(a) Introduction. The Texas Health and Human Services Commission (HHSC) uses the methodology described in this section to establish retention payments for Home and Community-Based Services (HCBS) under HHSC's spending plan pursuant to section 9817 of the American Rescue Plan Act.
(b) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
  (1) Direct Care staff--
    (A) A provider, or an employer in the consumer directed services (CDS) option, who provides the following services, as described in Title 40 Texas Administrative Code (TAC) §49.101 (relating to Application):
      (i) Community Attendant Services program services;
      (ii) Primary Home Care program services;
      (iii) day activity and health services;
      (iv) in the Community Living Assistance and Support Services Program:
        (I) community first choice personal assistance services/habilitation (CFC PAS/HAB);
        (II) habilitation (transportation);
        (III) supported employment;
        (IV) in-home respite;
        (V) nursing services; or
        (VI) specialized nursing services;
      (v) in the Deaf-Blind Multiple Disabilities Program:
        (I) CFC PAS/HAB;
        (II) residential habilitation (transportation);
        (III) in-home respite;
        (IV) licensed assisted living;
        (V) licensed home health assisted living;
        (VI) supported employment;
        (VII) day habilitation;
        (VIII) nursing services; or
        (IX) specialized nursing services;
      (vi) in the Home and Community-Based Services Program:
        (I) CFC PAS/ HAB;
        (II) supported home living (transportation);
        (III) supervised living;
        (IV) residential support services;
        (V) day habilitation;
        (VI) supported employment;
        (VII) in-home respite;
        (VIII) nursing services; or
        (IX) specialized nursing services; and
      (vii) in the Texas Home Living Program:
        (I) CFC PAS/HAB;
        (II) community support services (transportation);
        (III) day habilitation;
        (IV) supported employment;
        (V) in-home respite;
        (VI) nursing services; or
        (VII) specialized nursing services.
    (B) A provider or employee or subcontractor of a provider who provides the following services in the Home and Community-Based Services--Adult Mental Health (HCBS-AMH) Program, as described in 26 TAC §307.51(relating to Purpose and Application):
      (i) supervised living;
      (ii) supported home living; or
      (iii) nursing services.
    (C) An employee or subcontractor of a provider, or an employee of an employer in the CDS option who provides:
      (i) personal care services, as described in Chapter 363, Subchapter F of this title (relating to Personal Care Services); or
      (ii) CFC habilitation (CFC HAB) or CFC personal assistance services (CFC PAS), as described in Chapter 354, Subchapter A, Division 27 of this title (relating to Community First Choice).
    (D) A provider or an employer in the CDS option who provides:
      (i) in the STAR+PLUS program and STAR+PLUS HCBS program:
        (I) assisted living;
        (II) CFC PAS;
        (III) CFC HAB;
        (IV) day activity and health services;
        (V) in-home respite care;
        (VI) personal assistance services;
        (VII) supported employment;
        (VIII) protective supervision;
        (IX) nursing services; or
        (X) specialized nursing services;
      (ii) in the STAR Health program and Medically Dependent Children Program (MDCP):
        (I) day activity and health services;
        (II) CFC PAS;
        (III) CFC HAB;
        (IV) flexible family support;
        (V) in-home respite;
        (VI) personal care services;
        (VII) nursing services; or
        (VIII) specialized nursing services; and
      (iii) in the STAR Kids program and MDCP:
        (I) CFC PAS;
        (II) CFC HAB;
        (III) personal care services;
        (IV) day activity and health services;
        (V) flexible family support services;
        (VI) in-home respite;
        (VII) nursing services; or
        (VIII) specialized nursing services.
  (2) Managed care organization (MCO)--Has the meaning assigned in §353.2 of this title (relating to Definitions).
  (3) Provider--Refers to an HHSC contractor as defined in §355.7051(a)(1) of this title (relating to Base Wage for a Personal Attendant) and provider as defined in §353.2 of this title.
(c) Eligibility. To receive and maintain retention payments from HHSC under this section:
  (1) A provider must be actively billing Medicaid services.
  (2) A provider must agree to use at least 90 percent of payments made under this section for recruitment and retention efforts for direct care staff delivering HCBS services as defined in subsection (b) of this section. Payments made under this section can include financial compensation directed toward direct care staff, including lump-sum bonuses, retention bonuses, and paid time off to receive a COVID-19 vaccination or to isolate after receiving a positive COVID-19 test. Funds under this section can be used to pay payroll and unemployment taxes and workers' compensation necessary to implement the financial compensation for HCBS direct care staff.
  (3) A provider must agree not to use the payments made under this section to increase hourly wages paid to direct care staff on an ongoing basis and to limit use of the funds to types of compensation that will not result in future reductions to hourly wages when the payments are discontinued.
  (4) A provider must submit two required reports regarding use of funds made under this section in a manner prescribed by HHSC. Required reporting includes furnishing data to document vacancy rates in direct care staff positions and direct care staff retention percentage and other indicators related to a provider's use of the funds made under this section as defined by HHSC.
  (5) HHSC must receive approval from Centers for Medicare & Medicaid Services (CMS) for the provider type or specific service to be paid under this section.
(d) Attestation of Agreement. A provider must submit an electronic attestation of agreement to comply with subsection (c)(2) - (c)(3) of this section as specified by HHSC. HHSC will provide notice at least thirty calendar days prior to the attestation deadline.
(e) Required reporting. A provider must submit required reporting to comply with subsection (c)(4) of this section. The required reports will be due on dates specified by HHSC. HHSC will provide at least thirty calendar day notice prior to the required deadline for each report.
(f) Reconciliation process. HHSC uses the methodology in this subsection to recoup the payments made under this section if a provider fails to submit the attestation of agreement under subsection (d) or required reporting under subsection (e) of this section.
  (1) HHSC will reduce reimbursement rates for any claim for services to the amount that would have been paid to the provider absent the HCBS retention payment rate increase.
  (2) The provider's claims will be reprocessed at the lower reimbursement rate under paragraph (1) of this subsection and an accounts receivable will be established.
  (3) The provider will be paid on a normal per claim basis after the equivalent amount of the account receivable has been collected by HHSC, or its designee.
  (4) After 270 days from the date of the establishment of the account receivable under paragraph (2) of this subsection, HHSC will recoup any overpayments owed under paragraph (1) of this subsection by demanding immediate repayment of any outstanding amount.
(g) Overpayment.
  (1) If payments under this section result in an overpayment to a provider, HHSC, or its designee, may recoup an amount equivalent to the overpayment.
Cont'd...