The following information was obtained from the May 2 issue of the Texas Register:

Open Meetings

The Texas Health and Human Services Commission (HHSC) will hold a series public hearings on May 19, 20, and 23 concerning Medicaid reimbursement rates for various providers. For times and locations, please follow this link and scroll down for more information about each hearing.

Proposed Rules

HHSC has proposed to repeal §352.10, Quality Assurance Fee for the Home and Community-based Services and Community Living Assistance and Support Services waiver programs, under Title 1, Part 15, Chapter 352.

HHSC also proposed amendments to §355.105, concerning General Reporting and Documentation Requirements, Methods, and Procedures, which would establish cost reporting and documentation requirements, methods and procedures for all Department of Aging and Disability Services programs for which the HHSC administers rates. For more information about both proposed rules, see the relevant section of the Texas Register.

The Texas Board of Nursing has proposed to amend 22 Texas Administrative Code §213.12 regarding Witness Fees and Expenses, which would allow a witness who has been subpoenaed by the Board or a party to a proceeding of the Board’s to receive adequate reimbursement for their mileage. The Board also proposes to amend 22 Texas Administrative Code §223.1 regarding Fees, to reduce the renewal fees for Registered and Vocational Nurses from $67 to $65 and from $58 to $55, because of a $4.75 reduction in the fee for an FBI fingerprint-based criminal background check and the increased income from a higher number of RNs and LVNs renewing their licenses.

See the relevant section of the Texas Register for more information.

Adopted Rules

HHSC has adopted new §355.310, concerning the reimbursement methodology for customized power wheelchairs and associated physical or occupational therapy evaluations for qualified Texas nursing facility residents. The new rule lays out the reimbursement methodology.

The Texas Board of Nursing had adopted the repeal of 22 Texas Administrative Code §217.19 (Incident-Based Nursing Peer Review), and §217.20 (Safe Harbor Peer Review for Nurses), because of changes to the peer review process. See the relevant section of the Texas Register for more information.

The Texas Department of Aging and Disability Services (DADS) released three new information letters:

• Helpful Nursing Facility Provider Information for the TILEs to RUGs Transition

DADS informed Nursing Facility and Hospice Providers about the September 1, 2008, transition from the Texas Index for Level of Effort (TILE) to the federal Resource Utilization Group (RUG). DADS says it is essential for providers to monitor future updates on the Texas Medicaid & Healthcare Partnership website at www.tmhp.com or the DADS Provider Communications website:

http://www.dads.state.tx.us/providers/communications/index.cfm

Download the four-page letter and attachment for more information.

• Helpful Community Services Provider Information for the TILEs to RUGs Transition

In a letter to Community Based Alternatives, Home and Community Support Services Agencies, Consolidated Waiver Programs, Program of All-Inclusive Care for the Elderly, State of Texas Access Reform Plus, and Integrated Care Management Providers, DADS informed these providers about the September 1, 2008, transition from the Texas Index for Level of Effort (TILE) to the federal Resource Utilization Group (RUG). Download the letter for more information.

• Provider Clarification to Rule §9.223, Review of Living Options

DADS clarified the responsibilities for Intermediate Care Facility for Persons with Mental Retardation Providers and Mental Retardation Authorities under Rule §9.223, Review of Living Options in a two-page letter. You may find the rule here.

According to DADS, providers must discuss living options with each individual and legally authorized representative, and document the discussion. For more information, download the letter.

Lawmakers on Capitol Hill continue to debate and discuss Medicare issues. This week, the House Ways and Means Health Subcommittee held a hearing to discuss the competitive bidding program for durable medical equipment. (Kaiser Network)

Durable equipment includes prosthetics, orthotics, and other tools, and the Centers for Medicare and Medicare Services is tasked with selecting suppliers based on bids. The program will expand to 70 additional Metropolitan Statistical Areas in 2009. An excerpt:

Subcommittee Chair Pete Stark (D-Calif.) said that the hearing will address concerns from durable medical equipment suppliers and advocates for Medicare beneficiaries that the program is “not working as well as it is supposed to” (CQ HealthBeat, 5/5).

According to Stark, the hearing will allow lawmakers to determine whether the program requires revisions before the scheduled expansion in 2009 (Edney, CongressDaily, 5/6). Stark said, “I’d like to see the whole thing scrapped.” He added that Congress likely will take action to revise the program, with only the “question of whether we’ll do it in 2008 or 2009.” The House Small Business Committee plans to hold a hearing on the program later this month (Wilde Mathews, Wall Street Journal, 5/6).

In other Medicare news, lobbyists continue their efforts to convince Congress to delay a 10.6 percent reimbursement fee cut for Medicare physicians, although Senate action on the issue might be pushed back. (Kaiser Network)

Other matters, such as an Iraq war spending bill and bill that would delay new Medicare regulations, will push the physician fee cut issue down the priority list, according to an AARP spokesperson.

President Bush is expected to sign into law the Genetic Information Nondiscrimination Act (GINA) passed last week by Congress. The new law, which has been debated in Congress for 13 years, adds to current federal anti-discrimination laws (including Title VII) prohibitions on employers and insurance companies using genetic tests showing people are at risk of developing cancer, heart disease or other ailments to reject their job applications, promotions or health care coverage, or in setting premiums. Like HIPAA (Health Insurance Portability and Accountability Act of 1996), GINA provides for an exception to use or acquisition of genetic information with the voluntary signed consent of an employee or applicant.

In sum, GINA prohibits health insurance companies from using genetic information to set premiums or determine enrollment eligibility. Employers, with very few exceptions, cannot use genetic information in hiring, firing or promotion decisions and must maintain any genetic information strictly confidential in compliance with the ADA (medical records) and HIPAA. As for enforcement, procedures and damages –– think ADA. In other words, private employers with fifteen or more employees are subject to GINA. The Equal Employment Opportunity Commission (EEOC) will be charged with investigating complaints, and the procedure and remedies are mostly identical to other federal anti-discrimination laws.

The law will go into effect in November 2009, by which time the Department of Labor is supposed to have enacted its regulations for GINA.

What in the World Do I Care About Genetics? While genetic testing for employment purposes is not regularly used by most of our clients, most do require post-offer medical examinations and verification of absences and FMLA time. Studies cited in support of GINA show that nearly two-thirds of major U.S. companies require medical examinations of new hires, of which 14% conduct tests for susceptibility to workplace hazards, among other things. The federal government for several years has prohibited the federal government from requiring genetic testing or from considering a person’s genetic information in hiring or promotion decisions. Plus, there are labs actively marketing to employers in connection with disability and workers’ compensations claims. GINA significantly proscribes the use of any testing with a genetic component.

Does Texas Have a Similar State Law? Well, yes, Virginia…it does! Texas is one of 31 states (according to National Human Genome Research Institute) that have already adopted laws regarding genetic discrimination in the workplace. Texas’ law has been in effect since 1997. Parallel to GINA, Texas law:

• Provides for protection against discrimination by employers with 15 or more employees, employment agencies, or labor unions based on information about an individual’s genetic characteristics or on the refusal of an individual to take a genetic test or submit a family health history.

• Provides a civil penalty if a person improperly discloses genetic information.

• Employers must keep genetic testing confidential unless an individual specifically authorizes release of such information, or unless they are required to release information pursuant to a court order, or otherwise required by law.

What Difference Will This Make If I Don’t Require Genetic Testing? Like any other anti-discrimination law, employers will want to have a clear written policy as well as procedures prohibiting conduct in violations of GINA as well as educate workers on what is not prohibited by the Act.

Does GINA Affect Our Employee Wellness Program? Yes. Under both HIPAA and, now, GINA, employers may use both personal health and genetic information as part of a qualified wellness program. Wellness programs generally reward participants for reaching a desired health outcome … giving up smoking or losing weight, for example, or carrying out a specified exercise regime. You can see the U.S. Department of Labor’s new rules for creating workplace wellness programs that comply with existing HIPAA law (no doubt soon to be amended to include GINA).

To prevent employers from practicing “back door discrimination,” a wellness plan must meet very specific requirements. Check with your legal counsel regarding wellness programs to keep your plan “legally healthy.”

Little Known Fact: Per the National Human Genome Research Institute, everyone probably has at least six genetic mutations placing them at greater risk for some disease. Although these mutations do not necessarily mean that a disease will develop, researchers said, that the person is more likely to get the disease than someone without the genetic mutation.

The House voted 414-1 for GINA last Thursday, a week after the legislation passed the Senate on a 95-0 vote. The only member of Congress to vote against the bill was Rep. Ron Paul, R-Texas. Click here to read the complete text of GINA.

The Bush administration has agreed to a moratorium on two of seven proposed Medicaid rules, which include limiting Medicaid reimbursements to hospitals and nursing homes run by state and local governments, so lawmakers can discuss and agree to changes. (Medical News Today)

As you may recall, the administration proposed to limit physician reimbursement rates and stopped the expansion of Medicaid programs like the State Children’s Health Insurance Program.

According to U.S. Department of Health and Human Services secretary Mike Leavitt, President Bush would veto any bill that places a moratorium on all seven rules.

“We’re trying to put a package together where the five would remain and we would extend [graduate medical education funding] and [intergovernmental transfers to public hospitals] for a period where we tried to find a solution…We would defer the implementation until August, and if we’re not able to do that, it would be deferred until March.”