B) briefly describes the home health nursing benefit; and (C) explains how to request prior authorization for home health nursing.

16 (4) When HHSC, its contractor, or MCO determines that the request for PDN services is incomplete, as referenced in subsection (h)(1) of this section, the denial notice will inform the recipient that the documentation or information is incomplete and identify the sections of the documentation or information that are incomplete. (5) When HHSC, its contractor, or MCO determines that the request for PDN services is inconsistent, as referenced in subsection (h)(2) of this section, the denial notice will inform the recipient that the documentation or information is inconsistent and identify the inconsistencies. (6) When HHSC, its contractor, or MCO determines that the request for PDN services does not explain to HHSC's, its contractor's, or MCO s satisfaction the medical need for a private duty nurse or no longer supports the medical need for a private duty nurse as referenced in subsection (h)(3) of this section, the denial notice will inform the recipient and address how the documentation or information does not explain to HHSC's, its contractor's, or MCO s satisfaction the medical need for a private duty nurse or how the documentation no longer supports the medical need for a private duty nurse. (7) When HHSC, its contractor, or MCO determines that the information provided does not address how PDN services correct or ameliorate the recipient s disability or physical or mental illness or condition as referenced in subsection (h)(4) of this section, the denial notice will inform the recipient and address how the information provided in the request does not support the medical need for PDN services. (8) When HHSC, its contractor, or MCO determines that the requested PDN services are not nursing services as defined by the Texas Nursing Practice Act and its implementing regulations, as referenced in subsection (h)(5) of this section, the denial notice will inform the recipient and address how the requested PDN services are not nursing services as defined by the Texas Nursing Practice Act and its implementing regulations. (9) When HHSC, its contractor, or MCO medical director, after conferring with the recipient s treating physician, determines the requested PDN services are not medically necessary to correct or ameliorate the recipient s disability or physical or mental illness or condition, as referenced in subsection (h)(6) of this section, the denial notice will inform the recipient and address why the requested PDN services are not medically necessary to correct or ameliorate the recipient s disability or physical or mental illness or condition. (10) When HHSC, its contractor, or MCO determines that the recipient s nursing needs could be provided by a visiting nurse through Home Health Skilled Nursing services, as referenced in subsection (h)(7) of this section, the denial notice for PDN services will describe the basis for the denial and explain how to request Home Health Skilled Nursing services. (k) A provider s authorization for PDN services is terminated if the recipient is no longer eligible for EPSDT.

17 (l) HHSC, its contractor, or MCO may ask a provider to take on an existing authorization for PDN services if it becomes necessary to terminate another provider s authorization for PDN services because the: (1) recipient's health and safety needs are in jeopardy; or (2) PDN services provided are inconsistent with the plan of care submitted for authorization. RULE Plan of Care (a) A plan of care is developed by an RN and represents the treating physician s orders. (b) The plan of care must be established and periodically reviewed by the treating physician in consultation with the provider and the recipient or responsible adult. (c) The plan of care must be: (1) submitted with a request for prior authorization of PDN services; (2) recommended, signed, and dated by the treating physician no more than 30 days from the start of care or 30 days from the end of the prior authorization period; and (3) reviewed and revised by the treating physician with each prior authorization, or more frequently as the treating physician or the PDN services provider deems necessary. (d) A plan of care must include the following elements: (1) a clinical summary that documents active diagnoses and current clinical condition; (2) the recipient s mental or cognitive status; (3) the types of treatments and services, including amount, duration, and frequency; (4) a description of any required equipment and/or supplies; (5) the recipient s prognosis; (6) the recipient s rehabilitation potential; (7) the recipient s current functional limitations; (8) the activities permitted; (9) the recipient s nutritional requirements;

18 (10) the recipient s medications, including dose, route, and frequency; (11) the safety measures to protect against injury; (12) instructions for timely discharge or referral; (13) the date the recipient was last seen by the treating physician; (14) identification of ADLs, IADL, and health-related functions with which the recipient needs assistance. The plan of care must indicate whether the tasks must be performed by a licensed nurse or a qualified aide, or may be performed by a personal care attendant as described in Subchapter F of this chapter (relating to Personal Care Services); (15) a certification statement that an identified contingency plan exists; and (16) all other medical orders.