Texas Health and Human Services Commission v. Linda Puglisi

ACCEPTED
03-15-00226-CV
5697644
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/16/2015 2:49:54 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00226-CV

IN THE COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
AT AUSTIN, TEXAS 6/16/2015 2:49:54 PM
JEFFREY D. KYLE
Texas Health & Human Services Commission, Clerk
Appellant,
v.
Linda Puglisi,
Appellee.

On Appeal from Cause No. D-1-GN-14-000381
53rd Judicial District Court of Travis County, Texas
Honorable Judge Gisela D. Triana Presiding.

APPELLANT’S BRIEF

KEN PAXTON EUGENE A. CLAYBORN
Attorney General of Texas State Bar No.: 00785767
Assistant Attorney General
CHARLES E. ROY Deputy Chief, Administrative Law Division
First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL OF TEXAS
P.O. Box 12548, Capitol Station
JAMES E. DAVIS Austin, Texas 78711-2548
Deputy Attorney General for Telephone: (512) 475-3204
Civil Litigation Facsimile: (512) 320-0167
eugene.clayborn@texasattorneygeneral.gov
DAV ID A. TALBOT, JR.
Chief, Administrative Law Division Attorneys for Texas Health and
Human Services Commission

ORAL ARGUMENT REQUESTED June 12, 2015
 IDENTITIES OF PARTIES AND COUNSEL

Defendants/Appellant: Texas Health & Human Services Commission

COUNSEL:

EUGENE A. CLAYBORN
State Bar No. 00785767
Assistant Attorney General
Deputy Chief, ADMINISTRATIVE LAW DIVISION
OFFICE OF THE TEXAS ATTORNEY GENERAL
P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-3204
Facsimile: (512) 320-0167
eugene.clayborn@texasattorneygeneral.gov

Plaintiffs/Appellee: Linda Puglisi

COUNSEL:

MAUREEN O’CONNELL
State Bar No.: 00795949
SOUTHERN DISABILITY LAW CENTER
1307 Payne Avenue
Austin, Texas 78757
moconnell458@gmail.com

ORAL ARGUMENT REQUESTED

Pursuant to Rule 39, Texas Rules of Appellate Procedure, Appellant
requests oral argument in this case. Appellant believes that oral argument
will be beneficial to the court, given the complexity and novelty of the legal
issues identified herein.

ii
 TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ........................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES.................................................................................... vi
I. STATEMENT OF THE CASE ..............................................................................1
II. ISSUES PRESENTED ..........................................................................................2
III. STANDARD OF REVIEW .................................................................................3
IV. JUDICIAL DEFERENCE TO AGENCY INTERPRETATION ........................4
V. FACTS OF THE CASE ........................................................................................7
VI. SUMMARY OF THE ARGUMENT ..................................................................8
VII. ARGUMENT AND AUTHORITIES ................................................................9
A. Since Medicaid is the payor of last resort and Medicare is the payor of first
resort, Puglisi’s dual eligible status requires her to seek prior authorization
via the CMS Medicare DME process before seeking prior authorization for
Medicaid services. Therefore, this suit is no longer ripe for adjudication.....9
1. This suit is not ripe because of Puglisi’s dual eligibility status........10
2. Medicare has its own preauthorization process. ...............................11
B. The trial court erred in failing to remand pursuant to Tex. Gov’t Code
§2001.175 based on Puglisi’s dual eligible status........................................12
C. Puglisi’s suit for judicial review is not meritorious and HHSC’s decision
affirming Molina Healthcare’s decision should not have been reversed. ....13
D. HHSC’s decision affirming Molina Healthcare’s decision complies with
applicable state and federal Medicaid regulations, therefore, the decisions
are not arbitrary, capricious, or unreasonable. .............................................15
E. Substantial evidence supports HHSC’s decisions because Puglisi failed to
meet her burden to show that the Group 4 power wheelchair, integrated
standing feature, and power seat elevation system are medically necessary,
that their appropriateness has been properly documented, or that Puglisi has
obtained prior authorization pursuant to 1 TAC §§ 354.1035(b),
.1039(a)(4), and .1040(d). ............................................................................16
1. Although the Group 4 custom power wheelchair is a covered DME
Medicaid home health benefit, it is not medically necessary, its
appropriateness has not been properly documented, or Puglisi has
not obtained prior authorization in this case.....................................18
iii
 a. A Group 4 PMD is not medically necessary to correct or ameliorate
Puglisi’s medical need for mobility and independence. ................20
b. Puglisi’s documentation failed to satisfy the prior authorization
criteria described in TMPPM § 2.2.14.12.5. ..................................22
c. Exceptional circumstances review of Puglisi’s request for a group 4
power wheel chair is not required because it is listed DME..........23
2. The integrated standing feature is not a covered reimbursable
benefit, therefore, it should not be considered medically necessary,
appropriate, or prior authorized. .......................................................23
a. Mobile power standing systems are not a covered benefit pursuant
to TMPPM § 2.2.14.26...................................................................24
b. Puglisi did not request exceptional circumstances review of her
request for an integrated standing feature. ...................................256
c. Koenning v. Suehs was vacated and dismissed as moot, therefore
Puglisi’s reliance on this case is misplaced. ..................................27
d. CMS policy letters and recent federal case law support exclusion of
mobile power standers....................................................................29
e. Puglisi’s Texas Government Code § 2001.038 rule challenge lacks
merit. ..............................................................................................30
i. Puglisi cannot maintain an action for declaratory relief. ............30
ii. Section 2001.038 allows suits for declaratory relief only before a
final order issues in a contested case. ......................................31
iii. Legal precedent confirms that declaratory relief is available to
challenge a rule in general but unavailable to alter the
application of a rule after the fact. ...........................................37
iv. The redundant remedies and separation-of-powers doctrines
negate Puglisi’s ability to bring a § 2001.038 claim in this
suit............................................................................................38
3. In this case, a power seat elevation system is not medically
necessary, appropriately documented, or prior authorized...............41
a. Puglisi failed to satisfy the requirements of medical necessity and
prior authorization for the requested power seat elevation
system. ............................................................................................43
b. Exceptional circumstances review for the requested power seat
elevation system is not required in this case. .................................44

iv
 F. Puglisi received adequate due process relating to Molina Healthcare’s
denial of her request for Group 4 power wheelchair, integrated standing
feature, and power seat elevation system. ....................................................44
1. Puglisi has no protected due process right to Home Health Services
program services because the program’s existing rules do not confer
a protected interest in Medicaid benefits to her................................45
2. Molina Healthcare’s denial notice is sufficient. ...............................46
3. The Reviewing Attorney fulfilled his statutory duties. ....................46
VIII. CONCLUSION & PRAYER ..........................................................................47
CERTIFICATE OF COMPLIANCE .......................................................................49
CERTIFICATE OF SERVICE ..........................................................................49
ACRONYMS ...........................................................................................................50
APPENDICES .........................................................................................................52

v
 INDEX OF AUTHORITIES

Cases
20801, Inc. v. Parker,
249 S.W. 3d 392 (Tex. 2008) .................................................................................6
All Saints Health Sys. v. Tex. Workers’ Comp. Comm’n,
125 S.W.3d 96 (Tex. App.—Austin 2003, pet. denied) .......................................36
Atmos Energy Corp. v. Cities of Allen,
353 S.W.3d 156, 160 (Tex. 2011) ..........................................................................6
Bd. of Regents v. Roth,
408 U.S. 564 (1972) .............................................................................................45
Beacon Nat’l Ins. Co. v. Montemayor,
86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.)..............................................38
BFI Waste Sys. v. Martinez Envtl. Grp.,
93 S.W.3d 570 (Tex. App.—Austin 2002, pet. denied) .......................................14
Charlie Thomas Ford v. A.C. Collins Ford,
912 S.W.2d 271 (Tex. App.—Austin 1995, writ dism’d) ............................. 34, 37
Chocolate Bayou Water Co. & Sand Supply v. Tex. Natural Res.
Conservation Comm’n, 124 S.W.3d 844 (Tex. App.—Austin 2003, pet.
denied) ..................................................................................................................37
City of El Paso v. Pub. Util. Comm’n,
883 S.W.2d 179, at 185 ......................................................................................3, 4
Dep’t of Pub. Safety v. Latimer,
939 S.W.2d 240 (Tex. App.—Austin 1997, no writ) .............................................3
Detgen ex. rel. v. Janek,
752 F.3d 627 (5th Cir. 2014) .................................................................................25
Detgen v. Janek,
945 F.Supp.2d 746, 759 (N. D. Tex. 2013) ..........................................................30
Envoy Med. Systems, v. State,
108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no pet.) ...................................14
Friends of Canyon Lake v. Guadalupe-Blanco River Auth.,
96 S.W.3d 519, 529 (Tex. App.—Austin 2002, pet. Denied) ....................... 32, 37
Galbraith Eng’g Consultants, Inc. v. Texas Citizens for a Safe Future &
Clean Water,
336 S.W.3d 619 (Tex. 2011) ..................................................................................6
HHSC v. El Paso County Hospital District,
351 S.W.3d 460 (Tex. App.—Austin, 2011), aff’d, 400 S.W.3d 72
(Tex.2013) ............................................................................................................36
Johnson v. Guhl,
91 F.Supp.2d 754 (D.N.J. 2000)...........................................................................46
vi
Keeter v. Tex. Dep’t of Agric.,
844 S.W.2d 901 (Tex. App.—Austin 1992, writ denied) ....................................31
KEM Tex. Ltd. v. Tex. Dep’t of Transp.,
No. 03-08-00468-CV, 2009 WL 1811102, at *6 n.6 (Tex. App.—Austin
June 26, 2009, no pet.) (mem. op.) .......................................................................37
Koenning v. Janek,
539 Fed.Appx. 353, (5th Cir. 2013) .....................................................................28
Koenning v. Suehs,
897 F.Supp.2d 528 (S.D. 2012) ..................................................................... 27, 28
Koenning v. Suehs,
Civil Action No. V-11-5, 2013 WL 6491075, at *1 (S.D. Tex. Dec. 9,
2013) .....................................................................................................................28
Liberty Mut. Ins. Co. v. Texas Dep't of Ins.,
187 S.W.3d 808, 827 (Tex. App.—Austin 2006, pet. denied) .............................45
Lopez v. Pub. Util. Comm’n,
816 S.W.2d 776, 782 (Tex. App.—Austin 1991, writ denied) ..................... 35, 38
Marks v. St. Luke’s Episcopal Hosp.,
319 S.W.3d 658 (Tex. 2010) ..............................................................................4, 6
McMillan v. Tex. Natural Res. Conservation Comm’n,
983 S.W.2d 359 (Tex. App.—Austin 1998, pet. denied) .....................................14
Meier Infinity Co. v. Motor Vehicle Bd.,
918 S.W. 2d 95 (Tex. App.—Austin 1996, writ denied) .......................................4
Neuwirth v. La. State Bd. of Dentistry,
845 F.2d 553 (5th Cir.1988) .................................................................................45
Northwestern Nal’t Cnty. Mut. Ins. Co. v. Rodriguez,
18 S.W.3d 718 (Tex.App.—San Antonio 2000, pet denied) .................................6
Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc.,
971 S.W.2d 439 (Tex. 1998) ......................................................................... 10, 11
Perry v. Del Rio,
66 S.W.3d 239 (Tex. 2001) ..................................................................................11
Public Util. Comm’n v. Gulf States Utils. Co.,
809 S.W.2d 201 (Tex. 1991) ..................................................................................7
R.R. Comm’n of Tex. v. Centerpoint Energy Res. Corp., et al.,
Nos. 03-13-00533-CV, 03-13-00534-CV, 03-13-00535-CV, 2014 WL
4058727, at *2 (Tex.App.—Austin Aug. 14, 2014, no pet.)................................10
Rutherford Oil Corp. v. Gen. Land Office,
776 S.W.2d 232 (Tex. App.—Austin 1989, no writ) ...........................................33
Star Houston, Inc. v. Tex. Dep’t of Transp.,
957 S.W.2d 103 (Tex. App.—Austin 1997, pet. denied) .....................................32

vii
State Bd. of Ins. v. Deffebach,
631 S.W.2d 794 (Tex. App.—Austin 1982, writ ref’d n.r.e.) ..............................33
Sw. Pharm. Solutions, Inc. v. THHSC,
408 S.W.3d 549 (Tex. App.—Austin 2013, pet. denied) .......................................6
SWEPI LP v. R.R. Comm’n,
314 S.W.3d 253, 269-270 (Tex.App.—Austin 2010, pet. Denied) .....................39
TAMU v. Hole,
194 S.W.3d 591 (Tex. App.—Waco, 2006, pet. denied) .....................................10
Tarrant Appraisal Dist. v. Moore,
845 S.W.2d 820 (Tex. 1993) ................................................................................13
Tenn. Gas Pipeline v. Rylander,
80 S.W.3d 200 (Tex. App.—Austin 2002, pet. denied) .......................................14
Tex. Comm’n of Licensing & Regulation v. Model Search Am., Inc.,
953 S.W.2d 289 (Tex. App.—Austin 1997, no writ) ...........................................40
Tex. Dep’t of Licensing & Regulation v. Roosters MGC, LLC,
No. 03-09-00253-CV, 2010 WL 2354064, at * 6 (Tex. App.—Austin
June 10, 2010, no pet.) (mem. op.) ................................................................ 34, 40
Tex. Gen. Indem. v. Tex. Workers' Comp. Comm'n,
36 S.W.3d 635 (Tex. App.—Austin 2000, no pet.)..............................................14
Tex. Health Facilities Comm’n v. Charter Med.-Dall.,
665 S.W.2d 446 (Tex. 1984) ..................................................................................4
Tex. Mun. Power Agency v. Pub. Util. Comm’n,
253 S.W.3d 184 (Tex. 2007) ..................................................................................4
Tex. Rivers Prot. Ass’n v. TNRCC,
910 S.W.2d 147 (Tex. App.—Austin 1995, writ denied) ......................................4
Tex. State Bd. of Med. Exam’rs v. Scheffey,
949 S.W.2d 431 (Tex. App.—Austin 1997, writ denied) ......................................3
Tex. Water Comm’n v. Dellana,
849 S.W.2d 808 (Tex. 1993) (per curiam) ...........................................................34
Texas Bd. of Chiropractic Exam’rs v. Texas Med. Ass’n,
375 S.W.3d 464 (Tex. App.--Austin 2012, pet. denied) ........................................7
TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432 (Tex. 2011) ..................................................................................7
Tobias v. Univ. of Tex. at Arlington,
824 S.W.2d 201 (Tex.App.—Fort Worth 1991, writ denied) ..............................46
Weyth v. Levine,
555 U.S. 555 S. Ct. 1187, 173 L.Ed.2d 51 (2009) .................................................7
Woody v. Dallas,
809 F.Supp. 466 (N.D.Tex. 1992) ............................................................... 45, 46

viii
Statutes
Tex. Gov’t Code § 311.021(2) .............................................................................6, 33
Tex. Gov’t Code § 311.023(1)-(5) .............................................................................6
Tex. Gov’t Code § 531.019......................................................................... 31, 35, 37
Tex. Gov’t Code § 531.019(c) (West 2004 and Supp. 2009) ..................................47
Tex. Gov’t Code § 531.019(e)(2) (West 2004 and Supp. 2009) .............................47
Tex. Gov’t Code § 531.019(g) (West 2000 & Supp. 2008) ......................................3
Tex. Gov’t Code § 531.021(a) ...............................................................................5, 6
Tex. Gov’t Code § 531.021(b)(2) (West 2012) .........................................................5
Tex. Gov’t Code § 531.021(d)(1) (West 2012) .........................................................5
Tex. Gov’t Code § 531.021(d)(2) (West 2012) .........................................................5
Tex. Gov’t Code § 2001.003(1) ...............................................................................33
Tex. Gov’t Code § 2001.003(6)(A) .........................................................................33
Tex. Gov’t Code § 2001.038............................................................................ passim
Tex. Gov’t Code § 2001.038(d) ...............................................................................34
Tex. Gov’t Code § 2001.038(e) ...............................................................................36
Tex. Gov’t Code § 2001.054....................................................................................32
Tex. Gov’t Code § 2001.171............................................................................ passim
Tex. Gov’t Code § 2001.174....................................................................................39
Tex. Gov’t Code § 2001.174(2)(D) .........................................................................39
Tex. Gov’t Code § 2001.174(D) ..............................................................................34
Tex. Gov’t Code § 2001.175............................................................................ passim
Tex. Hum. Res. Code § 32.021(a) .........................................................................5, 6
Tex. Hum. Res. Code § 32.021(c) (West 2001) ........................................................5
Tex. Hum. Res. Code § 32.050(b) .........................................................................2, 9
Texas Human Resources Code, Chapter 32...............................................................5
Other Authorities
42 C.F.R. § 430.10 .....................................................................................................5
42 U.S.C. § 1396 ........................................................................................................5
42 U.S.C. § 1396a(a)..................................................................................................5
42 U.S.C. § 1396b(a) .................................................................................................5
42 U.S.C. § 1396c ......................................................................................................5
42 U.S.C. § 1396d(b) .................................................................................................5
42 U.S.C. § 13896(b) .................................................................................................5
TMPPM § 2.2.2........................................................................................... 20, 21, 43
TMPPM § 2.2.14.12.................................................................................................19
TMPPM § 2.2.14.12.1..............................................................................................19
TMPPM § 2.2.14.12.5........................................................................... 19, 22, 23, 44
TMPPM § 2.2.14.15.1..............................................................................................42

ix
TMPPM § 2.2.14.15.2..............................................................................................42
TMPPM § 2.2.14.22.......................................................................................... 24, 25
TMPPM § 2.2.14.26......................................................................................... passim
TMPPM § 2.2.14.6 ...................................................................................................28
TMPPM § 2.2.14.6.2................................................................................................19
Rules
1 Tex. Admin. Code § 354.1031 ...................................................................... passim
1 Tex. Admin. Code § 354.1031(12) .......................................................................28
1 Tex. Admin. Code § 354.1035 ...................................................................... passim
1 Tex. Admin. Code § 354.1035(b) .....................................................................3, 16
1 Tex. Admin. Code § 354.1039 ...................................................................... passim
1 Tex. Admin. Code § 354.1039(a) ............................................................ 14, 17, 24
1 Tex. Admin. Code § 354.1039(a)(4).................................................................3, 16
1 Tex. Admin. Code § 354.1039(a)(4)(A) .................................................. 15, 18, 41
1 Tex. Admin. Code § 354.1039(a)(4)(D) .................................................. 23, 26, 44
1 Tex. Admin. Code § 354.1040 ...................................................................... passim
1 Tex. Admin. Code § 354.1040(d) .............................................................. 3, 16, 18
1 Tex. Admin. Code § 354.1040(e) .........................................................................18
1 Tex. Admin. Code § 354.1041 ............................................................................2, 9
1 Tex. Admin. Code § 357.19(e) .............................................................................47
1 Tex. Admin. Code § 357.703(5) ...........................................................................47
Other Authorities
13 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal
Practice & Procedure § 3532.1 at 136–37 (2d ed. 1984) .....................................11
DME MAC Jurisdiction C Supplier Manual, CGS: A Celerian Group
Company (Apr. 01, 2015).................................................................................9, 11

x
 CASE NO. 03-15-00226-CV

IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT
AT AUSTIN, TEXAS

Texas Health & Human Services Commission,
Appellant,
v.
Linda Puglisi,
Appellee.

On Appeal from Cause No. D-1-GN-14-000381
53rd Judicial District Court of Travis County, Texas,
Honorable Judge Gisela D. Triana Presiding.

APPELLANT’S BRIEF

TO THE HONORABLE JUDGE OF THIS COURT:

COMES NOW the Texas Health and Human Services Commission (HHSC)

and submits Appellant’s Brief.

I. STATEMENT OF THE CASE

United Seating & Mobility, Puglisi’s Durable Medical Equipment (DME)

provider, requested prior authorization for a Group 4 power wheelchair, an

integrated standing feature, and power seat elevation system. A.R. at 47–161.

Molina Healthcare of Texas (Molina Healthcare), Puglisi’s Medicaid Managed Care

Organization (MCO), denied her request for a Group 4 power wheelchair because it

was not medically necessary. A.R. at 42–46, Appendix 1. In addition, Molina

Healthcare denied Puglisi’s request for a mobile stander or integrated standing
feature because it was not a covered benefit and not medically necessary. A.R. at

27–46. Also, Molina Healthcare denied Puglisi’s request for a power seat elevation

system because it was not medically necessary.

Thereafter, Puglisi requested a fair hearing to contest the denial of United

Seating & Mobility’s request for prior authorization of DME. However, HHSC’s

Hearing Officer sustained Molina Healthcare’s decision to deny Puglisi’s request.

A.R. at 330–36, Appendix 2. After administrative review, the Reviewing Attorney

sustained the Hearings Officer’s order. A.R. at 339–47, Appendix 3. Also, the

Hearing Officer adopted the Reviewing Officer’s findings and conclusions. A.R.

at 339–47. Thereafter, on February 7, 2014, Puglisi sought judicial review of the

decisions. However, on May 1, 2014, Puglisi’s eligibility status changed and she

became qualified for Medicare services. C.R. at 261–262. Nevertheless, the trial

court denied HHSC’s Motion to Dismiss and issued its final judgment reversing and

remanding the case to HHSC. C.R. at 314, 348–49, Appendix 9 and Appendix 10.

II. ISSUES PRESENTED

1. Whether the case should be dismissed for lack of subject matter jurisdiction
because Medicare is the payor of first resort and Medicaid is the payor of last
resort pursuant to Tex. Hum. Res. Code § 32.050(b) and 1 TAC § 354.1041.

2. Whether the trial court should have remanded the Medicare eligibility issue
to HHSC to take additional evidence and hold an appropriate hearing pursuant
to Texas Gov’t Code § 2001.175.

3. Whether HHSC’s interpretation and application of Texas’ Medicaid
regulations and policies are entitled to more deference from the trial court.
2
 4. Whether the Hearing Officer’s and the Reviewing Attorney’s decisions are
consistent with federal and state law.

5. Whether substantial evidence supports the Hearing Officer’s Order and the
Reviewing Attorney’s Decision affirming Molina Healthcare’s denial of
Puglisi’s request because she failed to meet her burden to show that the Group
4 power wheelchair, integrated standing feature, and power seat elevation
system are medically necessary, appropriate, and prior authorized pursuant to
1 Tex. Admin. Code §§ 354.1035(b), .1039(a)(4), .1040(d).

6. Whether Puglisi received adequate due process relating to Molina
Healthcare’s denial of her request for a Group 4 power wheelchair, integrated
standing feature, and power seat elevation system.

III. STANDARD OF REVIEW

“Judicial review of a decision made by a hearing officer for the commission

or a health and human services agency related to public assistance benefits is under

the substantial evidence rule and is instituted by filing a petition with a district court

in Travis County, as provided by Subchapter G, Chapter 2001.” Tex. Gov’t Code

Ann. § 531.019(g) (West 2000 & Supp. 2008). Under this standard, the reviewing

court is concerned only with the reasonableness of the administrative order, not the

correctness of the order. The test for review of an agency decision is not whether

the agency reached the correct conclusion, but whether some reasonable basis exists

in the record for the agency’s action. City of El Paso v. Pub. Util. Comm’n, 883

S.W.2d 179, 185 (Tex. 1994); Tex. State Bd. of Med. Exam’rs v. Scheffey, 949

S.W.2d 431, 437 (Tex. App.—Austin 1997, writ denied); Dep’t of Pub. Safety v.

Latimer, 939 S.W.2d 240, 244 (Tex. App.—Austin 1997, no writ); Meier Infinity
3
Co. v. Motor Vehicle Bd., 918 S.W.2d 95, 98 (Tex. App.—Austin 1996, writ denied).

Puglisi has the burden of proof in her suit for judicial review. “[F]indings,

inferences, conclusions, and decisions of an administrative agency are presumed to

be supported by substantial evidence, and the burden is on the contestant to prove

otherwise.” Pub. Util. Comm’n, 883 S.W.2d at 185 (citing Tex. Health Facilities

Comm’n v. Charter Med.-Dall., 665 S.W.2d 446, 452–53 (Tex. 1984)). As long as

a properly supported finding given in the order supports an agency’s action, the court

will uphold the action despite the existence of other findings that are irrelevant or

unsupported by the record. Tex. Rivers Prot. Ass’n v. TNRCC, 910 S.W.2d 147,

155 (Tex. App.—Austin 1995, writ denied).

In addition, matters of statutory construction are reviewed de novo. Tex. Mun.

Power Agency v. Pub. Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007). In

construing a statute, a court applies the plain meaning of the text unless a different

meaning is supplied by legislative definition or is apparent from the context or the

plain meaning leads to absurd results. Marks v. St. Luke’s Episcopal Hosp., 319

S.W.3d 658, 663 (Tex. 2010).

IV. JUDICIAL DEFERENCE TO AGENCY INTERPRETATION

Medicaid Home Health Services is a part of the Texas Medicaid program.

The Texas Legislature has given HHSC broad discretion to “establish methods of

administration and adopt necessary rules for the proper and efficient operation of the

4
program.” Tex. Hum. Res. Code § 32.021(c) (West 2001). Additionally, the

Texas Legislature has given HHSC broad discretion to “adopt reasonable rules and

standards governing the determination of fees, charges, and rates for medical

assistance payments under Chapter 32, Human Resources Code, in consultation with

the agencies that operate the Medicaid program.” Tex. Gov’t Code § 531.021(b)(2)

(West 2012). Further, “[i]n adopting rules and standards required by Subsection

(b)(2), the commission may provide for payment of fees, charges, and rates in

accordance with: (1) formulas, procedures, or methodologies prescribed by the

commission rules; (2) applicable state or federal law, policies, rules, regulations, or

guidelines.” Tex. Gov’t Code § 531.021(d)(1), .021(d)(2) (West 2012). In a recent

opinion, the Third Court of Appeals described the cooperative nature of the Texas

Medicaid program as follows:

Medicaid is a cooperative federal-state program that provides health
care to needy individuals. See generally 42 U.S.C. §§ 1396–96w
(Grants to States for Medical Assistance Programs). While federal law
establishes Medicaid’s basic parameters, each state decides the nature
and scope of its Medicaid program and submits a State plan describing
its program to the federal Center for Medicare and Medicaid Services,
which must approve the plan and any amendments. See 42 U.S.C.
§ 1396a(a), 13896(b); 42 C.F.R. § 430.10. The federal government
agrees to pay a specified percentage of a state’s expenditures for
covered services provided by the state under an approved State plan.
See 42 U.S.C. §§ 1396b(a), 1396c, 1396d(b). . . . In Texas, HHSC is
the agency designated to administer federal medical assistance
programs, including Medicaid. See Tex. Hum. Res. Code § 32.021(a);
Tex. Gov’t Code § 531.021(a).

5
See Sw. Pharm. Solutions, Inc. v. THHSC, 408 S.W.3d 549, 552 (Tex. App.—Austin

2013, pet. denied). Like the plaintiff in Southwest Pharmacy, Puglisi is asking this

Court to construe the Medicaid statutes, rules, policies, and procedures that HHSC

is responsible for implementing in Texas.

Furthermore, the Third Court of Appeals described the “rules of construction”

as follows:

Of primary concern is the express statutory language. See Galbraith
Eng’g Consultants, Inc. v. Texas Citizens for a Safe Future & Clean
Water, 336 S.W.3d 619, 624 (Tex. 2011). We apply the plain meaning
of the text unless a different meaning is supplied by legislative
definition or is apparent from the context of the plain meaning leads to
absurd results. Marks v. Luke’s Episcopal Hosp., 319 S.W.3d 658, 663
(Tex. 2010). “We generally avoid construing individual provisions of
a statute in isolation from the statute as a whole [,]” Texas Citizens, 336
S.W.3d at 628, we must consider a provisions’ role in the broader
statutory scheme, see 20801, Inc. v. Parker, 249 S.W. 3d 392, 396 (Tex.
2008), and we presume that “the entire statute is intended to be
effective[,]” Tex. Gov’t Code § 311.021(2). A court may consider the
law’s objective; the circumstances under which the statute was enacted;
legislative history; former statutory provisions; and the consequences
of a particular construction when construing statutes, whether or not the
statute is ambiguous. Tex. Gov’t Code § 311.023(1)-(5); Atmos
Energy Corp. v. Cities of Allen, 353 S.W.3d 156, 160 (Tex. 2011).
“Construction of a statute must be consistent with its underlying
purpose and the policies it promotes.” Northwestern Nal’t Cnty. Mut.
Ins. Co. v. Rodriguez, 18 S.W.3d 718, 721 (Tex.App.—San Antonio
2000, pet denied).

Here, we must construe statutes and rules that HHSC is charged with
administering. See Tex. Hum. Res. Code § 32.021(a); Tex. Gov’t
Code § 531.021(a). “[A]n agency’s interpretation of a statute it is
charged with enforcing is entitled to ‘serious consideration,’ so long as
the construction is reasonable and does not conflict with the statute’s
language.” Texas Citizens, 336 S.W.3d at 624. When a statutory
6
 scheme is subject to multiple interpretations, we must uphold an
enforcing agency’s construction if it is reasonable and in harmony with
the statute. Id. at 629 (observing that “governmental agencies have a
‘unique understanding’ of the statutes they administer”) (quoting Weyth
v. Levine, 555 U.S. 555, 129 S. Ct. 1187, 173 L.Ed.2d 51 (2009)). This
deference is particularly important in construing a complex statutory
scheme like that governing Texas Medicaid. See id. at 629-30. We
construe administrative rules in the same manner as statutes. TGS-
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).
We defer to an agency’s interpretation of its own rules unless it is
plainly erroneous or contradicts the text of the rule or underlying
statute. Public Util. Comm’n v. Gulf States Utils. Co., 809 S.W.2d
201, 207 (Tex. 1991); Texas Bd. of Chiropractic Exam’rs v. Texas Med.
Ass’n, 375 S.W.3d 464, 475 (Tex. App.--Austin 2012, pet. denied).

See Sw. Pharm. Solutions, 408 S.W.3d at 557–58. In this instance, HHSC’s

interpretation of 1 Tex. Admin. Code (TAC) §§ 354.1035, .1039, and .1040, as

expressed in the Texas Medicaid Providers Procedures Manual (TMPPM), should

be upheld because its interpretation is reasonable and does not conflict with state and

federal statutes, regulations, policies and guidance. Appendix 4 and Appendix 5.

V. FACTS OF THE CASE

Appellant adopts the Findings of Fact as set forth in the Hearings Officer’s

Order and the Reviewing Attorney’s Decision. A.R. at 333–34, 344–46, Appendix

2 and Appendix 3. Essentially, Molina Healthcare denied Puglisi’s request for a

Group 4 power wheelchair because it was not medically necessary. In addition, the

Hearing Officer concluded that the integrated standing feature was not medically

necessary and was not a covered benefit. Also, the Hearing Officer determined that

the power seat elevation system was not medically necessary. After considering the
7
evidence in the record, the factual findings, and applicable law, the Hearing Officer

decided that “therefore, Molina Healthcare’s action to deny a group 4 power

wheelchair with an integrated standing feature is SUSTAINED.” A.R. at 334, 346,

Appendix 3. In addition, the Reviewing Attorney determined that “[t]he record

reflects that Molina properly denied Appellant’s request for a Group 4 custom power

wheelchair with an integrated standing feature and power seat elevation system in

accordance with applicable law and policy.” A.R. at 347, Appendix 4.

VI. SUMMARY OF THE ARGUMENT

This case should have been dismissed for lack of subject matter jurisdiction

or remanded to the agency to take and adjudicate additional evidence regarding

Puglisi’s dual eligibility status. Regardless, the Hearing Officer and Reviewing

Attorney correctly affirmed Molina Healthcare’s denial of Puglisi’s request for a

Group 4 power wheelchair, the integrated standing feature, and the power seat

elevation system based on substantial evidence in the record as well as the proper

interpretation and application of applicable agency rules, policies, and procedures.

In total, Puglisi has received all the process that she was due. Therefore, the trial

court’s judgment should be: (a) reversed because the trial court lacks subject matter

jurisdiction, (b) reversed because Molina Healthcare’s and HHSC’s decisions are

supported by substantial evidence, or (c) remanded to Molina Healthcare and HHSC

to take additional evidence pursuant to Tex. Gov’t Code § 2001.175.

8
 VII. ARGUMENT AND AUTHORITIES

A. Since Medicaid is the payor of last resort and Medicare is the payor of
first resort, Puglisi’s dual eligible status requires her to seek prior
authorization via the CMS Medicare DME process before seeking prior
authorization for Medicaid services. Therefore, this suit is no longer ripe
for adjudication.

The Court erred in concluding “this DME item” must receive prior

authorization from Texas Medicaid. C.R. at 348–49. Since Puglisi has acquired

dual eligible status, she must present her request for DME through the Centers for

Medicare and Medical Services (CMS) Medicare DME preauthorization process.

See Affidavit of Daneen Machicek, C.R. at 269–70. Specifically, Texas law

requires HHSC to analyze claims submitted under Medicaid to ensure claims are

submitted first under Medicare to the extent allowed by law. Tex. Hum. Res. Code

§ 32.050(b) (West 2013), C.R. at 271. Medicare is the primary payor when a person

is eligible for both Medicaid and Medicare. 1 TAC § 354.1041, C.R. at 273. The

CMS Medicare DME preauthorization process is described in the Durable Medical

Equipment Medicare Administrative Contractor (DME MAC) Jurisdiction C

Supplier Manual. C.R. at 285–313, Appendix 11. The Celerian Group Company

(CGC) is the DME MAC for Jurisdiction C, which includes Texas, that was selected

by CMS to process Durable Medical Equipment, Prosthetics, Orthotics, and Supplies

(DMEPOS) claims for the Medicare program. C.R. at 292.

9
 1. This suit is not ripe because of Puglisi’s dual eligibility status.

Puglisi affirms that her new Medicare-Medicaid status is Medicaid Qualified

Medicare Beneficiary (MQMB). For MQMB recipients, Medicare is the primary

payor for DME authorized via the CMS Medicare prior authorization process. See

Affidavit of Daneen Machicek, C.R. at 269–70. In this instance, Puglisi’s new dual

eligible status requires her to seek assistance under Medicare before seeking

assistance under Medicaid. Puglisi’s new dual eligible status is a significant

intervening event that renders the underlying issues of this suit unfit for judicial

review and also alleviates any contingent or hypothetical hardship that Puglisi may

experience in the absence of a judicial decision at this time.

The ripeness doctrine should be applied to the post-filing circumstances or

intervening events that have occurred in this case. “Ripeness is a threshold issue

that implicates subject-matter jurisdiction and emphasizes the need for a concrete

injury.” TAMU v. Hole, 194 S.W.3d 591, 593 (Tex. App.—Waco, 2006, pet.

denied)(citing Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 971

S.W.2d 439, 442 (Tex. 1998)). In this case, the ripeness issue must account for

significant “intervening events” or “post-filing circumstances” that have occurred

after the initial suit was filed. See R.R. Comm’n of Tex. v. Centerpoint Energy Res.

Corp., et al., Nos. 03-13-00533-CV, 03-13-00534-CV, 03-13-00535-CV, 2014 WL

4058727, at *2 (Tex.App.—Austin Aug. 14, 2014, no pet.) (“Ripeness should be

10
decided on the basis of all the information available to the court, and we may

consider intervening events that occur after the decision in the lower court.”)(citing

Perry v. Del Rio, 66 S.W.3d 239, 250 (Tex. 2001)); 13 Charles Alan Wright, Arthur

R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3532.1 at 136–37

(2d ed. 1984); Patterson, 971 S.W.2d at 442.

2. Medicare has its own preauthorization process.

Puglisi declared that “Medicare does not require prior authorization for

DME.” See Plaintiff’s Response In Opposition To Defendant’s Motion To

Dismiss, FN6, p.8, C.R. at 254. However, the CMS Medicare DME

preauthorization process is described in the DME MAC Jurisdiction C Supplier

Manual. C.R. at 285–313, Appendix 11. The CGC is the DME MAC for

Jurisdiction C, which includes Texas, which was selected by CMS to process

DMEPOS claims for the Medicare program. C.R. at 285–313; DME MAC

Jurisdiction C Supplier Manual, CGS: A Celerian Group Company (Apr. 01, 2015),

http://cgsmedicare.com/jc/pubs/supman/. Since Puglisi has acquired dual eligible

status, she is required to avail herself to the CMS Medicare prior authorization

process and procedure in the first instance.

11
B. The trial court erred in failing to remand pursuant to Tex. Gov’t Code
§2001.175 based on Puglisi’s dual eligible status.

The trial court’s order states that “this matter is hereby REVERSED and

REMANDED back to the Texas Health and Human Services for further proceedings

consistent with [this] decision, including any other required determinations related

to Medicare and Medicaid issues not currently before the Court.” C.R. at 348. The

“REVERSAL” component of the order, however, is in conflict with the “REMAND”

component. Specifically, the court’s order does account for the undisputed fact

Puglisi is now dually eligible for both Medicare and Medicaid. Even though the

undisputed evidence of Puglisi’s dual eligible status was presented to the trial court

during the hearing on the motion to dismiss and was presented in our objections to

the trial court’s letter ruling in the trial on the merits, the trial court failed to consider

Puglisi’s dual eligible status in the context of the suit for judicial review. At a

minimum, the trial court’s rulings should include a determination as to whether

Puglisi’s dual eligibility status is material to the determination of whether she is

required to request the DME from CMS’s Medicare DME MAC in the first instance.

If the trial court had properly considered the significance of Puglisi’s dual eligibility,

the trial court should have simply remanded the case to HHSC without adjudicating

unripe issues relating to coverage, reimbursement, medical necessity,

appropriateness, and prior authorization.

12
 Since the dual eligibility issue is material to this case and occurred after the

administrative review, the trial court should “order that the additional evidence be

taken before the agency on conditions determined by the court” pursuant to Tex.

Gov’t Code § 2001.175. In summary, Molina Healthcare, the entity that made the

initial determination, and the administrative tribunal, in its appellate role, should

have been given the opportunity to “change its findings and decision by reason of

the additional evidence” relating to dual eligibility pursuant to Tex. Gov’t Code

§ 2001.175. The issue of dual eligibility is material and good reasons exist to

explain why the evidence of dual eligibility was not presented to the administrative

tribunal.

C. Puglisi’s suit for judicial review is not meritorious and HHSC’s decision
affirming Molina Healthcare’s decision should not have been reversed.

The trial court’s judgment states that “Plaintiff’s appeal is meritorious and

Defendant’s administrative decision should be reversed.” C.R. at 348. This

statement, however, is erroneous because the trial court has not given any deference

to HHSC’s interpretation of Texas Medicaid DME regulations that HHSC has the

responsibility to administer on behalf of the truly needy individuals in Texas. It has

long been the rule that “[c]onstruction of a statute by the administrative agency

charged with its enforcement is entitled to serious consideration, so long as the

construction is reasonable and does not contradict the plain language of the statute.”

See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993); see also
13
Envoy Med. Systems, v. State, 108 S.W.3d 333, 337 (Tex. App.—Austin 2003, no

pet.) (explaining that an -administrative agency has the power to interpret its own

rules and that interpretation is entitled to deference by a court called upon to interpret

or apply such rules); BFI Waste Sys. v. Martinez Envtl. Grp., 93 S.W.3d 570, 575

(Tex. App.—Austin 2002, pet. denied)(finding that because an agency's

interpretation represents the view of the regulatory body that drafted and administers

the rule, the interpretation actually becomes a part of the rule itself); Tenn. Gas

Pipeline v. Rylander, 80 S.W.3d 200, 203 (Tex. App.—Austin 2002, pet.

denied)(illustrating greater deference given to an interpretation that is longstanding

and applied uniformly); Tex. Gen. Indem. v. Tex. Workers' Comp. Comm'n, 36

S.W.3d 635, 641 (Tex. App.—Austin 2000, no pet.)(stating that an agency's

construction of its rule is controlling unless it is plainly erroneous or inconsistent);

McMillan v. Tex. Natural Res. Conservation Comm’n, 983 S.W.2d 359, 362 (Tex.

App.—Austin 1998, pet. denied)(stating that the agency interpretation becomes part

of the rule itself and represents the view of a regulatory body that must deal with the

practicalities of administering the rule).

Instead of giving due deference, the trial court’s final judgment essentially

negates or nullifies HHSC’s interpretation and application of the Texas Medicaid

DME regulations, including but not limited to the following:

1 TAC § 354.1039(a) . . . Home Health Services Benefits and
Limitations - “The State determines authorization requirements and
14
 limitations for covered home health service benefits. The home health
agency is responsible for obtaining prior authorization where specified
for the healthcare service, supply, equipment, or appliance. [Emphasis
Added];

1 TAC § 354.1039(a)(4)(A) . . . DME must (i) be medically necessary
and the appropriateness of the . . . equipment, or appliance prescribed
by the physician for the treatment of the individual recipient and
delivered in his place of residence must be documented in the plan of
care and/or the request form. (ii) be prior authorized unless otherwise
specified by the department; . . . [Emphasis Added].

D. HHSC’s decision affirming Molina Healthcare’s decision complies with
applicable state and federal Medicaid regulations, therefore, the
decisions are not arbitrary, capricious, or unreasonable.

The trial court erred in finding “that the Commissions’ decision fails to

comply with the controlling and applicable federal and state law, and thus is

arbitrary, capricious, and unreasonable.” C.R. at 348. In this case, Molina

Healthcare and HHSC’s decisions comply with 1 TAC §§ 354.1031, .1035, .1039,

and .1040 as well as applicable Texas Medicaid Provider Procedures, which

establish and explain the “authorization requirements” and “limitations” for Group

4 power wheelchairs, mobile standers, and power seat elevation systems. In fact,

Puglisi failed to satisfy the requirements of applicable agency regulations, which

unequivocally provide that covered and reimbursable DME must be medically

necessary, that the appropriateness of the DME must be documented in the request

form, and that the home health agency must obtain prior authorization. 1 TAC

§ 354.1039(a)(4)(A).

15
E. Substantial evidence supports HHSC’s decisions because Puglisi failed to
meet her burden to show that the Group 4 power wheelchair, integrated
standing feature, and power seat elevation system are medically
necessary, that their appropriateness has been properly documented, or
that Puglisi has obtained prior authorization pursuant to 1 TAC
§§ 354.1035(b), .1039(a)(4), and .1040(d).

In its judgment, the trial court “finds that the Commission’s decision to deny

Medicaid coverage for the DME custom power wheelchair with an integrated

standing feature as recommended by her treating medical providers, because

Plaintiff has not demonstrated medical necessity, is also not supported by substantial

evidence and Plaintiff has established her entitlement based on medical necessity

under that applicable law.” C.R. at 348. The trial court’s finding shows that it

utilized a truncated one-part test to determine Puglisi’s eligibility for the requested

DME. However, Medicaid rules and provider procedures require application of a

multi-part test. Specifically, the applicable rules and procedures provide: (a) that

the DME must be covered DME, (b) that the DME must be reimbursable DME, (c)

that the DME must be medically necessary, (d) that the appropriateness of the DME

must be properly documented in the request form, and (e) that the DME must receive

prior authorization. In this case, the trial court discarded crucial parts of the correct

multi-part test. In other words, the trial court failed to consider whether the

requested DME was covered, reimbursable, appropriate, and prior authorized.

Puglisi asserts that “an individualized determination of DME coverage must

be made by ascertaining whether the requested item of medical equipment meets the
16
state’s definition of DME.” C.R. at 57. However, Puglisi’s definition of the scope

of DME coverage is truncated and otherwise inconsistent with the much broader

scope of coverage for DME described in 1 TAC §§ 354.1031, .1035, .1039, and

.1040 as well as applicable Texas Medicaid Provider Procedures. Appendix 4 and

Appendix 5. Hence, the salient question is whether Puglisi is required to satisfy all

or only part of the regulatory prerequisites necessary to acquire the requested DME.

In this case, Puglisi is required to satisfy all of the necessary prerequisites. As such,

the trial court should have applied the correct multi-part test but failed to do so.

Accordingly, 1 TAC § 354.1039(a) provides that “[t]he State determines

authorization requirements and limitations for covered home health service

benefits.” (emphasis added). All of HHSC’s DME rules and procedures are

consistent with Centers for Medicare and Medicaid Service (CMS) policy on DME

coverage as articulated in the May 21, 2013 letter from CMS to HHSC. A.R. at

303. HHSC’s DME rules and procedures are also consistent with CMS policy on

DME coverage that is described in the Desario Letter dated September 4, 1998.

Appendix 6. As a result, a plain reading of applicable agency rules and provider

procedures show that just because a given item meets the Puglisi’s narrowly defined

scope of coverage for DME does not also mean: (a) that the item is covered DME,

(b) that the item is reimbursable DME, (c) that the item is medically necessary, (d)

that the appropriateness of the item is properly documented in the request form, or

17
(e) that the item has received prior authorization.

1. Although the Group 4 custom power wheelchair is a covered DME
Medicaid home health benefit, it is not medically necessary, its
appropriateness has not been properly documented, or Puglisi has not
obtained prior authorization in this case.

There is no dispute that a Group 4 power wheelchair is a covered Medicaid

home health benefit in Texas. Specifically, 1 TAC §§ 354.1031, .1035, .1039, and

.1040 as well as applicable Texas Medicaid Provider Procedures establish and

explain the “authorization requirements” and “limitations” for Group 4 power

wheelchairs. Accordingly, applicable agency rules unequivocally provide that

covered and reimbursable DME must be medically necessary, that the

appropriateness of the DME must be documented in the request form, and that the

requestor must obtain prior authorization. 1 TAC § 354.1039(a)(4)(A). In

addition, the DME supplier must receive prior authorization from HHSC. 1 TAC

§ 354.1040(d). Furthermore, prior authorization requires that the DME supplier

submit documentation, “in a manner approved by HHSC or its designee” for a Group

4 power wheelchair that consists of the physician’s prescription, documentation of

medical need, a clinical assessment, and “[a]ny other documentation deemed

necessary by HHSC or its designee to adequately explain the medical necessity of

the requested equipment.” 1 TAC § 354.1040(e).

18
 Moreover, the Texas Medicaid Provider Procedures Manual (TMPPM),

consistent with the dictates of the “Desario Letter,” describes “reasonable and

specific criteria” for medical necessity, proper documentation, and prior

authorization of power wheelchairs. Specifically, TMPPM § 2.2.14.6.2 shows that

prior authorization for a power wheelchair is predicated on “proper documentation

supporting medical necessity and an assessment of the accessibility of the client’s

residence.” Appendix 5, DM-62. In addition, TMPPM § 2.2.14.6.2 describes the

documentation necessary to demonstrate medical necessity for a power wheelchair.

Appendix 5, DM-62. Also, TMPPM § 2.2.14.12 describes the power wheelchair

and its standard components. Appendix 5, DM-68. Furthermore, the prior

authorization requirements specified in TMPPM § 2.2.14.12.1 describe the

additional documentation required to demonstrate that the client can operate and care

for a custom power wheelchair. Appendix 5, DM-69. And, TMPPM § 2.2.14.12.5

lists more requirements for Group 4 power wheelchairs, as well as additional prior

authorization and documentation criteria. Appendix 5, DM-71. In particular,

TMPPM § 2.2.14.12.5 requires Puglisi to show when, where, and how she will be

using the Group 4 power wheelchair to perform certain Mobility Related Activities

of Daily Living (MRADLs) outside her home on a routine basis. Appendix 5, DM-

71.

Based on the evidence presented by Molina Healthcare and Puglisi in the

19
administrative record, the Hearing Officer determined that “Appellant was able to

maneuver a power wheelchair group 3 independently during the hearing.” A.R. at

334. In addition, the Reviewing Attorney determined that “Appellant presented

insufficient evidence that she would (a) routinely use the requested Group 4 power

wheelchair for mobility-related activities of daily living outside her home, (b)

routinely use the requested Group 4 wheelchair on rough or uneven surfaces, and (c)

encounter obstacles in excess of 2.25 inches.” A.R. at 345-46.

a. A Group 4 PMD is not medically necessary to correct or
ameliorate Puglisi’s medical need for mobility and
independence.

“Texas Medicaid defines DME as: Medical equipment or appliances that are

manufactured to withstand repeated use, ordered by a physician for use in the home,

and required to correct or ameliorate a client’s disability, condition, or illness.”

TMPPM § 2.2.2., Appendix 5, DM-13. Additionally, the TMPPM states the

following:

Since there is not single authority, such as a federal agency, that confers
the official status of “DME” on any device or product, HHSC retains
the right to make such determinations with regard to DME benefits of
Texas Medicaid. DME benefits of Texas Medicaid must have either a
well-established history of efficacy or, in the case of novel or unique
equipment, valid, peer-reviewed evidence that the equipment corrects
or ameliorates a covered medical condition or functional disability.

TMPPM § 2.2.2., Appendix 5, DM-13. This section of the TMPPM appears to

20
define medical necessity to mean that requested DME is “required to correct or

ameliorate a client’s disability, condition, or illness.” In other words, the requested

DME cannot be requested as matter of convenience.

In contrast, Puglisi’s description of medical necessity for the mobility base is

that it is “required to enable functions of the wheelchair as a whole and thus allow

Linda to maneuver within her home independently in a safe and reliable manner.”

A.R. at 190. However, a review of the administrative record shows that Molina

Healthcare determined that Puglisi failed to satisfy criteria to demonstrate medical

necessity for the Group 4 power wheelchair. Specifically, the record shows that

Molina Healthcare made a determination as follows:

This request for a Group 4 custom power wheelchair cannot be
approved. The group 4 power chair is requested in order to
accommodate the Power Stand and Drive function; E2301 Power stand
and drive feature is not considered medically necessary because driving
standing up is not a medical necessity. In addition, HCPC code E2301
is not a TMHP payable code/covered benefit. A dynamic stander can
be requested with submission of appropriate clinical information. A
group 4 power wheelchair cannot be approved because a Group 3 power
wheelchair will meet the member’s needs for mobility and
independence.

A.R. at 27. Also, Molina Healthcare stated that “[t]his request of a custom power

wheelchair cannot be approved because criteria for Medical Necessity are not met.”

A.R. at 57. Molina Healthcare’s Rehab Review notes state the following:

The difference between the grp 3 & 4 are very specifically for rugged
21
 outdoor use and not necessarily a medical necessity. They have
additional capabilities that are not necessary for in home use. The
requested power stander only comes with a group 4 PMD. But if the
specific advantages of the group 4 are not a medical necessity it is
recommended that this be down coded to a group 3 K0861.

A.R. at 140. Additionally, Molina Healthcare states that the “Group 4 Power

Mobility Device (PMD) K0884 cannot be approved because a Group 3 power

wheelchair will meet the member’s needs for mobility and independence; . . . .”

A.R. at 167. Moreover, Molina Healthcare asked Puglisi to “[p]lease replace the

group4 PMD with a group3 PMD. As the group 3 PMD will accommodate all the

listed medical needs for Linda.” A.R. at 201.

b. Puglisi’s documentation failed to satisfy the prior authorization
criteria described in TMPPM § 2.2.14.12.5.

When asked to describe the medical necessity for the Group 4 power

wheelchair and power seat elevation system, Puglisi responded that “Permobile

C500 VS Stander power mobility base, required to enable functions of the

wheelchair as a whole and thus allow Linda to maneuver within her home

independently in a safe and reliable manner.” (Emphasis added) A.R. at 190. In

addition, when asked to describe the medical necessity for the Group 4 power

wheelchair versus a manual wheelchair, Puglisi replied that “[w]ith a power seating

system of this kind, Linda will be able to provide for her mobility and functional

needs to access items and perform ADL and household tasks in a safe and effective

manner.” (Emphasis added) A.R. at 193. In short, Puglisi’s documentation failed
22
to address the prior authorization criteria described in TMPPM § 2.2.14.12.5.

Appendix 5, DM-71. As a result, Molina Healthcare could not approve Puglisi’s

request for a Group 4 power wheelchair.

c. Exceptional circumstances review of Puglisi’s request for a
group 4 power wheel chair is not required because it is listed
DME.

Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Specifically, power wheelchairs (code number K0884) are

listed. See TMPPM § 2.2.14.26, Appendix 5, DM-84. Exceptional circumstances

review, therefore, was not warranted in this case because power wheelchairs are

listed as covered DME.

2. The integrated standing feature is not a covered reimbursable benefit,
therefore, it should not be considered medically necessary,
appropriate, or prior authorized.

Puglisi asserts that certain “state definitions of wheeled mobility systems

establish the scope of Medicaid coverage of custom power wheelchairs and do not

authorize the exclusion of custom wheelchair components that may be medically

necessary for individuals with certain disabilities or medical conditions.” C.R. at

59. Puglisi’s assertion is based on two significant assumptions. Specifically,

Puglisi incorrectly assumes that the integrated standing feature is a covered and

reimbursable benefit. In addition, Puglisi erroneously assumes that, even if it were

deemed a covered reimbursable benefit, the integrated standing feature would be

23
medically necessary, appropriate, and prior authorized.

Regardless, TMPPM § 2.2.14.22 provides a less costly, yet equally effective,

alternative to the excluded mobile power stander. Appendix 5, DM-78. TMPPM

§ 2.2.14.22 provides as follows:

A stander is a device used by a client with neuromuscular conditions
who is unable to stand alone. Standers and standing programs can
improve digestion, increase muscle strength, decrease contractures,
increase bone density, and minimize decalcification (this list is not all
inclusive).

Appendix 5, DM-78. It is no small coincidence that the fact that the benefits

associated with the stand-alone dynamic stander are similar to the alleged benefits

associated with the mobile stander. The significant difference, however, is that the

stand-alone dynamic stander is on the list for covered DME whereas the mobile

stander is on the list of DME excluded from coverage. Therefore, Puglisi should

have requested the stand-alone dynamic stander to meet her medical mobility needs.

a. Mobile power standing systems are not a covered benefit
pursuant to TMPPM § 2.2.14.26.

Pursuant to its regulatory authority under 1 TAC § 354.1039(a), HHSC has

determined that mobile standers are not a covered benefit. Specifically, TMPPM

§ 2.2.14.26 provides that “. . . [m]obile standers, power standing systems on a

wheeled mobility . . .” are not a benefit of Home Health Services. Appendix 5, DM-

89. Accordingly, Molina Healthcare denied Puglisi’s request for the integrated

standing feature. A.R. at 27. In addition, the Hearing Officer adopted the
24
Reviewing Attorney’s conclusion that “[b]ecause power standers on wheeled

mobility systems are specifically excluded from coverage under Texas Medicaid

Home Health Services, Molina’s decision to deny the requested Group 4 power

wheelchair with an integrated standing feature was supported by the facts and

applicable laws, procedures, and program rules.” A.R. at 349.

Regardless, TMPPM § 2.2.14.22 provides a less costly, yet equally effective

alternative to the excluded mobile power stander. Appendix 5, DM-78. As to the

reasonableness of HHSSC’s categorical exclusion of certain DME (i.e. ceiling lifts),

the Fifth Circuit recently stated the following:

It is hardly unreasonable for a state to exclude—even categorically—
any medical device whose purpose can be served by a more cost-
effective method. Not only has Texas not violated the plain language
of the statute, but also the reasonableness standard in the text likely
supports its imposition of reasonable categorical exclusions. The
plaintiffs’ notion that it would be unreasonable for a state not to provide
particular equipment within its definition of DME sounds plausible,
except that the state can choose by definition to exclude ceiling lifts.
FN6. Moreover, a categorical exclusion based on the availability of
cost-effective alternatives cannot mean that the state has denied a
medically necessary device, even if the statute did impose such a
standard.

Detgen ex. rel. v. Janek, 752 F.3d 627, 632 (5th Cir. 2014) (Medicaid recipient

brought suit against HHSC challenging the denial of their request for the installation

of ceiling lifts to transfer the recipient to and from bed, bath, etc.). See Appendix 8.

b. Puglisi did not request exceptional circumstances review of her
25
 request for an integrated standing feature.

Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Arguably, mobile power standers are listed as excluded from

DME coverage. See TMPPM § 2.2.14.26, Appendix 5, DM-89. Hence,

exceptional circumstances review may not be warranted in this case because mobile

power standers are listed as excluded non-reimbursable DME.

On the other hand, even if mobile power standers are considered to be unlisted

DME, the record shows that Molina Healthcare determined that the mobile stander

was not medically necessary. Specifically, Molina Healthcare’s Rehab Reviewer

states the following:

The provider has offered very detailed benefits of standing. They note
that the member is unable to reap these benefits unless they have the
stander on their chair to go with them everywhere. Having a separate
stander would provide great benefits in standing as would its inclusion
on the power chair Most plans will provide the least costly alternative
and that would be to provide a separate standing device. This final
decision is up to Molina to interpret.

A.R. at 140. Accordingly, Molina Healthcare’s Nurse Review states the following

interpretation:

Request for E2301 should be denied as this is not a tmhp payable code,
the vendor should possibly resubmit for an independent stander if
deemed necessary. As the standing feature with code e2301 is not
available mbr could be downgraded to the group 3 pwc instead of the
group 4 as requested.

A.R. at 141. Hence, Molina Healthcare’s Medical Doctor concluded as follows:

26
 The group 4 power chair is requested in order to accommodate the
Power Stand and Drive function; E2301 Power stand and drive feature
is not considered medically necessary because driving standing up is
not a medical necessity. In addition, HCPC code E2301 is not a
TMHP payable code/covered benefit.

A.R. at 144. Based on statements of Molina Healthcare’s Rehab Review, Nurse

Review, and Medical Doctor Review, the Hearing Officer determined the following:

On or about June 4, 2013, Molina Healthcare forwarded the DME
request to Rehab Review for a third party review for medical necessity
of the DME requested. Rehab Review is a Rehabilitation Engineering
and Assistive Technology Society (RESNA) certified entity contracted
to conduct independent reviews for medical necessity of DME.

...

Appellant requires maximum assistance with all activities of daily
living including transfers. Appellant requires caregiver assistance to
transfer in and out of her bed and wheelchair.

Molina healthcare recommended approval of a group 3 power
wheelchair with a stand-alone dynamic stander to meet the Appellant’s
needs; however Appellant is unable to transfer independently and
would require assistance from one or two caregivers to transfer to the
dynamic stander.

A.R. at 334. Puglisi needs maximum assistance from her caregivers for all

MRADLs. Therefore, a mobile stander is not medically necessary to correct or

ameliorate Puglisi’s disability, condition, or illness, given that her caregivers are

already assisting her with all transfers and standing.

c. Koenning v. Suehs was vacated and dismissed as moot, therefore
Puglisi’s reliance on this case is misplaced.

27
 Nevertheless, Puglisi asserts that the integrated standing feature should be a

covered benefit merely because its meets the general definitions of DME described

in 1 TAC § 354.1031(12) and TMPPM § 2.2.14.6. But, Puglisi relies on a vacated

opinion and judgment to support her erroneous proposition. See Koenning v. Suehs,

897 F.Supp.2d 528, 549 (S.D. 2012), vacated and dismissed as moot, Koenning v.

Janek, 539 Fed.Appx. 353, (5th Cir. 2013). Appendix 7. In Koenning v. Suehs,

the Court states the following:

The district court opinion and judgment contain meaningful errors.
For example, the district court opinion incorrectly states that Texas law
does not provide for state court review of adverse administrative
hearing decisions. The district court opinion and judgment also
purport to ‘remand’ the case to a non-state, non-party entity (namely,
THMP [sic]) however, the parties agree that such a remand is improper.
Finally, although the district court opinion orders declaratory and
injunctive relief, its judgment does not. Thus, uncertainty exists about
the relief that is in effect. For these reasons, we conclude that the
public interest supports vacating the district court’s opinion and
judgment.

Id. In subsequent litigation, the trial court stated that “[d]espite Plaintiff’s

assertions to the contrary, the Fifth Circuit did not vacate the Court’s Opinion and

Judgment because they were moot.” See Koenning v. Suehs, Civil Action No. V-11-

5, 2013 WL 6491075, at *1 (S.D. Tex. Dec. 9, 2013). “The Fifth Circuit vacated

the Court’s Opinion and Judgment because they were erroneous.” Id. Appendix 7.

Therefore, Puglisi’s reliance on Koenning v. Suehs is misplaced and has no merit.

28
 d. CMS policy letters and recent federal case law support exclusion
of mobile power standers.

Puglisi alleges that “THHSC erred in concluding that the standing feature of

the recommended wheelchair is not covered by Medicaid by relying on unlawful

TMHP policy that violate both federal and state Medicaid requirements and the

Texas APA.” C.R. at 54, 60. TMPPM § 2.2.14.26, however, does not violate

federal and state Medicaid requirements because “[a] State may develop a list of pre-

approved items of ME [Medical Equipment] as an administrative convenience

because such a list eliminates the need to administer an extensive application process

for each ME request submitted.” See CMS letter dated September 4, 1998,

Appendix 6. Moreover, CMS guidance provides that:

. . . [A] State will be in compliance with federal Medicaid requirements
only if, with respect to an individual applicant’s request for an item of
ME, the following conditions are met:

• The process is timely and employs reasonable and specific criteria by
which an individual item of ME will be judged for coverage under the
State’s home health services benefit. These criteria must be
sufficiently specific to permit a determination of whether an item of
ME that does not appear on a State’s pre-approved list has been
arbitrarily excluded from coverage based solely on a diagnosis, type of
illness, or condition.

• The State’s process and criteria, as well as the State’s pre-approved list
of items, are made available to beneficiaries and the public.

• Beneficiaries are informed of their right under 42 C.F.R. Part 431
Subpart E, to a fair hearing to determine whether an adverse decision is
contrary to the law cited above.

29
See CMS letter dated September 4, 1998, Appendix 6. In addition to the federal

guidance described in the Desario Letter, Detgen v. Janek provides that: “[t]he rule

the court employs is this: where a State has explicit guidance from CMS that FFP

will not be available for an item of DME, that State acts reasonably when it

categorically excludes such an item from coverage in its Medicaid policies.”

Detgen v. Janek, 945 F.Supp.2d 746, 759 (N. D. Tex. 2013) (“The court finds that

Texas Medicaid’s policy categorically excluding ceiling lifts from coverage does not

conflict with the Medicaid Act’s ‘reasonable standards’ requirement, the ‘amount,

duration, and scope’ regulation, or the Desario letter’s guidance.”). Appendix 12.

Furthermore, recent CMS guidance provides that “items of DME meeting the state’s

definition of coverage is to be provided to individuals (of any age) meeting the

State’s medical necessity criteria.” See CMS letter dated May 21, 2013 (“This

means that medically necessary ceiling lifts will be reimbursed by CMS as part of

the Texas home health benefit if these lifts meet the state’s definition of DME

[coverage].” (Emphasis added). A.R. at 303. HHSC’s exclusion of mobile

standers, therefore, is consistent with state and federal statutes, rules, and guidance.

e. Puglisi’s Texas Government Code § 2001.038 rule challenge
lacks merit.

i. Puglisi cannot maintain an action for declaratory relief.

Contrary to Puglisi’s assertions, 1 TAC §§ 354.1031, .1035, .1039, .1040 and

TMPPM § 2.2.14.26 do not violate the Texas Administrative Procedure Act (APA).

30
Puglisi’s request that the trial court declare 1 TAC §§ 354.1031, .1035, .1039, .1040

and TMPPM § 2.2.14.26 invalid is in essence a request for declaratory relief under

Tex. Gov’t Code § 2001.038 to modify the Medicaid Home Health Services

program. C.R. at 60-63. Bringing a § 2001.038 challenge in this judicial review

action under Tex. Gov’t Code §§ 531.019 and 2001.171 fails because the claim has

been brought after HHSC entered its final administrative orders in the underlying

administrative proceeding. Puglisi’s remedy, if any, should be limited to remand

or reversal of the administrative orders denying her request for Home Health

Services program services.

A § 2001.038 challenge brought after the entry of a final agency order in a

§ 2001.171 proceeding must be dismissed unless the party seeks to foreclose

separate, future administrative proceedings by obtaining declaratory relief. This

result is mandated by (1) the text of § 2001.038, (2) the Court’s precedent governing

the justiciability of § 2001.038 claims, and (3) the redundant-remedies and

separation-of-powers doctrines.

ii. Section 2001.038 allows suits for declaratory relief only
before a final order issues in a contested case.

The text of Tex. Gov’t Code § 2001.038 limits the subject matter of any

declaration, but it places no additional procedural limitations on suit. E.g., Keeter

v. Tex. Dep’t of Agric., 844 S.W.2d 901, 902 (Tex. App.—Austin 1992, writ denied)

(contrasting the APA procedural requirements for declaratory-judgment with the
31
exhaustion requirement in a suit for judicial review). The plain language of this

section demonstrates that the legislature intended to restrict the scope of declaratory

relief to a limited set of legal questions, with few procedural requirements. If a

contested-case proceeding is involved, a § 2001.038 declaratory relief must be

sought before the final administrative order issues.

Section 2001.038 provides:

The validity or applicability of a rule . . . may be determined in an action
for declaratory judgment if it is alleged that the rule or its threatened
application interferes with or impairs, or threatens to interfere with or
impair, a legal right or privilege of the plaintiff.

Tex. Gov’t Code § 2001.038 (emphasis added). Section 2001.038 allows

challenges based only on the “validity or applicability” of a “rule.” Thus, a

§ 2001.038 claim is limited to legal issues regarding an administrative –rule—it is

not a mechanism for reviewing an agency’s compliance with the APA. Friends of

Canyon Lake v. Guadalupe-Blanco River Auth., 96 S.W.3d 519, 529 (Tex. App.—

Austin 2002, pet. Denied); see also Star Houston, Inc. v. Tex. Dep’t of Transp., 957

S.W.2d 103, 111 (Tex. App.—Austin 1997, pet. denied) (illustrating that section

2001.038 does not allow courts to enforce § 2001.054 of the APA). And this

challenge must both (1) relate to a “rule or its threatened application” and (2) be

limited to “validity or applicability” rather than the rule’s application. This

language emphasizes that § 2001.038 is focused on pre-enforcement legal questions.

If the statute were designed to review the outcome of a particular contested-case
32
proceeding, the legislature would have used the word application, rather than the

word applicability. A court has power to determine only the applicability of a rule

whose application is threatened, not to issue a declaration regarding the impact of a

rule on a particular, already-complete contested-case proceeding.

Section 2001.038 must also be read in line with the APA’s statutory

definitions. See Tex. Gov’t Code § 311.021(2). The statutory definition of the

term “rule” defines the scope of a rule in terms of “applicability.” See Tex. Gov’t

Code § 2001.003(6)(A) (rule is a “statement of general applicability.”). This

language further confirms that “applicability” refers to the prospective scope of a

rule’s effect, not to its application in a particular contested-case proceeding. See id.

§ 2001.003(1).

The Third Court of Appeals has recognized that § 2001.038 allows a rule

challenge before the rule is applied. E.g., Rutherford Oil Corp. v. Gen. Land Office,

776 S.W.2d 232, 235 (Tex. App.—Austin 1989, no writ) (“The purpose of this

statute is to obtain a final declaration of a rule’s validity before the rule is applied.”).

The statute removes any need to wait until a rule is actually applied before

challenging it—thus it addresses applicability, not application, of rules. See State

Bd. of Ins. v. Deffebach, 631 S.W.2d 794, 797 (Tex. App.—Austin 1982, writ ref’d

n.r.e.). But apart from these limits on subject matter, the provision has no strict

procedural requirements and does not require exhaustion of administrative remedies.

33
Tex. Gov’t Code § 2001.038(d) (allowing declaration regardless of whether plaintiff

asked the state agency to rule on the rule’s validity or applicability); see, e.g., Tex.

Dep’t of Licensing & Regulation v. Roosters MGC, LLC, No. 03-09-00253-CV,

2010 WL 2354064, at * 6 (Tex. App.—Austin June 10, 2010, no pet.) (mem. op.)

(Correctly finding jurisdiction absent exhaustion of administrative remedies where

plaintiff was not a party to pending or concluded administrative proceedings).

Allowing declaratory judgments regarding the application of a rule in a particular

case would frustrate the Legislature’s intent in both adopting § 2001.038 and placing

a strict exhaustion requirement on § 2001.171 suits, because a § 2001.038 claim

would be available to reverse the application of a rule in a particular contested-case

proceeding.

By contrast to § 2001.038’s low procedural hurdles and narrow legal scope,

§ 2001.171 includes a strict, jurisdictional exhaustion requirement, but allows a

plaintiff to raise “any” legal error related to a particular administrative order. Tex.

Gov’t Code §§ 2001.171 and 2001.174(D); e.g., Tex. Water Comm’n v. Dellana, 849

S.W.2d 808, 810 (Tex. 1993) (per curiam). If a plaintiff seeks only to change the

outcome of a particular administrative proceeding, therefore, he cannot do so in a

§ 2001.038 challenge to the rules underlying the decision because the only object he

can challenge is the agency’s application of the rule. Charlie Thomas Ford v. A.C.

Collins Ford, 912 S.W.2d 271, 275 (Tex. App.—Austin 1995, writ dism’d) (“A

34
declaratory judgment, as to the validity or applicability of the rule in question, cannot

have legal effect outside the context of Collins’s contested case and its suit for

judicial review of the Commission’s final order in the case. That case has been

decided . . . .” (internal citations omitted)); see also Lopez v. Pub. Util. Comm’n, 816

S.W.2d 776, 782 (Tex. App.—Austin 1991, writ denied) (concluding that

administrative rule applying only in the context of a contested-case proceeding

cannot be challenged after a final order is entered). This makes practical sense

because the agency retains jurisdiction to change the outcome of an administrative

proceeding until the final order issues.

Taken together, the text of the two provisions confirms that a § 2001.038

claim must be brought before a party’s claims become subject to a final

administrative order. A rule cannot be challenged under § 2001.038 unless, on its

face, its threatened application impairs a protected right or privilege. By contrast,

once a final contested-case order is entered, the proper review mechanism is a

§ 2001.171 claim, which Puglisi has brought in this instance through Tex. Gov’t

Code § 531.019. This relationship is useful because § 2001.038 provides a

mechanism to avoid contested-case proceedings entirely, or to obtain legal guidance

on pure issues of law before an administrative proceeding on particularized facts.

It is, thus, appropriate in some cases to abate a contested-case proceeding—or an

entire category of proceedings—while waiting for final resolution of a § 2001.038

35
suit. See, e.g., All Saints Health Sys. v. Tex. Workers’ Comp. Comm’n, 125 S.W.3d

96, 101–02 (Tex. App.—Austin 2003, pet. denied), abrogated on other grounds by

HHSC v. El Paso County Hospital District, 351 S.W.3d 460 (Tex. App.—Austin,

2011), aff’d, 400 S.W.3d 72 (Tex. 2013).

But the legislature did not intend for § 2001.038 claims to serve as a basis for

delaying or abating all contested-case proceedings. Subsection (e) provides that a

declaratory-judgment action may not be “used to delay or stay a hearing in which a

suspension, revocation, or cancellation of a license by a state agency is at issue

before the agency after notice of the hearing has been given.” Tex. Gov’t Code

§ 2001.038(e). Subsection (e) thus recognizes that, in administrative proceedings

that do not involve license revocation, it is entirely appropriate to file a § 2001.038

suit before a final order is entered, and the administrative body has discretion to

abate the proceeding. If the two procedures were intended to run simultaneously,

subsection (e) would not limit the availability of pre-final-order declaratory-

judgment claims for licensing proceedings.

Section 2001.038 limits the immunity waiver for validity or applicability claims to

those brought before a rule is applied because application of the rule must be

threatened—not actual. An administrative body has authority to abate a pending

proceeding that involves a rule until a court resolves a simultaneous § 2001.038

action, except in license-revocation proceedings. But, absent abatement, the

36
agency has authority to resolve a particular contested case and moot a pending rule

challenge. Once a party’s interest is reduced to a final administrative order, any

legal challenge to that –order—including a challenge to the rules applied in the

order—must be contained within the procedural mechanism for challenging the

application of administrative rules: a suit for judicial review under § 2001.171 or, in

this case, under Tex. Gov’t Code § 531.019.

iii. Legal precedent confirms that declaratory relief is
available to challenge a rule in general but unavailable to
alter the application of a rule after the fact.

Section 2001.038 justiciability precedent confirms HHSC’s plain-text

argument. A plaintiff cannot participate in a contested case until its conclusion,

then use § 2001.038 to circumvent the APA’s procedural requirements, even to raise

a pure question of law. E.g., Chocolate Bayou Water Co. & Sand Supply v. Tex.

Natural Res. Conservation Comm’n, 124 S.W.3d 844, 852–53 (Tex. App.—Austin

2003, pet. denied) (holding that exceptions to exhaustion-of-administrative-

remedies doctrine do not apply when a party waits until after the issuance of a final

order following a long contested-case proceeding in which the claim could have been

raised). This is because the entry of a final administrative order, in most cases,

moots the claim for declaratory relief. E.g., KEM Tex. Ltd. v. Tex. Dep’t of Transp.,

No. 03-08-00468-CV, 2009 WL 1811102, at *6 n.6 (Tex. App.—Austin June 26,

2009, no pet.) (mem. op.); Friends of Canyon Lake, 96 S.W.3d at 529; Charlie

37
Thomas Ford, 912 S.W.2d at 275. Section 2001.038 gives courts authority to make

declarations about administrative rules, but not to raise unexhausted issues parallel

to a suit for judicial review. Lopez, 816 S.W.2d at 782 (“Even if the district court

should declare the validity or applicability of [the administrative rule] that court

would be powerless to revive in some manner the plaintiffs’ appeal [from final

administrative order], the only context in which the court’s declaratory judgment

could have legal effect.”). The entry of a particularized order allows a challenge

under § 2001.171, while § 2001.038 is limited to rule challenges before a

particularized order is entered or when an agency decision is governed by an

administrative rule, but does not proceed through a contested-case proceeding.

Precedent on mootness follows the same trajectory as the limits set on § 2001.038

by its own text -- declaratory relief is available to attack a rule in general, but not to

change the application of a rule in a particular administrative proceeding.

iv. The redundant remedies and separation-of-powers
doctrines negate Puglisi’s ability to bring a § 2001.038 claim
in this suit.

The Third Court of Appeals has long recognized the “redundant remedies”

doctrine, under which a declaratory judgment action “will not lie” if it is redundant

to another statutory cause of action. E.g., Beacon Nat’l Ins. Co. v. Montemayor, 86

S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.). The Court applies this

doctrine to the relationship between § 2001.038 and § 2001.171 claims. SWEPI LP

38
v. R.R. Comm’n, 314 S.W.3d 253, 269-270 (Tex.App.—Austin 2010, pet. Denied)

(“A declaratory judgment claim ‘will not lie’ when it is ‘redundant’ of a parallel

administrative appeal and the ‘remedy under APA is same as that provided under

the [Act]’--reversal of the agency’s final order.”). A § 2001.038 claim is redundant

to a § 2001.171 claim that could address the same legal argument and, therefore, will

not lie.

Application of the redundant remedies rule to § 2001.038 claims makes sense.

Because a § 2001.171 proceeding provides the appropriate mechanism for

vindicating a plaintiff’s legal issues with regard to a particular administrative

dispute, any § 2001.038 claim is redundant to the § 2001.171 proceeding from the

time the agency enters its final administrative order. The standard of review set out

in § 2001.174 encompasses every legal error that could be challenged in a

§ 2001.038 hearing because that standard allows reversal based on any legal error.

See Tex. Gov’t Code § 2001.174(2)(D). Thus, a § 2001.171 suit necessarily includes

any issue regarding the validity or applicability of a relevant administrative rule—

rendering a § 2001.038 claim redundant to such a challenge to the outcome of a

particular contested-case proceeding.

The rule that judicial interference in administrative proceedings is limited to

a suit for judicial review once a final administrative order has been entered derives,

likewise, from the background separation-of-powers principles undergirding Texas

39
administrative practice. See Roosters, 2010 WL 2354064, * 4 (citing Tex. Comm’n

of Licensing & Regulation v. Model Search Am., Inc., 953 S.W.2d 289, 291-293

(Tex. App.—Austin 1997, no writ) (distinguishing a suit for declaration regarding

the scope (applicability) of a rule from a judicial attack on a final contested-case

order). With a few exceptions, there is no background right to judicial review of

particular administrative orders for the very reason that executive-branch

determinations should not be determined by the courts de novo. See Model Search,

953 S.W.2d at 291–92. (“The separation of government powers mandated in the

State constitution forbids a court to review the actions of an administrative agency

unless the legislature has, in a proper statute, authorized a cause of action for that

purpose or the plaintiff complains the agency action is ultra vires or unconstitutional

in its effect upon the plaintiff or his property.”). Stretching § 2001.038 to

encompass any and all claims a plaintiff might bring parallel to his contested-case

suit for judicial review would ignore this background principle.

Put another way, the only mechanism the Legislature has provided for a court

to reverse an agency’s actions in a particular case is § 2001.171. Section 2001.171

provides a judicial mechanism for changing a particular administrative outcome.

Section 2001.038, by contrast, does not confer jurisdiction to challenge the outcome

of an agency proceeding or to determine whether its order comports with the APA.

It allows a declaratory judgment regarding only the validity or applicability of a rule.

40
Once a final administrative order is in place, therefore, § 2001.038’s text does not

give a court authority to change the result of an already-final contested-case

proceeding because a declaratory judgment about a rule has nothing to do with the

outcome of a contested-case proceeding.

For the foregoing reasons, to the extent that Puglisi is seeking declaratory

relief under Tex. Gov’t Code § 2001.038 by asking the Court to declare the DME

requirements unconstitutional and to modify the Home Health Services program

eligibility requirements, such relief must fail.

3. In this case, a power seat elevation system is not medically necessary,
appropriately documented, or prior authorized.

There is no dispute that a power seat elevation system is a covered Medicaid

home health benefit in Texas. Specifically, 1 TAC §§ 354.1031, .1035, and .1039

as well as applicable Texas Medicaid Provider Procedures establish and explain the

“authorization requirements” and “limitations” for power seat elevation system.

Accordingly, applicable agency rules unequivocally provide that covered and

reimbursable DME must be medically necessary, that the appropriateness of the

DME must be documented in the request form, and that the requestor must obtain

prior authorization. 1 TAC § 354.1039(a)(4)(A).

Moreover, the Texas Medicaid Provider Procedures Manual (TMPPM)

consistent with the dictates of the Desario Letter, describes “reasonable and specific

criteria” for medical necessity, proper documentation, and prior authorization of
41
power seat elevation systems. TMPPM § 2.2.14.15.1 shows the following:

• A power seat elevation system may be prior authorized to
promote independence in a client who meets all of the following
criteria:

• The client does not have the ability to stand or pivot transfer
independently.
• The client requires assistance only with transfers across unequal
seat heights, and as a result of having the power seat elevation
system, the client will be able to transfer across unequal seat
heights unassisted.

• The client has limited reach and range of motion in the shoulder
or hand that prohibits independent performance of MRADLs
(such as, dressing, feeding, grooming, hygiene, meal preparation,
and toileting).

Appendix 5, DM-75. In addition, TMPPM § 2.2.14.15.2 describes the

documentation necessary to demonstrate “how the power seat elevation system will

improve the client’s function.” Appendix 5, DM-75.

Based on the evidence presented by Molina Healthcare and Puglisi in the

administrated record, the Hearing Officer determined the following:

Appellant requires maximum assistance with all activities of daily
living including transfers.
...
Appellant requires caregiver assistance to transfer in and out of her bed
and wheelchair.
...
Appellant would not be able to transfer across unequal seat heights
unassisted by using a power seat elevation system.

42
A.R. at 334. In addition, the Reviewing Attorney determined that “[a]ppellant is

unable to transfer independently even with the assistance of a power seat elevation

system.” A.R. at 345.

a. Puglisi failed to satisfy the requirements of medical necessity
and prior authorization for the requested power seat elevation
system.

As stated previously, “Texas Medicaid defines DME as: Medical equipment

or appliances that are . . . required to correct or ameliorate a client’s disability,

condition, or illness.” TMPPM § 2.2.2, Appendix 5, DM-13. In contrast, Puglisi’s

description of medical necessity for the power seat elevation system is as follows:

. . . required when using the standing feature. Power seat elevator will
also decrease caregiver burden when assisting the patient with lateral
transfers by adjusting the seat height to make transfer downhill. The
seat elevator allows for Linda to access items in upper cabinets and
countertops that she would otherwise be unable to reach. Patient may
also use seat elevator to improve independence with and functional
reach activities as her neurological function continues to improve.

A.R. at 191. However, a review of administrative record shows that Molina

Healthcare determined that Puglisi failed to satisfy criteria to demonstrate medical

necessity for the power seat elevation system. Specifically, the record shows that

Molina Healthcare made the following determination:

A E2300/power seat elevator cannot be approved as medical necessity
cannot be established. According to the Texas Medicaid Provider
Procedure Manual Section 2.2.14.15 regarding the power seat elevator
system, a power seat elevator may be approved when it will facilitate
independent transfers, particularly uphill transfers, to and from the
wheelchair and augment the client’s reach to facilitate independent
43
 performance of mobility related activities of daily living in the home.
The clinical information submitted indicates that you require maximum
assistance in all activities of daily living and you are unable to perform

mobility related activities of daily living independently. The
documentation submitted did not indicate how the power seat elevator
system would promote independence. Therefore, the guidelines for
coverage of this equipment are not met.

A.R. at 27. Also, Molina’s Rehab Review notes state the following:

The vendor has listed out the specific reasons that a seat elevator is
needed but has not provided specific activities that this member will
encounter that require this function. The generic information is good
but we still do not see how it applies directly to the member.

A.R. at 140. In short, Puglisi’s documentation failed to address the medical

necessity and prior authorization requirements authorized in 1 TAC §§ 354.1035,

.1039, and described in TMPPM § 2.2.14.12.5. As a result, Molina Healthcare

could not approve Puglisi’s request for a power seat elevation system.

b. Exceptional circumstances review for the requested power
seat elevation system is not required in this case.

Exceptional circumstances review applies to unlisted DME. See 1 TAC

§ 354.1039(a)(4)(D). Specifically, power seat elevation systems (code number

E2300) is listed. See TMPPM § 2.2.14.26, Appendix 5, DM-86. Exceptional

circumstances review, therefore, was not warranted in this case because power seat

elevation systems are listed as covered DME.

F. Puglisi received adequate due process relating to Molina Healthcare’s
44
 denial of her request for Group 4 power wheelchair, integrated standing
feature, and power seat elevation system.
Puglisi alleges that the “denial notice issued by Molina did not comport with

federal Medicaid requirements because it failed to include the required specificity as

to the reasons Molina contended that the standing feature was not a covered benefit

and why the recommended wheelchair was not medically necessary for Linda.”

C.R. at 75. In addition, Puglisi alleges that “THHSC’s attorney cannot supplement

Molina’s bases for denial after the hearing to further bolster the agency’s decision.”

C.R. at 76. These claims are not meritorious because Puglisi lacks a protected

property interest in the DME she was denied, and she received all the process that

she was due.

1. Puglisi has no protected due process right to Home Health Services
program services because the program’s existing rules do not confer a
protected interest in Medicaid benefits to her.

To have a substantive due process right, an individual must show they have a

protected interest. Liberty Mut. Ins. Co. v. Texas Dep't of Ins., 187 S.W.3d 808, 827

(Tex. App.—Austin 2006, pet. denied); citing Neuwirth v. La. State Bd. of Dentistry,

845 F.2d 553, 558 (5th Cir.1988), Woody v. Dallas, 809 F.Supp. 466, 473 (N.D.Tex.

1992). To have a protected interest, the individual must have a legitimate claim of

entitlement, which is more than a unilateral expectation. Bd. of Regents v. Roth,

408 U.S. 564, 577 (1972). Further, property interests are created and defined by

existing rules or from independent sources like state law. Id. Importantly, to have

45
an interest in a specific state created benefit, the individual must have already

acquired the benefit. Woody 809 F.Supp. at 473; Tobias v. Univ. of Tex. at

Arlington, 824 S.W.2d 201, 208 (Tex.App.—Fort Worth 1991, writ denied).

Here, Puglisi could not have acquired a protected interest in the requested

DME prior to satisfying all the necessary prerequisites for obtaining the requested

DME. Thus, Puglisi has no protected interest in Home Health Services program

services and her claim of a substantive due process right must fail. See Johnson v.

Guhl, 91 F.Supp.2d 754, 772 (D.N.J. 2000) (Plaintiffs who had never been granted

Medicaid benefits had no protected property interest in benefits they had never been

deemed qualified to receive.).

2. Molina Healthcare’s denial notice is sufficient.

Molina Healthcare’s denial notice sufficiently notified Puglisi of why her

request was denied, how much time she had to appeal the denial, who to call for help

understanding the denial, and who to call for low cost legal services. A.R. at 27–

29. Specifically, Molina Healthcare’s notice of denial lists “Molina Member

Appeal Rights,” which include “You have the right to obtain a copy of the guidelines

used by MHT to decide the outcome.” A.R. at 28.

3. The Reviewing Attorney fulfilled his statutory duties.

Additionally, “[b]efore an applicant for or recipient of public assistance

benefits may appeal a decision of a hearing for the commission . . . , the applicant or

46
recipient must request an administrative review by an appropriate attorney of the

commission or a health and human services agency, as applicable.” Tex. Gov’t

Code § 531.019(c) (West 2004 and Supp. 2009). Also, the Reviewing Attorney has

a statutory duty to complete “an administrative review of the decision and notify the

applicant or recipient in writing of the results of that review.” Tex. Gov’t Code

§ 531.019(e)(2) (West 2004 and Supp. 2009). Further, “[a]n administrative review

of a hearing decision is provided as set forth in §§ 357.701 – 357.703 of this chapter

(relating to Purpose and Application, Definitions and Process and Timeframes).” 1

TAC § 357.19(e). Next, “[w]hen an administrative review is conducted, the

attorney makes the final decision for the HHS system agency and its designees.” 1

TAC § 357.703(5).

VIII. CONCLUSION & PRAYER

The evidence supporting Molina Healthcare’s and HHSC’s decisions is not

only substantial but also probative and reliable because it is based upon indisputable

facts. In short, there is more than a mere scintilla of evidence in the record to

support the Hearing Officer’s and the Reviewing Attorney’s findings and

conclusions. After reviewing the whole record, reasonable minds can reach the

same factual and legal conclusions as the Hearing Officer and Reviewing Attorney.

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully asks that

this Court: a) reverse the trial court and dismiss this suit for lack of subject matter

47
jurisdiction, b) reverse the trial court because Molina Healthcare and HHSC’s

decisions are supported by substantial evidence, or c) reverse and remand the case

to Molina Healthcare and HHSC to take additional evidence pursuant to Texas

Government Code § 2001.175.

Respectfully Submitted,

KEN PAXTON
Attorney General of Texas

CHARLES E. ROY
First Assistant Attorney General

JAMES E. DAVIS
Deputy Attorney General for Litigation

DAV ID A. TALBOT, JR.
Chief, Administrative Law Division

/s/ Eugene A. Clayborn
EUGENE A. CLAYBORN
State Bar No.: 00785767
Assistant Attorney General
Deputy Chief, Administrative Law Division
O FFICE OF THE A TTORNEY G ENERAL OF T EXAS
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
Telephone: (512) 475-3204
Facsimile: (512) 320-0167
eugene.clayborn@ texasattorneygeneral.gov

Attorneys for Texas Health & Human Services
Commission

48
 CERTIFICATE OF COMPLIANCE

I certify that the brief submitted complies with Texas Rule of Appellate Procedure
9 and the word count of this document is 11,159. The word processing software
used to prepare this filing and calculate the word count of the document was
Microsoft Word 97-2003.

Dated: June 16, 2015

/s/ Eugene A. Clayborn
EUGENE A. CLAYBORN
Assistant Attorney General

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document has
been served on this the 12th day of June, 2015 on the following:

Maureen O’Connell Via: Electronic Service
State Bar No.: 00795949
S OUTHERN D ISABILITY L AW C ENTER
1307 Payne Avenue
Austin, Texas 78757
moconnell458@gmail.com
Attorneys for Appellee
/s/ Eugene A. Clayborn
EUGENE A. CLAYBORN
Assistant Attorney General

49
 CASE NO. 03-15-00226-CV

IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT
AT AUSTIN, TEXAS

Texas Health & Human Services Commission,
Appellant,
v.
Linda Puglisi,
Appellee.

On Appeal from Cause No. D-1-GN-14-000381
53rd Judicial District Court of Travis County, Texas
Honorable Judge Gisela D. Triana Presiding.

APPELLANTS’ BRIEF

ACRONYMS

ADL Activity of Daily Living
APA Administrative Procedure Act
A.R. Administrative Record
CCP Comprehensive Care Program
CGC Celerian Group Company
CMS Centers for Medicare and Medicaid Services
C.R. Clerk’s Record
DME Durable Medical Equipment
DME MAC Durable Medical Equipment Medicare Administrative
Contractor
DMEPOS Durable Medical Equipment, Prosthetics, Orthotics, and
Supplies
DOS Date of Service
FFP Federal Financial Participation

50
grp Group
mbr Member
MCO Managed Care Organization
ME Medical Equipment
MHT Molina Healthcare of Texas
MRADL Mobility Related Activities and Daily Living
MQMB Medicaid Qualified Medicare Beneficiary
PMD Power Mobility Device and/or Power Wheeled Mobility
System
pwc Power Wheel Chair
QRP Qualified Rehabilitation Professional
THHSC / HHSC Texas Health and Human Services Commission
THMP ([sic])
TMHP / tmhp Texas Medical Health Partnership
TMPPM Texas Medicaid Providers Procedures Manual

51
 CASE NO. 03-15-00226-CV
___________________________________________________________
IN THE COURT OF APPEALS
FOR THE THIRD JUDICIAL DISTRICT
AT AUSTIN, TEXAS
____________________________________________________________
Texas Health & Human Services Commission,
Appellant,
v.
Linda Puglisi,
Appellee.
____________________________________________________________
On Appeal from Cause No. D-1-GN-14-000381
53rd Judicial District Court of Travis County, Texas
Honorable Judge Gisela D. Triana Presiding.
____________________________________________________________
APPELLANT’S BRIEF
_________________________________________________________________

APPENDICES

No. 1. Molina Healthcare’s Decision
No. 2 Fair Hearing Decision
No. 3 Reviewing Officer’s Decision
No. 4 Relevant Texas Administrative Code Provisions
No. 5 Relevant Texas Medicaid Provider Procedure Manual Provisions
No. 6 Desario Letter
No. 7 Koenning v. Suehs Case
No. 8 Detgen v. Janek 5th Cir. Case
No. 9 Order Denying Motion To Dismiss
No. 10 Final Judgment
No. 11 DME Medicare Administration Contractor
No. 12 Detgen v. Janek U.S.D.C. – N.D., Texas Case

52
APPENDIX 1
 San Antonío' TX 78216
_-(4:t+>665-4G22-

Data: 61612013
LfSA R WENZEL MD
Po Box 200901
I{ousto¡t. TX7'1216

MembcrNatnc: LINDA MYSTINE PUGLISI
DOB:-
Msmbcr ldentilìcation Numbor: lff
Primary Care Physician: ANUSUYA N SENDOS MD
backestand leg ref. batterics, footplatcs, joystlck and mounring
Rcqucstcd service(s): c.up-l*.-*tor pã\uø rvrrc"r"noir, sliding
hardrvnre, powcr scat clevalor
Denied Daie(s) of Scoico: SDO?Oß & Forward
Request Date: 05/20i201 I Neoessâry
rüp";;. f'quesr : Denied Notification for Rcduction of scrvic¿s not Medically
Date of Denial: 6/512011

Dear LISA R WIINZEL:
AftercarcfulrevicwoFyourrcqucst'adccisíon
Thislerteristoletyouknowthatwerecelvedarequei[forthescrvicè(s)listedabove.
was nladc to deny ihcrcgucsl duo to tho reasons listed below:

,tnd dr¡ve functlon ls not approvcd, thc rcquest for

indcpcndent tronsfcrs' pertlcuhrly uphill fransfers' to anr
tn thc homc' Thc cllnical informatlon
facílit¡tc rn,repun,rcnii'"ifo.nron"o oimobfltty retricd actlvitlcs of daily living
that you requlre m¡rimum assist¡nce in ull act¡vitlca of dally llvlng and you are unâblo to pciform
subrnittad indicatc¡
indcpcndcntly. The rlocumcnt¡tlon submlttcd did not lndlcllc horv thc power
rnobility relatcd rctivilles of
Freda Gardirer, MD
Medicaj Diroctor

Molina l{calthcare oFTclas
Encl: Attachnlcnt À-Lorv Cost Legal, .Attachtnent B' Fair Hoaring

Ð

Mt |TNMNLTR6t 0 . I 0252011 98 I ô1'

Ð
25

000044
.,Ð
Attachment A
[ow Cost Legal Service Directory
Xm¡rittO Austin
Legal Aid of Northwest Texas Legal Aid of Northwest Texas American Civil Liberties
- Abilene - Amarillo Union of Texas (ACLU)
it I 5tì 'ß t.ic P,O. Box',l2905 Austin, fX7s711
50O'Chestnut, Suite 901 Abilene, TX 203 W. 8th St., Sulte 600 Amarillo, TX 512478-7300
79602 7q1q1 http : //www. aclutx. org/
325-677-8591 806-37È6808
htto :/^fl!vw, I a riwt. orq htto://www.lanwt.oro

Austin Cornus Christi Dallas
Texas Legal Services Center Gxas Rl"Cr"nãe Legal Aid - Legal Aid of Northwest Texas
815 Brazos St. Suite 1100 Austin, TX Corpus Ghristi CouÉhouse - Dàllas
78701 1Lt.Kl .
îgl.gj
512-477€000 901 Leopard Street, room ',l05 CorPus 1 515 Maln Sheat Dallas. 'lX 75201
http://www,tlsc.org Chrisü, TX 78401 21+748-1234
361-888-0282 http://www.lanwLorg
htto://www,trla.oro
trl Paso Ilarlinsen Houston
Texas RioGrande Legal Aid - Texas RioGrande Legal Aid - Lone Star Legal Aid (Houston
El Paso Harlingen Office)
ig l-Sr.: itlsc t' f.sc
1331 Texas Avenue El Paso, TX 799q1 308 E Harrison Adams Gardens, TX 78550 1415 Fsnnin St. Clulch City, TX 77002
91 5-585-51 00 956-364-3800 713-652-0077
htto://www.trla.orq htto://www,trla,orq ht'to://www,loneetarleqal,ors
[-aredo LonWÌew Lu.bbock
Texas RioGrande Legal Aid - Lone Star Legal Aid Legal Ald of Florthwest Texas
Laredo (Longview Office) - Lubbock
5L lS(.' il l,St TL l-\C
1702 Converit Avenue Larddo¡ TX 78040 140 East Tyler, Ste. 150 Longvlew, TX 17'l 1 Avenue J Lubbock, l-X 79401
950-71 8-4600 75601 s0&763-4557
http://www.trla.org 903,758-S123 http://www,lanwt.org
htto://www. lonestarleqal, org

San Antonio Texarkana Wichita Falls
Texas RioGrande Legal Aid - Lone Star Legal Ald Legal Aid of Northwest Texas
San Antonio (Texarkana Office) - Wlchita Falls
'l!. f.((: .._
'¡g' I -ci: tl, l-.i{:
1111 N'Main Olmos Park, 1X78212. 1425 Collegg Dtlve 9te; 100 Red Rlver 703 Scott, Ste. 100 Wlchlla Falls, TX
210-212-3700 Army Depot, TX 75501 78301
hltp:i/www.trla.org 903-793-7661 or 903-793-7865 94ú723-6542
htto://www.lonestarlegal.org htto://www. la nv'rt. o ro

26

000045
 (&ì@
MOfl-HNA
tilfi I-I EA tT I-I CA R E
84 NE Loop 410, Suit6 200
Søn Antonio,'|X78216
(877) 665-4622

Afiachmc'nt B - Fail llearini l(ights
YOU HAVE A RIGIJT TO A FAITT I{EARINC
IF YOU DO NOT ACREÉ WII'IJ TI-Í]S DECISION

y()u musl tiir hearing within g0 clays lrorn ¡he dato o[ this ìafter. lf you do not ask for a fair henring bel'ore 9/4/20 l3 you
ask for a '
rvill losc your light to a t'air henring'

Your rights in a thir hcnting arcl

. you by writing u lettcr to Molinn
Thc right to rcpresent yorrrself. or have a. larv1,er. rclative, filend. or othcr pcrson rePrcscnt
tclling us thc nnllle of the person that you \vant to rÈpresent you'
" lfyouask, l,oralairlrent.in-ervlthinl0cùiysofthedaieofthislcncror.5l20l20l3.younlrybeablerokee¡lgertingan)'service
that is beírrg terriinated, rrrp.nd"d, ()r reducecl ty.Molina. aI lcast unlil tbe lÌnal hearing decision is
rnacle'
o¡. l¡enc1ìt
request ã hír henring by th is datq, the serv ice or benetil rvill bc tcrln inated, suspended, or reduced '
I l. you do
" 'ot service or berlet'it to you while
. lTyou lose your lair hearing opp.il, Ñlotinu rnay bc ablo to reoover rhe costs of providing the
tlìc àppcal rvus Pending.
thchcaring.
" llyourrsktbrafalrhc'ãring,yourvill getopacket,oFinforr¡ationlcningyouknowthodale.tirneandlocationof
Most healings are held by lalephone.
o you cun ¿rlso contact the HHSC hcarlngs oflicer if you rvould like thc.hearing to
be held in-person'
n you disaglee wirh Molin4's ¿otion,
Dr¡ring the heuring, ),ou or your roprcsentotive can tell why you need thé service or why
o henrlng. you havc the right to scc your öase fìlc and oll of the docunlent5 that arc to bÙ trsed by Molitta
13cl,ore che datc ot''ihc

"o iirÏ Ïili,lT..o,n'no¿otÌons tbr a >

T'ITLE 1 ADMINISTRATION
PART 15 TEX,\S HEALTH A}TD HUI\4AN SERVICES COMMISSION
CHAPTER 354 MEDICAID HEALTH SERVICES
SUBCHAPTER A PURCHASED HEALTH SERVICES
DIVISION 3 MEDICAID HOME HEA].TH SERVICES
RULE $354.1031 G,eneral

(a) Purpose. The purpose of this subchapter is to establish rules for the Title XIX (Medicaid) home
health benefits.

(b) Definitions. The following words and terms when used in this subchapter, shall have the following
meanings, unless the context clearly indicates otherwise.

ent, appliances and supplies which are provided
dence by home health agency staff, providers of
upplies under federal regulations 42 CFR $440,70
f Care) and $354,1039 of this title (relating to
Home Health Benefits and Limiøtions).

(2) Home health agency--A public or private agency or organization, licensed by the state to provide
hòme health servicei and qualified to participate as ¿ Medicare home heallh agency under 42 CFR, Part
484, $$484.1-484.52 (Conditions for Participation of Home Health Agencies).

(3) plan of care--A written regimen established and periodically reviewed by a pþsician in
cònsultation with home health agency staff, which meets the plan of care standards at 42 CFR $484'18
and $354.1037 of this title.

(4) Home health aide--An individual who meets the Medicare home health agency personnel
qùáincations and training requirements established for home health aides at 42 CFR $484.4 and
$484.36.

(5) Home health aide services--services which can be provided by a qualified home health aide,
including those listed at 42 CFR $484.36.

(6) Department:The Texas Department of Health and or its designee.

(7) part-time--Home health aide or skilled nursing services provided any number of days per week
less than eight hours per daY.

(g) Intermittent--Home health aide or skilled nursing services provided less than on a daily basis less
than eight hours per daY.

(9) Medicare fee schedule--The fee schedule established by the Medicare plogram for expendable
medical supplies and durable medical equipment.

(10) Expendable medical supply acquisition fee'-The fee determined by the department ot its designee

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Texas Administrative Code Page? of2

by periodic sampling of suppliers or from information provided in manufacturer's publications,
whichever is lesser.

(l l) Expendable medical supplies--Medical supplies which meet one or both of the following criteria:

(A) the typical te¡m of use is within one year of purchase; or

(B) reimbursement is made at a cost of $1,000 or less,

(12) Durable medical equipment--Machinery and/or equipment which meets one or both of the
following criteria:

(A) the projected term of use is more than one year; ol

(B) reimbursement is made at a cost more than $1,000.

Source Note: The provisions of this $354.1031 adopted_to be effective June 26, 1997,22 TexReg
5826;transferred eifective Septembei l, 2001, as published in the Texas Register }day 24,2002,27
TexReg 4561; amended to be effective November t4,2002,27 TexReg 10588

l'lext Jl¡ìiJe P:-evic:us Irac¡e

List of.

il01'1t I TtI^f t\iGlfTER I Tt)('i5 ,iDlllllllTfl.ûTll/E tijDt I 0t¡tll llttlll{6i I lltLi' I

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: Texas Administrative Code Page I of2

Next Rule>>
<
<
Texas Administrative Code
TITLE 1 ADMINISTRATION
I'ART 15 TEXA,S HEALTH AND HUMAN SERVICES COMMISSION
CTIAPTER 354 MEDICAID HEALTH SERVICES
SUBCHAPTER A PURCHASED HEALTH SERVICES
DIVISION 3 MEDICAID HOME HEALTH SERVTCES
RULE $3s4.1039 Home Health Sewices Benefits and Limitations

(a) The State determines authorizationrequirements and limitations for covered home health servioe
benefits. The home health agenoy is responsible for obtaining prior authorization where specified for
the healthcare service, supply, equipment, or appliance. Home health service benefits include the
following:

(1) Skilled nursing. Nursing services provided by a registered nurse (RN) who is currenlly licensed by
the.Board of Nurse Examiners for the State of Texas and/or a licensed vocational nurse (LVN) licensed
by the Texas Boa¡d of Vocational Nurse Examiners provided on a part-time or intermittent basis and
furnished through an enrolled home health agency are covered benefits. Billable nursing visits may also
include:

(A) nursing visits required to teach the recipient, the.primary garegiver, a family- member and/or
n.igtrbor hoù to administer or assist in a service or activity which is necessary to the care and/or
üeatment of the recipient in a home setting;

(B) RN visits for skilled nursing observation, assessment, and evaluation, provided a physician
specifically requests that a nurse visit the recipient for this purpose.

(i) The physician's request must reflect the need for the assessment visit,

(ii) Nursing visits for the primary pu{pose of assessing a reoipient's care needs to develop a plan of
care axe considered administrative and are not billable; and

(C) RN visits for general supervision of nursing care provided by a home health aide and/or others
over whom the RN is administratively or professionally responsible.

(2) Home health aide services. Home health aide services to provide personal care under the
sipervision of an RN, licensed physical therapist (PT), or oocupational therapist (OT) employed by the
home health agency are covered benefits.

(A) The primary purpose of a home health aide visit must be to provide personal care services.

(B) Duties of a home health aide include the p I aarc,
ambulation, exercise, rurLge of motion, safe trans to
health care athome, assistance with medications th
changes in the patient's condition and needs, and completing appropriate records.

(C) Written instructions for home health aide services must be prepared by an RN or therapist as

appropriate.

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(D) The requirements for home health aide supervision are as follows.

(i) When only home health aide services are being furnished to a recÞient, an RN must make a
r,rpèiiroty visit to the recipient's residence at least once every 60 days, These supervisory visits must
occur when the aide is furnishing patient care.

(ii) When skilled nursing care, PT, 9r OT are also being furnished to a recipient, an RN must make
a supervisory visit to the reclpient's residence at least every two weeks.

(iii) When only PT or OT is fumished in addition to the home health aide services, the appropriate
skillèd'therapist may make the supervisory visits in place of an RN.

(E) Visits made primarily for performing housekeeping seruices are not covered services,

(3) Medical supplies. Medicat supplies are covered benefits if they meet the following criteria.

(A) Medical supPlies must be:

(i) documented in the recipient's plan of cæe as medically necessary and used for medical or
therapeutic purposes;

(ii) supplied through an enrolled home health agency in oompliance with the recipient's plan of
care; oI

(iii) supplied by an enrolled medical suþplier under written, signed, and dated physician's
prescription; and

(iv) prior authorized unless otherwise specified by the department.

(B) Items which a¡e not listed in subparagrap
thetieatment or therapy of qualified recipients.
items consideration will be given to the request,
items may be given if circumstances justiff the ex

(C) Covered items include, but are not limited to:

(i) colostomy and ileostomy care supplies;

(ii) urinary catheters, appliances and related supplies;

(iii) pressure pads including elbow and heel protectors;
for
(iv) incontinent supplies to include incontinent pads or diapers for clients over the age of four
medìcát necessity as determined by the physician;

(v) crutch and cane tiPs;

(vi) irrigation sets;

(vii) supports and abdominal binders (not to include braces, orthotics, or prosthetics);

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(viii) medicine chest supplies not requiring a prescription (not to include vitamins or personal care
items such ¿rs soap or shampoos);

(ix) syringes, needles, IV tubing and/or IV administration setups including IV solutions generally
used for hydration or prescriptive additives;

(x) dressing supplies;

(xi) thermometers;

(xii) suction catheters;

(xiii) oxygen and related respiratory oare supplies; or

(xiv) feeding related suPPlies.

(4) Durable medical equiprnent (DME). Durable Medical Equipment must meet the following
requirements to qualiff for reimbursement under Medicaid home health services.

(A) DME must:

(i) be medically necessary and the appropriateness ofthe health care service, supply, equipment,,or
appùan.r prescribåd by the physician roittre ûeatment of the individual recipient and delivered in his
pia"" of reìidence morì b" documented in the plan of care and/or the request form.

(ii) be prior authorized unless otherwise specified by the department;

(iii) meet the recipient's existing medical and treatment needs;

(iv) be considered safe for use in the home;

(v) be provided through an enrolled home health agency under a current physician's plan of care; or

(vi) be provided through an enrolled DME supplier under a wtitten, signed and dated physician's
prescription

(B) The department will determine whether DME will be rented, purchased, or repaired based upon
the duration and use needs of the recipient.

(i) Periodic rental payments are made only for the lesser of:

(I) the period of time the equipment is medically necessary; or

(II) when the total monthly rental payments equal the reasonable purchase cost for the equipment.

(ii) purchase is justified when the estimated duration of need multiplied by the rental payments
*orrìd exceed the reasonable purohase cost of the equipment or it is otherwise more practical to
purchase the equiPment.

(iii) Repair of durable medical equipment and appliances will be considered based on the age of the

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item and the cost to repair the item.

(I) A request for repair of dwable medical equipment or appliances must include a statement or
medical information from the attending physician substantiating that the medical appliance or
equipment continues to serve a specific medical purpose aqd an itemized estimated cost list of the
repairs, Rental equipment may bé provided to replace purchased medical equþment or appliances for
thè period of time it will take to make necessary repairs to ptrchased medical equipment or appliances.

(II) Repairs will not be authorized in situations where the equipment has been abused or neglected
by the patient, patient's family, or cæegiver'

(III) Routine maintenance of rental equipment is the responsibility of the provider'

(C) Covered medical appliances and equipment (rental, purchase, or repairs) include, but are not
limited to:

(i) manual or powered wheelchairs;

(I) non-customized including medically justifred seating, supports and equipment; or

(II) customized, specifioally tailored or individualized,powered wheelchairs including appropriate
mediòalþ justified seaîing, supports and equipment not to exceed an amount specified by the
department.

(ii) canes, orutches, walkers, and trapeze bars;

(iii) bed pans, urinals, bedside commode chairs, elevated commode seats, bath chairs/benches/seats;

(iv) electric and non-electric hospital beds and mattresses;

(v) air flotation or air pressure mathesses and cushions;

(vi) bed side rails and bed traYs;

(vii) reasonable and appropriate appliances for measuring blood pressure and blood glucose suitable
to the recipient's medical situation to include replacement parts and supplies;

(viii) lifts for assisting recipient to ambulate within residence;

(ix) pumps for feeding tubes and IV administration; and

(x) respiratoty or oxygen related equipment,

isted in subparagraph (C) of this paragraph may, in
ex payment when it can be medically substantiated as a part
of serve a specific medical purpose on an individual case
basis,

(5) physical therapy. To be payable as a home health beneftt, physical therapy services must:

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(A) be provided by a physical licensed by the Texas Board of Physical
ffràrápy Éxaminers, or physical icensed by the Texag Board of Physical
Theraþ Examiners who assists a licensed physical therapist;

(B) be for the treatment of an acute musculoskeletal or neuromuscular condition or an acute
exàcérbation of a chronic musculoskeletal or negromuscular condition;

(C) be expected to improve the patient's condition in a reasonable and generally predictable-period of
tinìíUãrfiãnthe physician's asseìsment of the patient's restorative potential after any needed
consultation with the therapist; and

(D) not be provided
services designed to m
not a benefit. Sorvices
exercises to promote overall fitness and flexibility
motivation are not reimbursable'

(6) Occupational therapy. To be payabte as a home health benefit, occupational therapy services must
be:

scunently registered and licensed by the Texas Board of Occupational
occupatioîal Iherapist assistant who is licensed to assist in the practice of
upervised by an occupational therapist;

lB) for the evaluation and function-oriented treatment of individuals whose ability to function in life
t"ù;i;h;;;d by recent or cunent physical illness, injury or condition; and

ro
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requirements to
(7) Insulin syringes and needles. Insulin syringes and-needles must meet the following
qùufify for reímbursement under Medicaid home health services.

(A) pharmacies enrolled in the Medicaid Vendor Drug Progrîn.may dispense insulin syringes
and
n"èàí.r i" ãtigitf. Medicaid recipients with a physician's prescription.

(B) prior authorization is not required for an eligible recipient to obtain insulin syringes and needles.

(C) Insulin syringes and needles obøined in accordance with this section will be reimbursed
through
the Medicaid Vendor Drug Program'
syringes and
(D) A physician's plan of care is not required for an eligible recipient to obtain insulin
needles under this section'

equipment
(g) Diabetic supplies and related testing equip_ment, Diabetic supplies and 1el{ed testing
Medicaid home health
must meet the following requirements tõquãliry for reimbursement under
services.

(A) diabetic supplies and related testing equipment must be prescribed by a physician;

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: Texas Administrative Code Page 6 of6

(B) prior authorization is required unless otherwise specified by the department; and

(b) Home health service limitations include the following.

(l) Patient supervision,

in 30 days prior to the start of home health services.
s has already been established by the attending
tive medical care and treatment' Such a waiver is
evaluation visit is not medically necessary.

(B) Patients receiving home health care services must remain under the care and supervision of a
physícian who reviewsãnd revises the plan of care at least every 60 days or more frequently as the
physician determines necessary.

(2) Time limited prior authorizations.

Cont'd...

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: Texas Administrative Code Page 1 of2

<>

TITLE 1 ADMINISTRATION
PART 15 TEXA"S HEALTH ANID HUMAN SERVICES COMMISSION
CHAPTER 354 MEDICAID HEALTH SERVICES
SUBCHAPTER A PURCHASED HEAI,TH SBRVICES
DIVTSTON 3 MEDICAID HOME HEALTH SERVICES
RULE $354.1039 Home Healtlr Sen¡ices Benefrts and Limitations

(A) Prior authorizations for payment of home health servioes may be issued by the departmentfol a
servióe period not to exceed 60 days on any given authorization. Specific authoizations may be limited
to a timè period less than the established health services exceeds
60 days, ôr when there is a change in the n prior approval and
retain the physician's signed and dated orders with

(B) The provider shall be notified by the department in writing of the authorization (or denial) of
requested services,

(C) Prior authorization requests for covered Medicaid home health services must include the
foll owing information :

(i) The Medicaid identification form with the following information:

(I) full name, age, and address;

(II) Medical Assistance Program Identification number;

(lII) health insurance claim number (where applicable);

(IV) Medicare number;

(ii) the physioian's written, signed and dated plan of care (submitted by the provider if requested);

(iíi) the clinical record data (completed and submitted by provider if requested);

(iv) a description of the home or living environment;

(v) a composition of the fanilylcategiver;

(vi) observations pertinent to the overall plan of care in the home; and

(vii) the type of service the patient is receiving from other community or state agencies.

(D) If inadequate or incomplete information is_provided, the provider will be requested to furnish
additional documentation as required to make a decision on the request,

(3) Medication administation. Nursing visits for the pufpose of administering medications are not
covered if:

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: Texas Administrative Code Page2 of2

(A) the medication is not considered medically necessary to the treatment of the individual's illness;

(B) the administration of medication exceeds the therapeutic frequency or duration by accepted
standards of medical practice;

(C) there is not a medical reason prohibiting the administration of the medication by mouth; or

(D) the patient, a primary caregiver, a famity member and/or neighbor has been taught or oan be
taught to administer intramuscular (IM) and intravenous (IV) injections,

(4) Prior approval. Services or supplies furnished without prior approval, unless otherwise specified
by the department, are not benefits.

(5) Recipient residence. Services, equipment, or supplies fu¡nished to a recipient who is a resident or
pàtíent in a hospital, skilled nursing facility, or intermediate care facility are not benefits.

(c) Home health services are subject to utilization review which includes the following:

ing a copy ofthe plan ofcare and/or a
s me health care service, suPPlY,
e the e needs; and

(2) the home health services provider is re the amount, duration, and scope
oi services in the recipient's plan of care, th equest, and the client record
based on the physician's orders. This information i ctive review; and

(3) the State or its designated contractor may establish_ ralqo- and targeted utilization review
pioô.r.", to ênsure the ãppropriate utilization of home health benefits and to monitor the cost
effectiveness of home health services.

Source Note: The provisions of this $354,1039 adopted to b_e effective June 26, 1997 ,22 TexReg
isie;amended to be effective July t:1999,24 TexReg 4365; transfened effective September l, 2001,
u, potlirh.d in the Texas Registei }/ray 24,2002,27 TexReg 4561; amended to be effective November
14, 2002, 27 T exReg 1 05 88

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-rloc:9739
: Texas Administrative Code
Page 1 of4

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<>

ADMINISTRATTON
TEX,\S HEALTH ANTD HUMANT SERVICES COMMISSION
MEDICAID HEALTH SERVICES
PURCHASED HEALTH SERVICES
MEDICAID HOME HEALTH SER\rICES
Benefits for Medicare/Medicaid Recipients

For recipients who are eligible for both Medioare and Medicaid (dual eligible), Medicare is the primary
payor.

(1) Medicaid wil eduotible and coinsurance subject to the limitations described in
$jS+.f 143 of this to Coordination of Medicaid with Medicare Parts A, B, and C)
for qualified recip services.

(2) Eligible recipients who have exhausted their home health benefits under Medicare are not entitled
to rêceiie all home health services under the Medicaid program. Home health aide services, DME,
supplies, or appliances may be a covered service if:

(A) an eligible Medicaid recipient enrolled in Medicare does not glalifu for home health services
unà.í Medicäre because skillednursing care, physical therapy, speech therapy or occupational therapy
is not an essential element of the recipient's treatment plan; and/or

(B) the medical supplies, equipment, or appliances for use in the eligible recipient's place of
resid"nce are not otherwise available as a Medicare Part B benefit.

Source Note: The provisions of this $354.1041 adopted to be effective June 26, 1997,22 TexReg
5826; transfened eifective September 1, 2001, as published in the Texas Register May 24,2002,27
TexReg 4561; amended to be effective January 1,2012,36 TexReg 9282

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: Texas Administrative Code Page I of2

<

ADMINISTRATION
TÐ{ÀS HEALTH AI..[D HUI\4AN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Hearings Offr cer Responsibilities

(a) Fair hearings are conducted by an impartial hearings officer who:

(1) does not have a personal involvement in the case;

(2) was not involved in the initial determination of the action that is being contested; and

(3) was not the agency representative who took the action or the immediate supervisor of that
representative.

(b) The hearings officer's supervisor may reassign the fair hearing to another officer.

(c) Responsibilities. The hearings officer conducts the fair hearing as_an informal proceeding, not as a
ioimal õourt hearing, and is not required to follow the Texas Rules of Evídence or the Texas Rules of
Civil Procedure.

(1) General duties, The hearings offtcerl

(A) determines whether a client requested a fair hearing in a timely manner, or had good cause for
failing to do so;

(B) schedules a pre-hearing conference to resolve issues ofprocedure, jurisdiction, or representation,
if necessary;

(C) requires the attendance of agency representatives, or witnesses, if necessary;

(D) is prohibited fiom engaging ín e¡ parte communication, whether oral or witten, with a party or
tlte pá¡yt representative orwftnels relating to matters to be adjudicated; and

(E) auanges for reasonable accommodations for disclosed disabilities.

(2) During the hearing, the hearings offïcer:

(A) makes the official recording of the hearing;

(B) ensures that the appellant's and agency's rights are protected;

(C) determines whether there is a need for an interpreter;

(D) limits the number of persons in attendance atthe hearing if space is limited;

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: Texas Administrative Code Page2 of2

(E) controls the use by others of cametas, videos, or other reoording devices;

(F) administers oaths and affirmations;

(G) ensures consideration of all relevant points at issue and facts pertinent to the appellant's situation
at the time the action was taken;

(H) considers the appellant's changed circumstances, when appropriate and possible;

(I) requests, receives, and makes part of the record all relevant evidence;

O regulates the conduct and coutse ofthe fair hearing to ensure due process and an orderly hearing;

(K) conducts the hearing in a way that makes the appellant feel most at ease; and

(L) orders, if determined to be necessary, an independent medical assessment or professional
evàlúation to be paid for by the agency or the agency's designee,

(3) After the hearing, the hearings officer:

(A) makes a decision based on the evidence presented at the hearing;

(B) determines if the agency's or its designee's action is in compliance with statutes, policies, or
procedrues;

(C) allows the appellant to request and receive a copy of the recording at no charge;

(D) except as provided in subparagraph (E) of this parugraph, issues a timely written decision, and
incìuâes nnaingi of fact, conclusions of law, pertinent statutes, and a final order;

(E) issues a decision in THSteps cases cont¿ining the purpose of the hearing, the legal authority,
p.õa*a history, surnmary of ihe evidence, findings of fact, conclusions of law, and relevant
authorities; and

(F) to ensure compliance, orders the agency, its represenlative or designee to implement the order
*iìhí,,.in. äme limiti specifred in the relévant fede¡'al regulation, monitors compliance with the ordet,
and notifies program management if the order is not implemented,

Source Note: The provisions of this $357.5 adopted to be effective June 29,2009,34TexReg4292

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Texas Administrative Code Page I of I

Rul*>
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ADMINISTRATION
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Agency and Designee Responsibilities

(a) The agency must:

(l) accept a request for a fair hearing submitted within 90 days from the date on the notice of agency
actíon, or, under the Supplemental Nutrition Assistance Program, at any time during the SNAP
certification period;

(2) notiff the HHSC Appeals Division within frve days of the date the client expresses a desire to
appeal; and

(3) allow the client to appeal more than one action at the same time.

(b) The agency or the agency's representative or designee must:

(l) allow the appellant to review the appeal procedures in HHSC's policies;

(2) provide to the hearings officer and the appellant, at no cost, copies of all documentation and
evidence to be used in the fair hearing;

(3) appear at the scheduled,hearing;

(a) be prepared to explain and defend the decision or action taken against the appellant; and

(5) implement the hearings offrcer's final order within the time limit specifred in the relevant federal
regulation.

Source Note: The provisions of this 5357,7 adopted to be effective June 29,2Q09,34TexReg4292

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: Texas Administrative Code Page I of I

<>

ADMINISTRATION
TEX,{S HEALTH A\TD HUMAN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Burd.en of Proof in a Fair Hearing

The burden of proof in a fair hearing regarding a specific issue is progf_bf a preponderance of the
evidence. The irarty that bears the burdãn of pioof meets the burden if the stronger evidence, on the
whole, favors that barty, as determined by the hearings officer. Depending on the type of hearing, the
following apply:

(1) The agency or its designee bea¡s the burden ofproof'

(2) The nursing facility bears the burden of proof in transfer and discharge hearings.

Source Note: The provisions of this $357.9 adopted to be effective June 29,2009,34'fexReg4292

Ne>tt Pilc¡i: Pler¡i ous Page:

of

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: Texas Administrative Code Page I of2

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ADMINISTRATION
TEXA,S HEALTH AND HUMAN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Notice and Continued Benefits

(a) The agency must:

(l) follow the notice requirements set forth in the appropriate state or federal law or regulation for the
affected program;

(2) give clients timely and adequate notice, as appropriate, of the right to a fair hearing;

(3) explain the right of apPeal;

(4) explain the procedures for requesting anappeal1,

(5) explain the rightto be represented by others, including legal oounsel;

(6) provide information about legal services available in the community;

(7) continue benefits if required to do so by state or federal law or regulations of the affected program;
and

(8) not reinstate or continue SNAP benefits-if a client requests a fair hearing after the date his
certification period has ended'

(b) In Medicaid cases, except as specifically provided in federal regulations, the following apply:

(1) The written notice to an individual of the individual's right to a hearing must:

(A) contain an explanation of the circumstances under which Medicaid is continued if a hearing is
requested; and

(B) be mailed at least l0 days before the date the individual's Medicaid eligibilily or service is
scheáuled to be terminated, suspended, or reduced, except as provided by federal rules.

e)If ahearing is requested before the date a Medicaid recipient's service, including a service that
,"qnir"r prior aúthorization,is scheduled to be terminated, suspended, or reduced, the agency may not
tate tfrat proposed action before a decision is rendered after the hearing unless:

(A) it is determined at the hearing that the sole issue is one of federal or state law or policy; and

(B) the agency promptly informs the recipient in writing that services are to be terminated,
suspended, or reduced pending the hearing decision'

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: Texas Administrative Code Page2 of2

Source Note: The provisions of this $357.11 adopted to bc effective June 29,2009,34TexReg4292

Next Page Previous Fage

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: Texas Administrative Code Page I of2

<>

TITLE I ADMINISTRATION
PART 15 TE)G,S HEALTH AI.ID HUMAN SERVICES COMMISSION
CHAPTBII3ST HEARINGS
qUBCHAPTETI A TINIFORM FAIR HEARING RULES
RULE $3s7.13 Appellant Rights and Responsibilities

(a) Requesting an Appeal. Only the appellant or the appellant's authorized representative has the right
to appeal an action bY an agencY'

(b) Dwing the appeal process, the appellant has the right to;

(1) reapply for assistance;

(2) receive continued benefits ifrequired by state or federal regulation or statute;

(3) confer with supervisory staff within the appropriate agency about the case prior to the hearing;

(4) continue with the fair hearing after a case adjustment or correction is made;

(5) request that reasonable accommodations due to disability or language comprehension be provided
at the hearing at no cost;

(6) make an audio recording of the fair hearing;

(7) examine at a reasonable time before the date of the hearing and during the hearing:

(A) the content of the appellant's case file; and

(B) all documents and records to be used by the agency or the skilled nursing facility or nursing
facility at the hearing;

(8) review the appeal procedures outlined in agency policy; and

(9) request a copy ofthe official recording at no charge after the decision is issued.

An
(c) al counsel may send written interrogatories or.
reques rmation. The written interrogatories mustte clear
and co d be submitted no less than 20 days prior to the
hearing,

(d) Procedural Rights. The appellant has the right to:

(1) present the case personally or with the aídof others, including but not limited to the appellant's
representative or legal counsel;

(2) bring witnesses;

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: Texas Administrative Code Page2 of2

(3) present information about all pertinent facts and circumstances;

(4) present arguments or address anything about the case without undue interference;

(5) confront and cross-examine adverse witnesses; and

(6) submit documentary evidence to the hearings officer before, during, or after the hearing as allowed
Uy ífre hearings officer. Evidence submitted after the hearing, if accepted, must be entered into the
record and shared with all parties'

(e) Appellant's Responsibilities, The appellant or the appellant's authorized representative is responsible
for:

(1) participating in the fair hearing; and

(2) informing the hearings officer prior to the fair hearing that the appellant needs an interpreter or
other accommodation due to a disability.

Source Note; The provisions of this $357.13 adopted to be effective June 29,2009,34TexReg4292

trlrly.1. P:.iqc 1:r, q19 ir..r¡1 5 P.¡r¡c

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: Texas Administrative Code Page 1 of I

<>

TITLE I ADMINISTRATION
PART 15 TEXAS HEALTH AND HUMAN SBRVICES COMMISSION
CHAPTER 357 HEARINGS
SUBCTIAPTER A UNIFORM FAIR HEARING RULES
RULE S357.1s Scheduling Hearings and Notice Requirements

(a) Scheduling:

(1) Except as provided by paragraph (2) ofthis subsection, the hearings officer schedlles fair hearings in the
oi¿êr in whi"tt ihe requests âre rèceived and determines a reasonable date, time, and place for the fair hearing,

(2) For good cause, the hearings officer may schedule fair hearings other than in the order in which the
requests were received.

(3) The hearings officer must expedite hearing requests as provided in $357.17(b) of this subchapter (relating
to Types of Hearings).

(b) Notioe Requirements. No less than 14 days prior to the fq
hearing, the fair hearings.office sends all parties
ùotl"r of the dàte, time, and place of the scheduled hearing. The notice informs the appellant:

(l) ofthe basis for the action or intended action taken by the agency or its designee;

(2) ofthe fair hearing Procedures;

(3) of the name, address, and telephone number of the person to notiff in the event the appellant cannot attend
the hearing;

(4) of legal services that may be available to provide representation at the hearing;

(5) ofthe requirement to contact the hearings officer before the soheduled hearing to request reasonable
aôcommodations due to disability or language comprehension;

(6) that the fair hearing will be dismissed for failure to appear without good cause;

(7) that documents to be used in the fair hearing are available for appellant's examination at a reasonable time
before, during, and after the hearing; and

(8) that the case file is available for review upon request.

Source Note: The provisions of this $357,15 adopted to be effective June 29,2009,34TexReg4292

llrlxl Facìai ¡¡¡;.7jr,rr1s pDcle

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: Texas Administrative Code Page I of 2

<
ADMINISTRATION
TEXA,S HEALTH AND HUIVIAN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Other Procedures

(a) Postponement, The hearings officer considers a posþonement for a hearing only if the appellant or
his authorized representative oontacts the appropriate appeals office before the scheduled hearing is to
occur.

(l) SNAP Fair Hearings--The appellant is entitled to receive one posþonement of up to 30 days.
Additional posþonements may be approved if the hearings offioer determines that there is good oause.

(2) All other Fair Hearings--The hearings offrcer may posþone a fair hearing if the hearings offtcer
determines that good cause exists,

(3) The hearings officer must state in writing the decision on the request to postpone and send it to the
appellant and agency,

(b) Dismissals.

(1) The hearings officer dismisses the fair hearing if the appellant fails to appear at the scheduled
hearing,

(2) The appellant will have 30 days to submit in writing a request to re-open the hearing and the
reasons that he failed to appear at the scheduled fair hearing.

(3) The hearings officer will consider the request and determine whether the appellant had good cause
for missing the écheduled hearing, If the hearings officer detormines the appellant had good cause for
failing to ãppear, the hearings officer will re-open the hearing and set a new hearing date'

(4) The hearings officer documents the dismissal in writing and sends the decision to the parties.

(c) 'Withdrawals,

(1) Only the appellant or his or her authorized representative can withdraw the request for appeal'

(2) The appellant or his or her authorized representative must make the request to.withdraw in writing
tothe hearings offioer, anageîoy representative, or designee.

(3) If the appellant or his authorized to withdraw the appeal, he mu_st
-
cònfirm theiãquest in writing. If a wr the hearings officer must notiff the
appellant in writing that if thé written l0 days, the appeal will be
withdrawn based upon the original oral request'

(a) An oral request to withdraw during a hearing will be accepted in lieu of a written withdrawal'

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: Texas Administrative Code Page? ofZ

(5) If an appellant dies during the appeal process, the hearings officer considers the appeal withdrawn
unless the hearings offìcer is notified that the authorized representative or the appellant's executor
intends to pursue the appeal.

(d) Recessed Fair Hearings, Once the hearing has begun, the hearings officer may recess the hearings
proceedings if the hearings officer finds good cause for the recess. Following notice to both sides, the
hearings officer may reconvene the hearing, if necessary,

(e) Administrative Review, An administrative review of a hearings decision is provided as set forth in
$$357.701 - 357.703 of this chapter (relating to Purpose and Application, Definitions a¡rd Process and
Timeframes).

(f) Procedural Review. A procedural review is available to clients and applicants for hearings decisions
relating to programs not covered under Chapter 31 (TANF), Chapter 32 (Medicaid), or Chapter 33
(Nutrition Assistance Programs) Human Resources Code.

(1) An appellant or his or her authorized representative may make a timely request for a review of the
decision,

(2) A request for a review of the decision must be postmarked within 30 days of the date of notice of
the hearings officer's decision, and must be addressed to the hearings administrator.

(3) The scope of the review is limited to determining whether the hearings officer followed laws,
procedures, and program rules introduced in the hearing,

Source Note: The provisions of this $357.19 adopted to be effective June 29,2009,34 TexReg 4292;
amended to be effective June 14,2010,35 TexReg 5033

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: Texas Administrative Code Page I of2

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ADMINISTRATION
TE)GS HEALTH A}TD HUIVIAN SERVICES COMMISSION
HEARINGS
UNIFORM FAIR HEARING RULES
Hearings Offrcer Decision and Actions

(a) Time Limits for Issuing Decisions.

(1) SNAP hearings--60 days from the date the appeal request is received by the agency or designee.

(2) Non-SNAP hearings--90 days from the date the appeal request is received by the agency or
designee.

(3) The time limit for issuing a decision may be extended by as many days as the fair hearing is
postponed or recessed at the request ofthe appellant.

(b) Decisions by Hearings Officer. The hearings offtcer issues a decision based exclusively on
testimony and evidence introduced at the hearing. The hearings offtcer must:

(1) issue a written decision in English;

(2) provide the appellant with a copy of the decision; and

(3) provide a tanslated cover letter in Spanish for hearing decisions where a Spanish interpreter was
use¿, fne cover letter instructs the appellant to call the hearings officer if he needs assistance to
understand the decision. An appellant who indicates by telephone, in person, or in writing tþat
assistance is needed to understand the decision must receive an explanation of the hearing decision
from bilingual persomel within a reasonable period.

(c) Sustained Decisions in THSteps Appeals--If the decision sustains the agency action reducing,
suspending, denying, or terminating a requested service:

(l) on the basis that there is no federal financial participation, the decision must contain an
eìplanation of the basis for the hearings officer's decision, applying the state and federal law to the
individual's particular request; or

(2) on the basis that the servioe is not medically necessary, the decision must contain an explanation of
the medical basis for the hearings offlrcsr's decision, applying the agency's policy or the accepted
standards of medical practice to the individual's particular medical circumstances; and

(3) All THSteps decisions must contain legal authority, purpose of the hearing, procedural history,
summary of evidence, relevant authorities, findings of fact, and conclusions of law,

(d) Decisions that are Reversed. The hearings offrcer reverses a decision of the agency or designee if
thä action or inaction is not supported by the evidence introduced at the hearing, and is not supported
by statutes, policies, or procedures applicable atthe time the action or inaction occurred. The agency

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: Texas Administrative Code Page2 of2

may be instructed to issue retroactive payments or restored benefits in accordance with applicable rules,
regulations, and statutes,

(e) Decisions that are Upheld. The hearings officer upholds a decision of the agency or its designee if
the action is in accordance with statutes, policies, and procedures introduced at the hearing,

(f) Reopened Hearings--Appellant. The hearings officer may reopen an appeal and reconsider the
decision if, within l2 months of the decision date, the appellant presents evidence that:

(1) the hearings offrcer has determined the information would have affected the outcome of the
original decision;

(2) shows the original decision was not valid; and

(3) was not presented at the hearing by the appellant.

(g) Authority of the Hearing Officer to Re-issue a Decision. The hearings offìcer has the authority to
withdraw, revise, and re-issue a decision, The hearings officer may re-issue the decision within 20 days
of the date of the original decision if the hearings offtcer becomes aware of an error of law or fact that
would have affected the outcome of the deoision.

Source Note: The provisions of this 5357 .23 adopted to be effective June 29 , 2009 , 34 TexReg 4292

I'J<':xt- i'i'i,.;l'. f.r:r,ir;u-s IarJ':

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Texas Administrative Code Page I of I

<>

TITI,E 1 ADMINISTRATION
PART 15 TEXAS HBALTH A}ID HUMAN SERVICES COMMISSION
C]ITAPTER 357 HEARINGS
SUBCHAP'IIIR R JUDICIAL AND ADMINISTRATTVE REVIEW OF HEARINGS
RULE $357.701 Purpose and Application

The purpose of this subchapter is to address the process for requesting administrative and judicial
review ófhearings. This subchapter applies to those hearings provided in this chapter that are related to
benefits provided under the public assistance programs of Chapters 3 I (TANF), 32 (Medicaid) and 33
(Nutrition Assistance Programs) Human Resources Code,

Source Note: The provisions of this $357.701 adopted to be effective September l, 2007,32 TexReg
5353;amended to be effective June 14, 2070,35 TexReg 5033

irlox L P;rqct ['reviorrs Ilarìe

List of Titles Back to List

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: Texas Administrative Code Page I of2

<>

TITLD 1 ADMINISTRATION
PART 15 TEXAS HEALTH A}TD HI,]MANT SERVICES COMMISSION
CHAPTER 357 HEARINGS
SUBCHAPTDR R JUDICIAL A\TD ADMINISTRATTVE REVIEW OF HEARINGS
RULE $3s7.703 Process and Timeframes

(a) The hearing offrcer makes the final administrative decision in a hearing for the HHS System agency
and its designees, unless, in those instances related to benefits provided under the public assistance
programs of Chapters 31,32 and33, Human Resources Code, the appellant or the appellant's
representative files a request for an adminisüative review of the hearing decision.

(b) The following provisions establish the process and timelines for an administrative review under this
subchapter.

(1) An appellant or the appellant's representative may make a timely request for an administrative
review of a hearing officer's decision,

(2)To be timely, a request for an administrative review of the hearing offtcer's decision must be
postmarked not iater than the 30th day after the date of the notice of the decísion and must be addressed
to the hearings administrator, A request for administrative review will be considered timely if filed after
30 days, where Appellant demonstrates good cause. Exception: The 30 days does not begin until a new
decision is issueôif the appellant or appellanfs representative is working with the hearing officer to
reopen or reschedule the hearing.

(3) Within l0 days of receipt of the request for administrative review, the Commission designates a
HHS System attomey to haridle the administrative review of the hearing decision on behalf of the HHS
System Agency. The assigned attorney reviews the hearing decision and the hearings record upon
which it iJbased for error,s of law and errors of fact using the "preponderance of evidence" standard.
This standard means that the evidence as a whole shows that the fact sought to be proved is more
probable than not.

(4) The attomey completes the administrative review and notifies the appellant in writing of the results
not later than the 15th business day after the date the attorney receives the request for review.

(5) When an administrative review is conducted, the attorney makes the final decision for the HHS
system agency and its designees.

(c)If the attomey's final decision in the administrative review is adverse to the appellant, judioial
review may be obtained by filing for review with a district court in Travis County not later than the
30th day after the date of the notice of the final decision as provided under Government Code Chapter
2001.

SourceNote:Theprovisionsofthis 9357.703 adoptedtobeeffectiveSeptembert,200T,32TexReg
5353; amended to be effective June29,2009,34 TexReg 4292; anended to be effective June 14, 2010,
35 TexReg 5033

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: Texas Adminishative Code Page2 of2

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Lli i lll It l[, I I

htþ://info,sos,stête.tx.us lplslpubheadtac$ext.TacPage?sl=R&app=9&p-dir&p-rloc:&pJl,,. 91512014
APPENDIX 5
 r

TE)ITS MEDICAID
PnOVIDER PNOCEDURE S MAN UAt

Volume PNOVIDER
2 HNSDBOOKS

DURABI¡ MEDICAI EqU IPMENT, MEntCnl SUpPLIES,
AND NUTRITIONAI- PROOUCTS HAN DBOOK

ancl Hunt¡tn Scrvíccs Colnlrirsìon
TE)(AS MEDICAID Pfl0VIDER PR0CEDURES MAIIUA[: V0[. 2

DURABLE MEDICAL EQUIPMENT, MEDICAL
SUPPLIES, AND NUTRITIONAL PRODUCTS
HANDBOOK

u| TEXAS
Health and Human
Servlces Commlssion

January 201 Z
TEX,{S MEDICÂID PROVIDER PROCEDURFJ MANUAL: VOL.2

DM-2
CP'I' ONLY . COPYRJGTfT 20I I AMßRICAN MIiDICAL ÁSSOCÍÀTION. ALL NGHTS ßESIjRVBD'
 DURABLE MBDICAL EQUIPMENT, MEDICAL SUPPL¡ES, AND NUTRITIONAL PRODUCTS HANDBOOK

DURABLE MEDICAL EQUIPMENT, MEDICAL
SUPPLIES, AND NUTRITIONAL PRODUCTS
HAN DBOOK

Table of Contents
1. Generlllnformatlon .'"""DM-9
2, Texa¡ Medlcald (Tltle XIX) Home Health Servlce¡ " 'DM-9
2,1 Enrollment. ""'DM-9
2,1 ,1 ChangeofAddressorTelephoneNumber """'DM'l0
2.1,2 Pendlng Agency Certlflcatlon , ' ' DM-l 0
2.2 Servlces, Beneflts, Llmltatlons and Prlor Authorlzatlon ' ' ' ' 'DM'f 0
2.2.1 Home Health Servlces.., ,. '. ., ,,, DM-l1
2.2.1.1 CllentEllglbllity'..,,.
2,2,1.2 Prior Authorlzation Requests for clients with Retroactlve Ellglblllty . ' ' ' DM-l1
2.2.1,3 Prlor Authorlzat¡on. .
DM.l2
2,2.2 Durable Medical Equipment (DME) and Supplles,.. , . ., DM-I3
'
2.2,2,1 Modìflcations,Adjustments,and Repalrs.
2,2,2,1.1 Accessorles,
2,2,2,2 PriorAuthorlzation'. ""'DM-ló
2,2.3 Medical SuPPlles,' ,. DM-l8
. . DM-19
2,2,3.1 5upplY Procedure Codes
2,2,3,2 PrlorAuthorlzation...,., ,. DM-19
2.2,3,3 Cancelllng a Prior Authorizatlon , ' DM-20
2,2.4 Augmentatlve Communlcatlon Device (ACD) System " ' ' DM-20
2,2,4,1 AGDSystemAccessories. "'"'''DM-22
2,2,4.1.1 CorrytngCose,,, ""'DM-22
2,2,4,1,2 Nonwarrantyïepolrs,, ''"''"DM-22
2,2.4,1,3 Trlal Perlod . ...DM-22
2.2.4.1,4 Rental .,. DM-23
2.2.4.r.5 Purchase ...DM-23
2,2,4.1,6 RePlacement',,,"', .DM-23
2,2.4.1,7 Software ,,DM.23
2.2.4,2 Non-Covered ACD System ltems,. ' ' ' ' DM-23
2,2.4,3 Prlor Authorlzatlon ' ÐM-24
2,2,5 Bath and Bathroom EqulPment.
2.2.5.1 Hand-Held Shower Wand . . ..
2.2,5.2 BathEqulPment. ,., DM-26
2.2.5.2,1 Eoth or Shower Cholrs,Tub Stool or Bench, Tub Transfer Bench ' DM-26
DM-27
2,2,5.3 Bathroom EquiPment
2.2.5,3.1 Non-flxed Totlet Rall, Bothtub Roll Attochment, and Rolsed Tollet Seat, , DM-27
2.2,5.3,2 Toilet Seot Llfts , ,.,, .,
2.2.5,3,3 Commode Cholrs and Foot Rests'
2,2,5,3,4 Portoble Sltz Bdth ', ' .,
2.2.5.3.5 Both Llfts DM-30
2,2,5.4 PriorRutfrortzat¡on
2.2.5.5 Documentatlon Requlrements, '''
2,2.5,5.1 Tollet Seat Llfts

DM.'
CPl'ONLY ' COgYRICHT ZO¡ I AMERICAN MEDICÁL ASSOCIATfON. ALL RICTI'Is RISERVED'
rEX.As MEDIC^ID PROVIDER PROCEDURES MANU,\L: VOL,2

2,2.6 Blood Pressure Devlces' DM-32
2.2.6,1 Prior Authorizatlon, . . ,.. DM-33
'
, ... DM-33
2,2.7 Breast PumPs
2.2,7,1 PrlorAuthorlzatlon ,., DM-34
2,2,8 Cochlear lmPlants..,.,., ' DM-34
2.2,g Contlnuous Passive Motion (CPM) Devlce. "" ' ' ' DM-34
2.2.9.1 Prlor Authorlzatlon ' ' , DM-34
2.2.10 Diabetic Equlpment and 5upplies DM-34
2,2."t0.1 Obtalning Equlpment and SuPP lles Through a Title XIX Form. ' . ,.. DM-35
2.2.10,2 Obtalnlng EquiPment and SuPP lles Through a Verbal or Detalled
Wrltten Order. , , DM-3s
2.2,'10,3 Glucose Testing Equipment and Other Supplies, ' ' DM-36
2.2.10.3.1 PriorAuthorlzotion DM-37
2.2,10,4 Blood Glucose Monltors . DM-37
2.2,10.4,1 PrlotAuthorlzation DM-37
2.2,10.5 External lnsulln Pump and Supplies. DM-37
2.2.10,5,1 PrlorAuthor¡zatlon.,, DM-38

2,2J0.6 lnsulln and lnsulin Syringes. DM-39
2,2, 11 Hospital Beds and Eguipment , ' ,, DM40
2,2,11,1 Prlor Authorizatlon.,,,., ,, DM-40
2,2,11,2 Documentatlon Requlrements, '. ' '. ., DM-41
2,2,11,3 Mattresses and 5upport Surfaces , . ' ,, DM4l
2,2.t1.3,1 DocumentationRequlrements ,,,DM-42
2,2,1 1.3.2 Group I SupportSurfaces. ',. ' ,.DM-42
2.2.1 1,i,3 GrouP 2 SuPPort Surfoces,
2.2.1 ,3.4
1 Group j SuPPort Surfaces, DM 44
DM-45
2,2.11.4 Equlpment and Other Accessorles
2,2,1 L4,1 Prlor Authorlzotion DM45
2,2,11,5 DecubitusCareAccessories,,.,, "DM45
2.2,'11.6 Replacement, ,, DM-46
2.2,1 1,6,1 Prlor Authorlzdtion DM.46
2.2.11,7 Non-covered ltems..,,,,, DM46
2.2.11.8 Hospital Beds and Equlpment Procedure Code Table ' ' ' ' ' ' DM-46
2,2,'12 lncontinence SuPPlles'
... DM-47
2.2.12.1 Skln Sealants, Protectants, Moisturizers, and Olntments for
lncontinence-Assoclated Dermatitis,,. .,ÐM-47
2.2.12.2 Dlapers, Briefs, Pull-ons, and Liners , ,, ' ,. DM-48
2,2,12.3 DlaPer WiPes . ' , ., ,. .. DM-48
2,2J24 UnderPads. ,. DM-48
2.2.'1'2.5 Ostomy SuPPlles " ' ,
2.2.12.6 lndwelling or lntermittent Urlne Collectlon Devices , " ' " '
2,2,12,6,1 Indwelllng Cathetets and Related Insertion Supplies' ' '
2.2.12.6.2 lntermtttent Cotheters and Relqted lnsertion Supplies '
2.2,12.6,3 ExternalUrlnaryCollectlonDevlces,' .,.....DM-50
2,2,12,6,4 Urinals and Bed Pans . .......DM-50
2.2,12,7 Prior Authorlzatlon, , ' ,....,, DM-50
2,2.12,8 Documentatlon Requlrements,.,, ' ', '.,, ' ..., ,, . DM-50
2.2,'12.9 lncontinence Procedure Codes wlth Llmltatlons ,..,, ,, DM-50
2,2.13 lntravenous (lV) Therapy Equlpment and Supplies ' ' ' ' .,..,,, DM-5s
2.2,13.\ Prlor Authorization, , , . ,., , ,, DM-56
2.2.13,2 Documentatlon Requirements.. '.. ,
.... , ,. DM-57

DM.4
CpI ONLY - COPYRICHT 20l I AN'lEftlCAN MBDICAL ASSOCIA'tlON' RICHTS RtiSDRVüD
^LL
 DURADLB MEDICAL EQUIPMENT, MEDIC.A,I, SUPPLIES, AND NUTRITIONAL PRODUCTS HANDBOOK

2.2.14 Mobility Aids. ,.

2,2,14,1 Canes, Crutches, and Walkers
2,2J4.2 Wheelchairs, DM-58
2,2.14.2.1 PrlorAuthorlzation DM-58
2,2,1 4,2,2
Documentatlon Requlrements DM-58
2.2.14.3 Manualwheelchalrs-Standard, Standard Hemi, and Standard Reclinlng. , . . DM-59
2.2,14.3.1 Prlor Authorlzatlon ', ' , DM-59
2,2.14.4 Manualwheelchairs-Lightwelght and Hlgh-strength Llghtwelght ,. , ,. , ,,. DM-óo
2,2,14.4.1 PrlorAuthorlzotlon DM 60
2.2,14,5 Manual Wheelchairs-Heavy-Duty and Extra Heavy .
'' DM-60 Duty
2.2,14.5,1 Prlor Authorlzatlon , ., . ' ' ..DM-6t
2,2.14,6 Wheeled Moblllty Systems ', ... . DM-61
2,2.14.6.1 Definitlons and Responslbilitles',,,, ,.DM-61
2,2,14,6.2 Prlor Authorizatlon,.,,,,, .. DM-62
2,2,14.6.3Documentatlon Requlrements,',,', .. DM-62
2.2.14,7 Manual Wheeled Mobility System - Tilt-in-5pace DM-ó3
2.2.14.8 Manual Wheeled Mobility System- Pediatric Slze DM-63
2,2.14,9 Manual Wheeled Moblllty System -Custom (lncludes Custom
Ultra-Lightwelght) ,,, ', ,. . DM-63
2.2.14.9.1 Prior Authorlzatlon , ,DM-64
2.2.14.10 seatlng Assessment for Manual and Power custom wheelchalrs. ' ' DM-ó5
2.2.14,t0,1 PriorAuthorlzation... ',.,".DM-65
2,2,14.10,2 Documentatlon Requlrements ' DM'66
2,2,14,11 Flttlng of Custom Wheeled MobilÍty Systems, ' "" DM-66
2.2.14,1 l,l Prior Author¡zotlon DM 67
2.2.14,1 1,2 Documentat¡on Requlrements,'..' DM 68
2,2,14,12 PowerWheeled MobllltySystems-Group 1through Group5 ' '' '" DM-68
2,2,14,12.1 Prior Authorlzation...,','..,' DM.69
DM 69
2.2,14,12.2 Group I PMDs " ",
2.2,14.12.3 Group 2 PMDs .....DM-70
2.2,14.12.4 Group 3 PMDs .. , .. DM-70
..,,.DM-71
2.2,14.12.5 GrouP 4 PMDs "
2,2.1 4,12,6 2,2.14.12,6 Additíonol Requlrements - Group 2 thtough Group 4
No-Power Optlon., ,. DM-72
2,2,14,1 2,7 Group 2 through Group 4 Slngle-Power Option .. DM-72
2,2,14.1 2.8 Group 2 through Group 4 Multlple'Power OPtlon ,,,,, ' """" DM-72

2.2.14,12.9 Group 5 PMDs DM 72
2.2.14.12,10 Group 5 MultlPle-PMDs...,, DM 74
2,2,14,13 Wheelchalr Ramp-Portable and Threshold . ' ,,,...DM-74
2,2,14.14 Power Elevating Leg Llfts, .,. , .. 0M-74
2,2,1 4,1 4,1
Prior Authorlzotìon ,.....DM-74
. ... .. DM-75
2.2,14.14.2 Documentotlon Requlrements. ' '. ' '
2.2.14.15 Power Seat Elevatlon System .,..,.DM-75
2.2.1 4,1 5,1 Prlor Authorlzatlon,.',, ,,,.,..DM-75
2.2.14.15.2 Documentatlon Requirements. ...'. ,.....,DM-7s
2.2.14,16 Seat Llft Mechanisms ,
.,,,., DM-7ó
2.2.14,16.1 Prlor Authorlzotion ,, ' ,

2,2.14,1 6,2 Documentatlon Requlrements . , ,... DM-76
2.2.14,17 Batteries and Battery Charger., .'. ", .... DM-76
2.2.14.1 7.1 Prlor Authorlzation.,,, ,., .. DM-77
2,2,14.1 7,2 Documentatlon Requlrements ...,.DM-77

DM-5
CP'f'ONLY . COf)YRIGHT 2¡I I ÁMERICÀN MEDIC¡{L ASSOCIATION' '{LL RIGHTS RESERVBD.
TIiX S MBDICAÍD PROVIDER PROCEDURES MANUÂL: VOL' 2

2,2.14,18 Power Wheeled Moblllty Systems- Scooter '
DM.77
2,2,14.18,1 PrlorAuthorlzation,, ",'.'
2.2,14.1 8,2 Documentatlon Requiremenîs DM-78
2.2J4.19 Cllent Lift DM-78
2.2.14,19.1 Prlor Authorization ,,., ' ' DM.78
2,2,14,20 Electrlc Lift, . . DM-78
2.2,1 4,21 Hydraulic Lift. ... DM-78
2,2.14,21.l Documentatlon Requlrements' . ' , ' ' ' , ' . , . DM-78
2.2.14.22 Standers DM-78
2.2.14.22.1 Prlor Authorlzatlon , . ", DM-79
2,2.14,22,2 Documenìatlon Requlrements
2.2,1 4,23 Ga it Tra iners
2.2,1 4,23,1 Prior Authorlzation .
2.2,l4.24Accessorles,Modificatlons,AdJustmentsandRepalrs .,,.,,DM-79
2,2,1 4,24.1Authorlzotlon
Prlor ,,, DM-80
2,2,14,25 Replacement.,, ..
2.2.14,26 Procedure Codes and Limitations for Moblllty Alds .. ,
,, . , ' DM-81
2,2.15 Nutrltlonal (Enteral) Products, Supplles, and Equlpment., . ',, ,
' '. DM-89
2,2.15,1 Enteral Nutrltlonal Products, Feedlng Pumps, and Feedlng Supplies . ' , , ' '. DM-89
2,2,15,2 PrlorAuthorlzationRequlrements .,, ', '.,DM-90
2.2.15,2.1 EnterqlFormulas ,,DM-91
2,2,1 5.2,2 Nasogastric, Gastrostomy, or Jeiunostomy Feeding Tubes, ', ...,.¡.,... DM-91
2.2,15,2,3 Enteral Feedlng PumPs
2,2,15,2,4 EnteralSupplles.,,,..",.,,.,
2,2J5.3 Documentation Requlrements. ' .. ' ' ..,,. DM-92
2.2,16 Osteogenic Stlmulation,.,,. .... . DM-92
2,2,16.1 Ultrasound Osteogenlc Stlmulator, ' ..,,. DM-93
2,2,16.2 Professlonal Servlces DM-93
2.2.16,3 Prlor Authorizatlon. , DM-93
2.2,16.3,1 Noninvasive ElectrlcalOsteogenlc Stlmulator ,,. ,, DM-93
2,2,1 6.i.2 lnvaslve Electrlcal Osteogenic st¡mulotor DM-94
2.2,16.3,3 Ultrasound Osteogen¡c ít¡mulator ,. , ,,,,.,,DM-94
2,2.16,4 Documentation Requlrements. ', ,.. ,,,,..DM-94
2.2) 7 Phololhera PY Devf ces, .,.... DM-9s
2.2.1 8 Prothrombln Tlme/lnternational Normallzed Ratio (PTllNR) Home
Testing Monitor. ... ., , DM-95
2,2.18.1 PrlorAuthorizatlon DM-95
,

2.2.19 Resplratory Equipment and Supplles .. DM-96
, '..
2,2J9,"1 PrlorAuthorlzatlon ,. DM-gó
2.2,19.2 Nebullzers ,. DM-96
2.2,19.2,1 Prior Authorlzotion ', '. .,. DM-97
2,2,19.3 Vaporlzers ,. DM-97
2,2.19,3.1 PriorAuthorlzation,",,,',, ,DM-97
2.2,19.4 Humidlflcatlon Unlts ,. DM-97
2.2,19,5 Secretion Clearance Devices..,, ' ' DM-98
2.2.19.5.1 lncentlveSpirometer.'.',,,' .DM-98
2.2,19,5.2 lntermlttent Posltlve-Pressure Breothlng (IPPB) Devices, ' ' ' ,DM.98
2,2,19.5.3 Mucous ClearanceVolve',,., ,,',,,''.DM-98
2.2.19.5,4 Prlor Authorlzation..'...,.,, ,DM-98
2.2,19.6 Electrlcal Percussor ... DM-99
2,2,19.6.1 Prior Authorlzotion ,,,, ', ',,, '
... DM-99

DM.6
CPT ONLY . COPYRICHT 20II AMúRICAN MIDICAL ASSOCfAI'ION' ALL IìIGHTS RESBRVED.
 DURABLE ME,DICAL EQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAI, PRODUCTS }IANDBOOK

2.2,19.7 Chest Physlotherapy Devlces ,,,, DM-99
2.2.t9.7.1 HFCWCS. .,,.,DM-99
2,2,1 9.7.2 Cough-Stlmuloting Device (Cofflotor), .,,,,DM-99
2.2.19.7.3 PrlorAuthorlzotlon',,, ...,DM-|00
2,2,19,7,4 Documentatlon Requlrements DM-100
2.2.19.8 Posltlve Alrway Pressure System Devlces, ..
2,2,19,8,1 PrìorAuthorizatlon ,DM-t01
2,2,19,9 Contlnuous Posltlve Airway Pressure (CPAP) System
2.2.19.9.1 Adult CPAP (19 years of age and older) .

2.2.19,9,2 PedìotrlcGPAPCrlterla
2.2.19,9.3 PrlorAuthorlzatlon,,, .,DM-102
2,2,19,10 Bl-level Posltlve Alrway Pressure System (BiPAP S) Without Backup . , , , . , , DM-1 02
2,2,19.10.1 PriorAuthorlzqtlon,,, ,",,,DM-103
2.2.19,11 Bi-level Posltlve Alrway Pressure System With Backup (BIPAP 5T), ,DM-103
2.2,1 9.1 Ll Prlor Authorlzation .DM-103
2,2.19,12 Home Mechanlcal Ventllatlon Equlpment, ,,. ,.,DM-103
2.2.19.1 2,1 Prlor Authorlzatlon,,',. ,DM-104
2,2]9,13 Volume Ventilators, ' , ........DM-l04
2.2.1 9,r3,1 Ventilatìon Modes,'..., ,DM-104
2.2,1 9.1 3.2 Breath Types ,DM-104
2,2.19.1 i,3 Prior Authorizatlon',,., .DM-t04
2,2,19,14 Negatlve Pressure Ventllators' . .,,..,,.DM-'t04
2,2.19,1 4,1 Prlor Authorlzatlon , , ' , , ..DM-|05
2.2.19,15 Ventilator Servlce Agreement ,
DM-10s
2.2.19.1 5.1 Prior Authorlzatlon . ' , ' DM-105
2.2,19,1 5.2 Documentatlon Requlrements.',.,
2,2.19 Jl6 Oxygen Therapy , DM-l0s
2,2,19,17 Oxygen Therapy Home Delivery System ' ' ' ' ' .DM-106
2.2,19.18 Prlor Authorization. , ' , ,DM-106
2.2.1 9.19 Documentatlon Requlrements,
2,2,19,19,1 OxygenTherapy Recertlflcatlon., ¡ "'.,,.¡.. ¡ ¡.
2,2,'l 9,20 TracheostomY Tu bes,
2,2,19,20,1 Prior Authorizotlon . , , ' , ,,.DM-108
2,2,19,21 Pulse Oximetry ,.DM-l08
2.2.19,21.1 Prlor Authorlzatlon . '. ' .,DM-!08
2.2J9,22 Procedure Codes and Llmltations for Resplratory EqulPment
and Supplles DM-108
2.2,20 Special Needs Car Seats and Travel Restralnts DM-1',t1

2.2.21 Subcutaneous lnjection Ports DM-111
2.2.21 ,1 Prior Authorlzatlon ' , ,
2,2,21,2 Documentatlon Requlrements'..,. ' ' '., ' ' ..,,DM-il2
2.2.22 Total Parenteral Nutrltion FPN) Solutions,, , ' '.. ' . ..,DM-t 13
2,2,22j Prior Authorlzatlon. , .. ,.DM-l14
2,2.22,2 Documentation Requirements'. '. , , ....DM-114
2,2.23 Wound Care Supplies or Systems
2,2,23J Wound Care SuPPlles '., , DM-l16
2,2,23,2 Wound Care SYstem. DM-116
2.2.23.2.1 NPW| System DM-!16
2,2,23.2,2 Pulsottle Jet lrrlgatlon Wound Care System ' DM-ll7
2.2.23,3 Noncoveled Services.,..
2,2.23.4 Prior Authorization....,'

DM-7
CPT ONLY . COPYRICH'I'20I I AMÊRICAN MSDICAL ASSOCIATION' AI,L RICI I'IS RESIIRV¡D'
TEXAS MEDICÁID PROVIDER PROCEDURES MANU,{L: VOL.2

2.2,23,4,1 Wound Care SuPPlies ' ' ' ' "DM-tt7
2.2,23,4,2 Wound Core SYstem ,, ,, '
2.2.23.5 Documentatlon Requilements'
2,2,23.5.1 Wound Care SuPPlles.,. ,

2,2,23,5,2 Wound Care SYstems . ' ' ,

2,2,23,6 Wound Care Procedures and Limltatlons
2.2.24 Llmliallons, Excluslons ,,
2.2.25 Procedure Godes That Do Not Requlre Prior Authorlzatlon,, .,,'' "
2.3 Other/Speclal Provl¡|ons...'. , DM-l24
2,3,1 Medlcaid Relatlonshlp to Medlcare ' ,. ,.DM-l24
2.3,1.1 Possible Medicare Clients'.. , ' , . ., DM-124
2.3.1,2 BenefìtsforMedicare/Medlcald Cllents ,.DM-l25
2,3.1.3 Medicareand Medlcald PrlorAuthorlzat¡on.,.,.'.,. .,DM-l25

2.4 Cla¡ms Flllng and Relmbur¡ement ..
2.4.1 Clalms lnformation.
2,4.1,1 Beneflt Code
2.4.2 Relmbursement.,,,
2,4,3 Prohibltlon of Medicald Payment to Home Health Agencies Based
on OwnershiP, , ,

3. Clalms Re¡ources ' DM'128

4. GontactTMHP. "DM-129
DM-129
5. Forms .
DM-130
DM.l DME Certiflcatlon and Receipt Form (4 pages)
DM,2 External lnsulin PumP
DM.3 Home Health Services (Title XIX) DME/Medical Supplles Physlclan order
Form lnstructlons (2 pages). ' 'DM-135
(DME)/Medical
DM.4 Home Health Servlces (Tltle XIX) Durable Medical Equipment
SuppllesPhyslcianOrderForm """'DM-137
DM.5 Addendum to Home Health Servlces (Tltle XIX) DME/Medlcal Supplles Physlclan
Order Form ' 'DM-138
DM.ó Home Health Services Plan of Care (POC) lnstructions
DM-l39
DM-l40
DM.7 Home Health Services Plan of Care (POc)
DM.8 Home Health 5ervlces Prlor Authorlzatlon Checkllst
..,,DM-l41
DM.9 Medicald certlficate of Medlcal Necesslty for chest Physiotherapy Devlce
Form-lnitlal Request. ,.,,DM-142
DM.l O Medicaid ceftificate of Medlcal Necesslty for chest Physlotherapy Devlce
Form-Extended Request', .' ...,,DM-143
DM.1 1 Medlcald Certificate of Medlcal Necesslty for CPAP/BiPAP or Oxygen Therapy
,..,,DM-l44
Form,,,,'. .,,,.DM-145
DM.f 2 Pulse Oxlmeter
DM.l3 Statement for lnltlal Wound Therapy System ln-Home Use (2 pages) ,,,,.DM-l46
(2
DM.l4 Statement for Recertlflcation of Wound Therapy System ln-Home Use Pages) , ' . , , DM-148
DM.l 5 Ventilator Servlce Agreement .DM-l50
DM.16 wheelchair/scooter/Stroller Seatlng Assessment Form (CCPlHome Health
DM 151
Servlces) (7 pages)
ó. Clalm Form ExamPles
DM-l58
DM.t 7 Home Health Setvlces DME/Medlcal 5upplies ,.,DM-l59
lndex.. ' DM-lóo

DM.8
cPToNLY.coPYRlcH.t20llAMERlc^NMEDlcALAssocl^TloN.ÀLLßlcH,I'sfl'fisEIVIJD.
 DURÂBLE MEDICAL EQUIPMENT, MEDICAL STJPPTIES, AND NUTRITIONAL PRODUCTS HANDBOOK

DURABLE MEDICAL EQUIPMENT, MEDICAL
SUPPLIES, AND NUTRITIONAL PRODUCTS
HANDBOOK
1. GENERAL INFORMATION
The lnformation in this handbook is intended for Texae Medicaid home health durable medical
eguipment (DME), DME medical suppller, and medical supply company providers. This handbook
pio*'la.r iniormation about the Texai Medicaid benefìts, policies, and procedures that are appllcable to
these providers,

This handbook contains information about Texas Medicaid fee-for-service benefits. For information
about managed care benetts, refer to the Texas Medicaid ManagedCare Handbook.
Managecl care carve-out services are administered as fee-for-sen¡lce benefits, A list of all carve-out
(Vol'
servicãs ß available ín Section 8, "Carye-Out Servlces" lnthe Medícsíd Managed Cøre Handbook
2, Provider Handbooks),

All providers are required to report suspected chlld abuse or neglect as outlined in subsection L,5'l'2'
"Reporting Child Abuse or Neglect" in Section 1, "Provider Enrollment and Responsibllitles" (Vol J,
GenerøI Information).

lmportønt All províders øre requíred to read ønd comply Jvith Sectton Províder Bnrollment and
' -1:
neíponslbiltttes. tn àddttlon to requìred complìance with all req-uirements speciJic to Texøs
¡øidicøld, it ís a vlolation of Texas Medtcøid rules when a proúder fails to prortlde healthcøte
servìces or ìtems to Medicald clients in accordønce with accepted medìcøI communlty
standørds ønd standqrds that govern occuPotìons, qs elcplairred in 1 Texas Admìnistrøtíve
Code (TAC) 5371,1617(a)(6)(A). Accordingly, in addítíon to being subiect to sønctionsfor
føilure to comply with the requirements that are specífc to Texas Medicøìd, prot)ders can
'alsobe
subiectto health-care
seryice
items ønd censure and
certifcatlonrequ mentatìon and
recotd møintenance,

Reþr to; Section l: Provider Bnrollment and Responsibllities (VoL I, Generallnformøtlon) for more
information about enrollment procedr res.

2. TEXAS MEDICAID (TITLE XIX) HOME HEALTH SERVICES

2.1 Enrollment
Enrolled providers of D )
provlder identiffer that
DME/MedicaI SuPPlier
All DME providers must be Medicare-certifìed be
providers that render custom DME wheeled mobtlity systems to Texas Medicaid clients must enroll in
at least one
Texas Medicaid as a specialÍzed/custom wheeled mobilify grouP provider and must have
qualifìed rehabilitation professlonal (QRP) Performing provlder'
Certiûed eRp provlders must enroll in Texas Medicaid as performing providers under DME provider
grouPs,

DM.9
CPT ONLY. COPYIUCIfT 20I J AMIiRICAN MED¡CALÂSSOCIATION. AÙL RICHTS RIISßRVED.
TEXAS MEDICAID PROVIDBR PROCEDURBS MANUAL: VOL.2

To enroll in Texas Medicaid as a QRP performing provider, indlvÍdual professionals must be certífìed
by the National Registryof Rehabilitation TechnologySuppliers (NRRTS) or Rehabilitation Bngineerlng
aåd Assistlve Tech-nology Socieby of North America (RESNA) and must enroll as a performing provider
under a Specialized /Custom Wheeled Mobility group.
proyiders may download the Texas MedÌcaíd Provider Bnrollment Application at www.tmhp,com or
request a paper application form by contactlng TMHP directly at 1-800-925-9f26.
providers may also obtain the paper enrollment application by writing to the following address:

Texas Medlcaid & Healthcare Partnership
Provider Enrollment
PO Box 200795
Austin, TX78720-0795
I -800-925-9 126
Fax; (512) 514-4214

Providers may request prior authorÍzation for home health services by contacting:
Texas Medicaid & Healthcare Partnership
Home Health Services
PO Box 202977
Austin, TX78720-2977
I -800-925-8957
Fàx: (512) 514-4209

2.1,1 Change of Address orTelephone Number
A current physical and mailing address and telephone number must be on fìle for the agency or comPany
to receive-Remlttance & Status (R&S) reports, reimbursement checks, Medicaid provider procedures
manuals, the Tøxøs Medlcaid Bulletîn (bimonthly update to the Texøs Medìcøld Provlder Procedures
Manuql),and all other TMHP correspondence, Promptly send all address and telephone numb-er
.hong", io TMHP províder Enrollment at the address listed above under subsection 2.1, "Enrollment"
in this handbook.

2.1,2 Pendlng Agency Certificatlon
DMEH suppliers that submlt claims before the enrollme¡rt Process is complete or wlthout prior autho-
rizatlon for services Íssued by the TMHP Home Health Servlces Prior Authorization Department will
not be reimbursed, The eftþctive date of enrollment ls the date on which all Medicaid provider
enrollment forms have been received and approved by TMHP'
Upon the receipt of notice of Medlcaid enrollment, the supplter must contact the TMHP Home Health
Se'rvices prior Ãuthorization Department before rendering to a Medicaid client services
that require a
prior authorization number. Priòr authorization cannot be issued before MedicaÍd enrollment has been
completed, Regular prlor authorization procedures are followed at that time.
providers must not submit home health services claims for payment until they have received their
Medicaid certifìcation and a prior authorization number has been assigned.
Referto: Subsection2,l.l,"ClinicalLaboratoryImProvementAfnendments(CLIA)"inthe
Radlolog and Lab oratory servlces Handb ook (vol, 2, Proyider Høndb ooks),

2.2 Services, Benefits, Llmitations and Prlor Authorizatlon
Home health services include ursing (SN), home health aide (HHA), physical
therapy (pT), and occupatlon esi DME; and expendable medical supplies that are
proviãed to eligible Medicaid of resldence'

Notet T4Steps-eltgtble clients who qualify for medìcølly necessary seru-ices beyond the limits of this
Home-Heallh Services benefit møy rcceiye those services through CCP.

DM-IO
CFT ONLY - COPYRICHT 20I I AMBRICAN MEDICAL ASSOCIATÍON' ALL RICHTS RËSERVED'
 DURABLE MEDICÁL EQUIPMENT, MED]CAL SUPPLIES, AND NUTRITIONÄL PRODUCTS HANDBOOK

Referto: Subsection 5,l,l, "Overyiew" in the Children's ServicesHandbook(Vol,2,Prottlder
' Handbooks) for more information on clients birth through 20 years of age,
,,Home
section 3, Health Nursing aad Therapy seryices" in the Nursíng and Therøpy
Services Handbook (Vol, 2, Provider Handbooks) for more information on nursing and
theraPy services'

2.2.1 Home Health Servlces
The benefìt period for home health professional services is up to 60 days with a current plan of
care
(pOC). for å[ pU¡ and medical supplies with or without prior authorizatlon requirements, providers
must complete a Horne Health Services (T
Supptl.r P'hysician Order Form except âs o d
stable situations, the Home Health Service
Supplies Physician Order
phyii.i.n', sìgnature on t nd
supplies that are ordered
(Ptø¡)/tvte¿ical Supplies h
medical necessity determlnation' Because Medicat

Services Prior Authorizalion Department, Provide
HHSC
forms, delivery slips, and invoicãs for all supplíes provided to a client and must disclose them to
records and claims must be retained for a minimum of fìve years from
or its designee oniequest. These
the date oiservice (DOS) or until audit questions, appeals, hearings, investlgations, or court cases are

resolved, Use of these services ts subject to retrospective review'

2,2,1,1 Client EllglbllìtY
Home health clients do not have to be homebound to qualify for services.
must:
To quallff for home health services, the Medicaid client must be eligible on the DOS and
. Have a medical need for home health professional services, DME, or supplies that is documented in
the client's POC and considered a benefìt under home health services,

. Receive services that meet the cllent's existing medical needs and can be safely
provided in the
client's home.
. Receive prior authorization from TMHP for most home health professlonal services, DME, and
supplies,

Unless otherwise noted in this handbook, certain DME/supplies may be obtained
without prior autho-
ttr.tion although providers must retain a Home Health Services (Title XIX) Durable Medical
¡qr-ip..rt (Oifnj¡Ueaical Supplies Physician Order Form that has been reviewed, signed, and dated
by the treating physician for these clients'

Refer to: "Automated Inquiry system (AIS)" in "Preliminary Information" (vol, 1, Generøl
Informøtion).
Section 6: Claims Filing in Children's Services Handbook (Vol, 2, Provider HøndbookÐ
for
more information on clients who are 20 years of age and younger'

2,2,1,2 Prtor Authorlzatlon Requests fot cllents wlth Retroactlve Ellglbtltty
is before the date on
Retroactive eligibility occurs when the effective date of a client's Medicaid coverage
TMHP's eligtbilty fìle, which is called the "add date."
which the clieit's Medicaid eligibilty is added to

DM-¡I
CPT ONLY - COPYRICHT 20l I MúDlC/rL ASSOCI^l toN' RICI]TS RESERVI'D'
^MERIC^N ^LL
TEXAS M!,DICÀID PROVIDER PROCEDURES M,¿\NUAL: VOL' 2

For clients with retroactive eligibility, prior authorization requests must be submltted after the client's
add date and before a claim is submitted to TMHP'

Ior service sprovided to fee-for-service Medicaìd clients during the client's retroactive eligibility period
(i.e,, the peritd from the effective date to the add date), prior authorlzation must be obtained within 95
days of the client's add date and before a claim for those sewices is submitted to TMHP' For services
präuid.d on or after the client's add date, the provider must obtain prior authorization within 3 buslness
days of the date of service.

The provider is responsible for veriffìng eligibitity, The provider is strongly encouraged to access the
Autómated Inquiry System (AIS) or TexMedConnect to verify eligibility frequentlywhile providing
services to the client. if serviceo are discontinued before the client's add date, the provlder must still
obtain prior authorization within 95 days of the add date to be able to submlt claims.
Refer to: Section 4: Client Eligibility (Vol. 1, General Informatìon).

2.2.1,3 Prlor Authorlzatlon
prior authorization must be obtaÍned for some supplies and most DME from TMHP wlthin three
business days of the DOS, Although providers may supply some DME and_medical supplies to a client
without priår authorization, they muìt still retain a copy.of the Home Health Services (Title XIX)
Durable-Medical Equipment (DME)/Medical Supplies Physician Order Form that has Section B
completed, signed, ãnà dated by the cllent's attending physician' unless otherwise noted in this
handbook.
The following prior authorization requests can be submitted on the TMHP website at www,tmhp,com:
. External Insulin PumP
. Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medical Supplies Physician
Order Form
o Home Health Services POC
. Medicaid certilìcate of Medical Necessity for CPAP/BiPAP or Oxygen Therapy
. Medicaid Certifìcate of Necessity for Chest Phystotherapy Device Form-Initial Request
. Medicaid Certificate of Necessity for Chest Physiotherapy Device Form-Extended Request
. Statement for Initial Wound Therapy System In-Home Use

. Statement for Recertifìcation of Wound Therapy System In-Home Use
. Wheelchair/Scooter/Stroller Seating Assessment Forrn (CCP/Home Health Services)
(Attachments
will be sent separately due to size and detailed information)

Referto: Subsectiou5.5.l,"PriorAuthorizationRequestsThroughtheTMHPWebsite"ínSection5,
' "prlo.Authorizatlon" (Vol, 1,GeneralInformation) formoreinformation,including
mandatory documentation requirements.

If a client's primary coverage ls private insurance and Medicaid is secondary, prior authorization is
required foi tvte¿lcaid reim-'bursãment. If the primary coverage is Medìcare, Medicare approves the
,.r.u1.., and Medicaid Ís secondary, prior authorization is not required. TMHP will pay only the
required.
coinsurance or deductible. IfMedicare denied the service, then Medicaidprior authorization is
TMHp must receive a prior authorization request within 30 days of the date of Medlcare's fìnal dispo-
The Medicare Remittance Advice Notice (MRAN) containing Medicareb final disposition must
sition.
accompany the prior authorizatlon request, If the se rvice is a Medlcald-only service, prior authorization
ir r.quìrri rrithìn three business days of the DOS. The provider is responsÌble for determiningwhether
eligiúillty is effective by uslng AIS, iexMedConnect, or an electronlc eligibility inquiry through the
TMHP EDI gateway,

DM.I2
cpr oNLY . coPYßlcHT 201 I MsDlC^L AliSOClA',rlON, ALL RICHT S ltttslÌllvtlD.
^MEßlC,\N
 DURABLB MEDICAL IIQUIPMENT, MBDICAL SIIPPLIES, AND NUTRITIONÁL PRODUCTS Hr{NDBooK

The provider must contact the TMHP Home Health Services Prior Authorization DePartment within
threé business days of the DOS to obtain prior authorization for DME and medical supplíes.

If inadequate or incomplete information is provided or medical necessity is lacking, Úre provider wlll be
asked to'furnish any required or additional documentation so that a decision about the request
can be
made. Because the åocumentation must often be obtained from the client's physician, providers have
two weeks to submit the requested documentation. If the addttional documentation is received within
the two-week period, prior ãuthorization can be considered for the original date of contact, If
the
additional documentaìion is received more than two weeks after the request for the documentation,
prior autJrorization is not considered before the d nal documentation is received.
it i, th. DME supplier's responsibillty to contact the requested addltional
documentation, tï. physi.ìan must maintain docu necessity In the cllent's record.

TMHP Home Health Services toll-free number is l-800-925-8957,
Reþr to: Subsection 2,2,2.2,"Prior Authorization" in this handbook for DME prior authorization
informatton,
subsection 2,3,1, "Medicaid Relationship to Medicare" in this handbook.

Client eligibility for Medicaid is for one month at a time, Providers should verifr their client's
ellgibility
every month. Prlor authorization does not guarantee payment'

2.2.2 Du¡able Medical Equipment (DME) and Supplies
Texas Medicaid defìnes DME asl
a physician
Medicøl equipment or appliances that are manufactured to withstandrepeated use, orderedby
a dßabìIity, condition, or íllness'
¡oiitt ¡rihi ho*r, anà'required to coffeÇt or ømeliorqte clìent's

Since there ls no single authorify, such that confers the offlcial status of "DME" on
as a federal agency'
anyd.vi.. o, produc-t, HHSC reiains the right to make such determinations with regard toDME benefits
of îexas Medìcaid. DME benefìts of Texas tøedicaid must have either a well-establlshed history of
,fiìru.yor, in the case of novel or unlque equipment, valid, peer-reviewed evidence that the equipment
.o.r..i, or ameliorates a covered medical condition or functional disabtlity,
defìnition of DME, The majority of DME
a service cannot be provÌded for a client
es, these services may be covered through

To be reimbursed as a home health benefit:
. The client must be eligible for home health benefits'
. The criteria listed for the requested equipment or supply must be met.

. Partici-
The requested equipment or supply must be medically necessary and Federal Financial
pation (IFP) must be available,
. The client's health status would be compromised without the requested equipment
or supply'

. The requested equipment or supplies must be safe for use in the home,
. The client must be seen by a physician wíthin one year of the DOS'

The pro
pages)"
Paymen
include
of the provider and the client or primary caregiver.
in the client's record.

DM.I3
RESÉRVËD'
CPf ONLY . COPYRIGI{'t'20I ) AMB(fCAN MBDICAT ASSOCIATION, ALL f(ICHTS
TEXAS MEDICAID PROVIDER PROCEDURIIS MANUAL: VoL, 2

The sígned and dated DME Certifìcation and Receipt Forrn rnust be submitted to TMHP for claims and
appeals for DME that meet or exceed a billed amount of $2,500,00. The form must also be submitted
when multÍple items that meet or exceed a total billed amount of $2,500,00 are billed for the same DoS'
The form is required in addition to obtaínfng prior authorization, when applicable,
If the DME Cefification and Receipt Form is not submitted to TMHP, the claim payment or appeal will
be reviewed and will be eligible for recoupment, Incomplete forms will be returned to the provider for
correction and resubmission.
TMHP will contact clients that received DME that meets or exceeds a billed amount of $2,500,00 to
verifr that services were rendered. If the delivery of the equipment cannot be verifìed by the client, the
claim payment will be eligible for recoupment,
The provider must keep all Home Health Services (Title XIX) Durable Medical Equipment
(DME)/Medical Supplies PhysÍcian Order Forms and Addendum to Home Health Services (Title XIX)
DME/Medical Supplies Physician Order Forms on file, Provlders must retaln delivery slips or l¡voices
and the signed and dated DME Certiflcation and Receipt Form documenting the item and date of
delivery for all DME provided to a client and must disclose them to HHSC or its designee on request,
. The DME must be used for medical or therapeutic purposes, and supplied through an enrolled
DMEH provider in compliance with the client's POC.
. These records and claims must be retained for a minimum of fìve years from the DOS or until audit
questions, appeals, hearings, investigations, or court cases are resolved. Use ofthese services is
subject to retrosPective review,

Note: AII purchased equipment must be new upon delìvery to clíent, Used equipment may be
utilizedJor lease, but when purchesed, mustbe replaced with new equipment.
HHSC/TMHP reserves the right to request the Home Health Services (T'itle XIX) Durable Medical
Equipment (DME)/Medical Supplies Physician Order Form or Addendum to Home Health Services
(Title XIX) DME/Medical Supplies Physician Order Form at any time.

DME must meet the following requirements to qualify for reimbursement under Home Health Services;
. The client received the equipmeut as prescribed by the physician,

. The equlpment has been properly fitted to the client or meets the client's needs.
. The client, the parent or guardian of the client, or the primary caregiver of the client, has received
training and instruction regarding the equipment's proper use and maintenance,
DMEmust:
. or injury or to improve the functioning of a body part, as
Be medically necessary due to lllness
documenteà by the physician in the client's POC or the Home Health Services (Title XIX) Durable
Medical Equipment (DME)/Medical Supplies Physician Order Form.
. Be prior authorized by the TMHP Home Health Servlces Prior Authorization Department for rental
or purchase of most equipment, Some equipment does not require prior authorization, Príor autho'
rizãtion for equipment rental can be issued for up to six months based on diagnosis and medical
necessity, Ifan eitension is needed, requests can be made up to 60 days before the start ofthe new
prior authorization period with a new Home Health Services (Title XIX) Durable Medical
Equipment (DME)/Medical Supplies Physlcian Order Form.
. Meet the cltent's existing medlcal and treatment needs,
. Be considered safe for use in the home,

DM-I4
CPT ONLY - COPYRICHT 20l r A¡,tËRlC¡{N MBDICAL ALL fUGH'fS RÙSliRVlD'
^SSOCÍ,{TIoN,
 DUR.?ôTBLE MEDICAL EQUIPMENT, MEDICAL SI,JPPLIES, AND NUTRITIONAL PRODUCTS }IANDBOOK

. Be provided through an enrolled DMEH Provider or suPPlier.
Notet TilSteps-eligibte clients who quøIifufor medically necessary services beyond thelimits of thìs
home heølth beneft will receive those services through CCP,

DME that has been delivered to the client's home and then found to be inappropriate for the client's
condition will not be eligible for an upgrade wtthin the ftrst six months followlng purchase unless there
has been a signifìcant change in the client's condition, as documented bythe physician familiar with the
client. All adjustments and modiflcations within the fìrst six months after delivery are considered part
of the purchase price,

^AllDME purchased for a client becomes the Medicaid client's property uPon receipt of the ltem. This
properly includes equipment delivered whlch witl not be prior authorized or reimbursed in the
following instances:
o Equipment delivered to the client before the physician signature date on the Home Health ServÍces
(fitle XIX) Durable Medical Equipment (DME)/Medical Supplies Physlcian Order Form or
Addendum to Home Health Services (Tide XIX) DME/Medical Supplies Physician Order Form'
. Equipment delivered more than three business days before obtaining prior authorization from the
ffr¿flp Home Health Services Prior Authorization Department and meets the criteria for purchase,
Additional criteria;
. A determination as to whether the equipment will be rented, purchased, replaced, repaired, or
modifìed wilt be made by HHSC or its designee based on the client's needs, duration of use, and age
of the equipment.
. periodic rental payments are made only for the lesser of either the period of time the equipment is
medically necesiary, or when the total montily rental payments equal the reasonable purchase cost
for the equipment,
. purchase is justifìed when the estimated duration of need multiplied by the rental payments would
exceed the ieasonable purchase cost of the equipment or it is otherwise more practical to purchase
the equipment.
. If a DME/medical supply provider is unable to deliver a prior authorized piece of equipment or
supply, the provider shoulã a[ow the clientthe option of obtaining the equiPment or supPlies from
another provider,
Items or services are reimbursed at the lesser of;

The provider's billed charges

The published fee determined by HHSC

Manual pricing as determined by HHSC based on one of the following:
. The manufacturer's suggestcd retail price (MSRP) less l8 percent
. The provider's documented lnvoice cost
Ifan item is manually priced, providers must submit documentation of one of the following for consid-
eratlon ofpurchase or rental with the appropriate procedure codes:
. The MSRP or average wholesale prÍce (AWP), whichever is applicable
. The provider's documented invoice cost

2,2,2,1 Modlflcatlons, Adtustments, and Repøirs
Modificattons are the replacement of components because of changes in the client's condition, not
replacement because the component is no longer functioning as designed, All modiflcations and adjust-
mãnts within the ftrst six months after dellvery are consldered part of the purchase price,

DM.I5
cP'I' oNLY - COPYnlClll'!O¡ ¡ MfiDlC¿tL ASSOCI^TIoN RrGl t'fS ÂIJSÊRVED'
^MtiRICÂN ^LL
TEXAS MEDICAID PROVIDER PROCEDURIS MANUALT VOL' 2

Modifìcations to custom equlpment may be prlor authorized should a change occur in the client's needs,
capabiJities, or physical and mental status which cannot be anticipated.

Documentation must include the following:
. A,ll projected changes in the client's mobllity needs
. The date of purchase, and serial number of the current equipment
. The cost of purchasing new equiPment versus modifying the current equipment
All modifications within the first six months after delivery are considered part of the purchase price'

er deliverywill
considered part
uthorized as

Repairs to client-owned eguipment maybe prior authorlzed as needed wlth documentatlon of medical
neiessity. Technician fees arJ considered part of equire the replacement
of components that are no longer functional, Pro taining documentation
in the client's medical record.specifying the repairs essity'

A DME repair will be considered based on the age of the item and cost to repair it.
nt or medical information from the attending
or eguipment continues to serve a specifìc medlcal
evendor or DME provider of the repairs, Rental
edical equipment for the period of tlme it will take
ipment,

Repairs will not be prior authorized in situations where the equþment has been abused or neglected by
thá client, client's fãmily, or caregiver. Routine maintenance of rental equipment is the provider's
responsibility, For clients requirtñg wheelchair repairs onl¡ the date last seen by physician does not need
to be fìlled in on the Home Health Services (Title XIX) Durable Medical Equipment
(DME)/Medical
Supplies Physician Order Form,

2.2.2,1,1 Accessories
Equipment accessories including, but not llmited to, pressure suPPort cushions, may be prior authorized
with documentation of medical necessity,
2,2,2,2 Prlor Authorlzatlon
prior authorizatlon is required for most DME and supplles provided through Home Health Services'
These services include aciessories, modifìcations, adjustments, and repairs for the equipment,
providers must submit a completed Home Health Services (Title XIX) Durable Medical Eguipment
(DME)/Medical Supplies Physictan Order Form to the TMHP Home Health Servlces Prior Authori-
zation Department,
Unless otherwise noted in this handbook, a completed Home Health Services
(Title XIX) Durable
Medical an Order Form prescribíng the DME or supplies
must be esentative of the DME/Medical Supply provider
familiar orization for all DME equipment and supplies' All

Form must lnclude the procedure codes and nume

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The completed, signed, and dated form
physician in the client's medical record.
Medical Equipment (DME)/Medical Su
must be maintained by the prescribing physician,
To complete the prior authorization process by paper, the provider ry9! l* or mail the completed
Home Health Services (Title )CX) Durable Medical Equipment (DME)/Medical Supplies Physícian
Order Form to the Home Health Services Prior Authorization Department and retain a copy of the
signed and dated form in the client's medical record at the provider's place of business.

To complete the prior tcall¡ the provider must submit the prior authori-
zatíon råqulre**tu ttr methods and retain a copy of thesigned and dated
Home Health Services Equtpment (DME)/Medical Supplies Physician
order Form in the client's medical record at the provider's place of business'
Retrospective review may be performed to ensure that the documentation included
in the client's
medical record supports the medical necessity of the requested seryices.
The date last seen by the physicìan must be within the Past l2 months-unless a physician waiver
is

oUt.in.¿, The physician's siþarure on the Home lealth Services (Title XIX) Durable Medical
Equipment (pivlÉ)lfr¡e¿i.at Supplies Physician Order Form is onlyvalld for 90 days before the
initiation
ofì.*i.rr, The requestíng p.ovid.t may be asked for additional information to clartfy or complete the
request.
providers must obtain prior authorization withln three buslness days of provtding the service by calling
TMHp Home Health Segces Prior Authorization Department or faxing the llome Health Servrces
(Tirle xIX) Durable Medical Equipment (DME)/Medical supplies Physician order Form,
requesting prior
To facilitate a determiuation of medical necessity and avold unnecessary denials when
complete information supporting the medical
authorízation, the physician must provide correct and
necessity of the equipment or supplies requested, including:

. Accurate diagnostic information pertaining to the underlying dtagnosisi condition as well
as any

other medica'Í diagnoses/conditions, to include the client's overall health status.

. Diagnosis/condition causing the impairment resulting in a need for the equipment or supplies
requested,
purchased DME is anticipated to last a minimum of 5 years, unless otherwise noted, and may be
considered for replacemeit when the time has passed or the equipment is no
longer functional or
ofthe or fìre report, when appropriate, and the measures to be taken to Prevent
i.p.it"Ufr. A copy police
reoccurrence must be submitted.
prior authorization for equipment replacement is constdered within fìve years of equipment purchase
when one of the following occurs:
. There has been a signlficant change in the client's condrtion such that the current
equipment no
longer meets the client's needs.
to
. The equipment is no longer functional and either cannot be repalred or it is not cost-effective
repair,
has occurred, The
Replacement of equipment is also considered when loss or irreparable damage
foliowing must be submitted with the prior authorization request:
. A copy of the police or fire report, when appropriate
. A statement about the ¡neasures to be taken in order to Prevent reoccurrence

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TEXAS MEDICAID PROVIDDR PROCEDURES MANUAL: VOL' 2

Payment may be prior authoriz€d for repair of pu rental equiPment
1ln'cludfng.ep.irs) is the supplier's respõnsibility' MHP Home Health
Services Prior Authorizationbepartmènt is l-800-9 must include the cost
estimate, reasons for repairs, age of equipment, and serlal number'

2.2.3 MedicalSuPPlies
Medical supplíes are benefìts of the Home Health Servlces Program lf they meet the
following criteria:

. unless e ply provider
Health
and a ph
Order Form
Services
g prior authorization for the DME or supplics,
óriginal, and handwritten. Computerized or
current signature and date Ís valld for no more
ior authorization or the initiation of service, The
rable Medical Equipment (DME)/Medical Supplies
ure codes and numerical quantities for the services
requested,
. supplies to the client and
The provider must contact TMHP within 3 business days of providing the
obtain prior authorization, if required,
(Title XIX)
. The requesting provider and orderlng physician must keep all Home.Health Services
Durabrå ruediãar Equipment (DME)/rr¡edical su
;,iåçË:i.,ï'å:ff.'i"ü,t*iï::$ü'"
(Title XIX) Durable
d Flome Health Services
hyslcian Order Form in their records;
that document the date of
. ProvÍders must retain indivídual delivery slips or invoices for each Dos
must disclose them to ÉIHSC or its designee upon
ã.ti*,..y øt all supplies provided to a cliånt ãnd
,.qrr..i. Documentation of delivery must include one of the followingr
. Delivery slip or invoice signed and dated by client or caregiver'
printed from
. A dated carrier tracking document with shipping date and dellvery date must
be
and delivered. The dated
the carrier's website as"confìrmation that ttre supplies were shipped
carrier trackÍng document must be attached to the delivery slíp or lnvoice.

. The datecl delivery slip or invoice must include the cli address to which supplies

were delivered, *¿ un itemlzed list of goods tbat inclu sand numerical quantities
of the supplies deliyered to the client,ihis document prices, shipping weights'
shipping charges, or other descrlptions,
All claims submitted for medical suppltes mtut include the same q-uantities or units that
are
, (Title XIX) Durable
documented on the delÍvery slip or ìnvoice and on the Home Health Services

one dated delivery slip or invoice for each claim submitted for each client,
All claims submitted for
date the delivery slip or invoice and the same tlmeframe
medical supplies musi reflect the same as

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 DURABLD MEDICAL BQUIPMENT, MßDIC.AL SUPPLIES, AND NUTRITIONAL PRODUCTS HANDBOOK

covered by the Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medical
Supplies Physician Order Form. The DME Certification and Receipt Form is still required for all
equipment delivered'
Note: These records ønd cløims must be retainedfor a minìmum offive yearsfrom the DOS or until
audìt questions, appeal¡ hearings, ìnvestigations, or court cqses are resolved, Use of these
servlces is subject to retrospective rev¡ew.

. The requesting proyider or ordering physician must document medical supplies as medically
necessary in the client's POC or on a completed Home Health Services (Title XIX) Durable MedÍcal
Equipment (DME)/Medical Supplies Physician Order Form and Addendum to Home Health
Services (Title XIX) DME/Medical Supplies Physician Order Form,

HHSC/TMHP reseryes the right to request the signed and dated Home Health Services (Title XIX)
Durable Medical Equipment (DME)/Medlcal Suppltes Physician Order Form or Addendum to Home
Health Services (Title XIX) DM[/Medical Supplies Physician Order Form at anytime,
Note: Client eligibilìty can change monthly, Providers are responsiblefor verifuíng eligibility beþre
Providlng suPPlies.

The DOS is the date on which supplies are delivered to the client or shipped by a carrier to the client as
eyidenced by the dated tracking document attached to the invoice for that date. The provider must
maintain the signed and dated records supporting documentation that an item was not billed before
delivery. These records are subject to retrosPective review'
Note: TilSteps-eligible clients who qualify for medicøIly necessary serrices beyond the limits of this
home health benefit wíll receive those servìces through CCP,
Reþr to: Form DM,3, "Home Health Services (Title XIX) DME/Medical Supplies Physician Order
Form Instructions (2 pages)" ln this handbook,
Form DM.4, "Home Health Services (Title XIX) Durable Medical Equipment
(DME)/Medical Supplies Physician Order Form" in this handbook,
Subsection 2.4, "Durable Medical Equipment (DME) Supplier (CCP)' in Children's
Services Handbook (Vol. 2, Provìder Høndbooks) for speclfìc informatlon about certain
DME and medical .supplies.
Subsection 2.2.L.L, "Client Eltgibility" in this handbook,

2,2,3.1 Supply Procedure Codes
When submitting supplies on the CMS-1500 claim form, itemize the supplles, including quantities, and
also provide the Healthcare Common Procedure Coding System (HCPCS) national procedure codes.

Referto: Subsection 6.3.3, "Procedure Coding" in Section 6, "Claims Fillng" (Vol, 1, Generallnfor-
mation) for more information about HCPCS procedure codes.

2,2,3.2 Prìor Authorizatìon
TMHP must prior authorize most medical supplies, They must be used for medical or therapeutic
purposes, and supplted through an enrolled DMEH provlder ln compliance with the client's POC,

Some medical supplies may be obtained without prlor authorlzation; however, the provider must retain
a copy of the completed POC or Home Health Services (Title XIX) Durable Medical Equipment
(ptutÈ)¡tr¡"¿i.al Supplies Physiclan Order Form in the client's fìle, Unless otherwise noted in this
hanclbook, a completed Home Health Services (Title XIX) Durable Medical Equipment (DME)/Medícal
Supplies Physician Order Form for medical supplie s not requirlng prior authorizatlon may be valid for
a maximum of six months, unless the physician indicates the duration of need is less, If the physician

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TEXAS MEDICAID PROVIDER PROCEDURES MANUALT VOL.2

indicates the duration of need is less than six months, then a new Home Health Services
(Title XIX)
Durable Medical Equipment (DME)/Medical Supplies Physicían Order Form is required at the end of
the determined duration of need,
For a list of DME/medical supplies that do not require prior authorization, providers can refer to-
Subsection Z.2.25,"Procedurã-Codes That Do Not Require Prior Authorization" in this handbook,

Clients with ongoing needs may receive up to six months of prlor authorlzatlons for some expendable
medical suppliei unáer Home Health Services when requested on a Home Health Services
(Title XIX)
Durable Ueãic4 Equlpment (DME)/Medtcal Supplies Physician Order Form. Providers may dellver
medical supplies as oráered on a Home Health Services (Title XIX) Durable Medical Eguipment
(DMg)/ÀaËdical Supplles Physlclan Order Form for up to six months from the date of the physician's
iignature, In these initun.er, ã r.view of the supplies requested by the physician familiar with the cllent's
.Jrditior,, and a new Home Health Services (fitle XIX) Durable Medical Equipment (DME)/Medical
Supplies physician Order Form is required for each new priot authorization request' Requests for prior
auihorization can be made up to 60 áays before the start ofthe new prior authorization period' Profes-
sional Home Health Servicesþrior authbrization re ¡uests require a review by the physician familiar
with
the client's conclition and a physician signature every 60 days when requested on a POC,
Note: These records ond claims must be retainedfor a minimum offive years from the DOS or until
øudìt questions, øppeals, hearings, lntestigations, or court coses are resolved. Use of these
services is subject to retrospective revieu/,

2,2.3.3 CancellÍng a Prlor Authorlzotton
The client has the right to choose his DME/medical supplyprovider and change providers' If the client

effectlve date, Prior authorization for the new pr
before the date TMHP receives the change of provi
xIX) Durable Medical Equipment (DME)/Medical supplies Physician order Form'
2.2.4 Augmentat¡ve Communicatlon Device ÍACD) System
An ACD system, also known as an augmentative and alternative communication (AAC) device system,
allows a client with an expressive speãch language disorder to electronically represent vocabulary and
express thoughts or iclearin orcler to meet the client's functional speech needs,

Digitized speech devices and synthesized speech devices are benefìts of Texas Medicaid Title XIX Home
Health Services,
A digitized speech device, sometimes referred to as a "whole message" speech output device, uses words
o, pfirur., that have been recorded by someone other than the ACD system user for playback upon
command by the ACD system user,
provlders must use procedure codes E2500,I;2502,F2504,and82506 when billing for a dìgitized speech
device.
technology that translate
guistic rules, Users of sYn
independentlY create me
require the user to make
screen, or other dtsplay containing letters,

Providers must use procedure code E2508 when billing for a synthesized speech devlce'

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TIXAS MEDICAID PROVIDER PROCEDURES MÂNUAL: VOL,2

For more frequent IV tubing or add-on changes, supporting documentation must have evidence that
includes, but is not limited to, the following:
. Phlebttis
. IV catheter-related infection
. The administered infusion requires more freqnent tubing changes

2.2.14 Mob¡l¡tyA¡ds
Mobility aids and related supplies, including, but not limited to canes, crutches' walkers, wheelchairs,
a¡d ramp, are a benefit throt gt fiUe XIX l{ome Flealth Servtces to assist clients to move about in their
environment,
Note¡ A mobility aidfor a client who is birth through 20 yeørs of age is medícally necessary when it
is requireid to correct or amelíorøte a dßability or physicøl illness ot condítìon'

2.2,14,1 Canes, Crutches, and Walkers
Canes, crutches, and walkers may be prior authorized as a home health service with documentation
supporting medical necessify. This documentation must be provicled by a physician familiar with the
cliãnt and must include informatíon on the client's impaired mobility'

2,2,14,2 Wheelchalrs
A wheelchair ls a non-customized chair mounted on four wheels that incorporates a non-adjustable
frame, a sling or solld back and seat, and arm rests, Optional items included tn this definition include,
but are not limlted, to the followingr
, Handles at the back
. Foot rest
. Seat belt or safety restraint

A wheelchair lncludes all of the following:
. Standard (manual) wheelchairs
. Standard hemi (manual) wheelchairs
. Standard reclining (manual) wheelchairs
. Lightweight (manual)wheelchairs
. High strength lightweight (manual) wheelchairs

2,2.1 4,2.1 Prlor Authorizqtion
A wheelchair may be prior authorieed for short-term rental or for purchase wlth documentation
supporting mediial nècessity and an assessment of the accessíbility of the client's residence to ensure
thåithe wheelchair is usable in the home (i.e., doors and halls wtde enough, no obstructions). The wheel-
chair must be able to accommodate a2}percent change in the client's height or weight,

4.2,2 Documentotion Requlrements
2,2.1

Documentation by a physician familiar with the cltent must include information on the client's impaired
mobiltty and physical rèquirements, [n addition, the following information must be submitted with
documentation of medical necessity:
. Why the client is unable to ambulate a minimum of l0 feet due to their condition (including, but
not iimited to, AIDS, sickle cell anemia, fractures, a chronic diagnosis, or chemotherapy)
. If the client is able to ambulate further than I0 feet, wby a wheelchair is required to meet the client's
needs

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 DUAáBr.E MEDICAL EQUIPMENT, MEDICAL SUPPLIBS, AND NUTRITIONAL PRODUCTS II NDBOOK

2,2,1 4,3 Manual Wheelchalrs-Standord, Stondaú Heml, and Standard Recllnlng
A standard manual wheelchair is defìned as a manual wheelchair thatl
. Weighs more than 36 pounds,
. Does not have features to appropriately accept speclalized seatlng or positioning,
. Has a weight capacity of 250 pounds or less.
. Has a seat depth ofbetween l5 and 19 inches,

. Has a seat width of between l5 and 19 inches,
. Has a seat hetght of 19 ilrches or greater.
. Is fixed height only, fìxed, swing away' or detachable armrest'

. Is fixed, swing awa¡ or detachable footrest,
A standard hemi (low seat) wheelchair is deflned as a manual wheelchair that:

. Has the same features as a standard manual wheelchair,

. Has a seat to floor height of less than 19 inches.

A standard reclining wheelchair is defìned as a manual wheelchair that:
. Has the same features as a standard or standard hemi manual wheelchair,
. Has the ability to allow the back of the wheelchair to move independently of the seat to provide a
change in orientation by opening the seat-to-back angle and, in combination with leg rests,
open the
knee angle,

2,2.1 4.3,1 Prior Authorizotion
A standard manual wheelchair may be considered for prior authorization for short-term rental or
purchase when all the following criteria are met:
. The client has impaired mobility and is unable to ambulate rnore than l0 feet.
. The clíent does not require speciaþ seating comPonents'

. The client is not expected to need powered mobility within the next S-year period,

A standard heml wheelchaÌr maybe considered for prior authorization for short-te rm rental or
purchase
when the client meets criteria for a standard manual wheelchair and the followlng criteria is met:
. The client requires alowseat-to-floor height'
. The client must use their feet to propel the wheelchair.
or
A standard reclining wheelchair may be considered for prior authorization for short-term rental
purchase when the ãlient meets criteria for a standard manual wheelchair and one or more of the
following critería are met:
. The cllent develops fatigue with longer periods of sitting upright'
. The client is at increased risk of pressure sores with prolonged upright position.
. The client requires assistance with respirations in a reclining positlon'
. The client needs to perform mobility related activities of daily living
(MRADLs) in a reclinlng
position,
. The client needs to improve yenous return from lower extremity in a reclining posítion,

. The client has severe sPasticity'

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. The client has excess extensor tone ofthe trunk muscles'

. The client has quadrlPlegia,
. The client has a 0xed hlP angle,
. The client must rest in a reclining position two or more times per day'
. The client has the inability or has great dlffÌculty transferring from wheelchair to bed,

, The client has trunk or lower extremity câsts or braces that require the reclining feature
for
positioning.

2,2,1 4,4 Monual wheetchairs-Lightwetght and Hìgh-stength Lightwelght
A lightweíght manual wheelchalr is defìned as a manual wheelchair that:
. Has the same features as a standard or hemi manual wheelchair'
. Weighs 34lo 36 Pounds.
. Has available arm styles that are height adjustable.

A high-strength lightweight wheelchair is defìned as a manual wheelchair that:
. Has the same featu¡es as a lighrweight manual wheelchair'
. Weighs 30 to 34 Pounds,
. Has a lifetime warranty on side frames and cross braces'

2.2.1 4,4.1 Prlor Authorization
or purchase when
A lightweight manual wheelchair may be considered for prior authorization for rental
all the following criterla are met:

. The client is unable to propel a standard manual wheelchair at home.

. The client is capable of independently propelling a lighfweight wheelchair to meet their MRADLs
at home.

A high-strength lightweight wheelchair may be considere d for prior authorization
for rental or purchase
miets aliof the criteria forã üghtweight manual wheelchair and meets one or more of
whei the cliJnt
the following criteria:
. The high-strength lightweight wheelchair will allow the client to self-propel while
engaging in_
p"rfðrmeá activíttes that cannot otherwlse be completed
frequeãtly in a standard or lightweight
wheelchair,
. The client requires frame dimensions (seat width, dePth,.or height) that cannot be
accommodated
in a sturdardlhghtweight, or hemi wheelchair and thi wheelchair is used at least 2 hours a day,

2.2,14.5 Monual Wheelchalrs-Heavy'Duty and Extra Heavy Duty'
A heavy duty wheelchair is deffned as a manual wheelchair that:
. Meets the standard manual wheelchalr defìnition'
. Has a weight capaclty greater than 250 pounds,

An extra heavy drrty wheelchair ís defìned as a manual wheelchair that:

. Meets the standard manual wheelchair detnition'
. IJas a weight capacity greater than 300 pounds'

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DURABI,E MEDICAL BQUIPMENT, MEDICAL SUPPLIES, AND NUTRITIONAL PRODUCTS

2,2,1 4.5,1 Prior Author¡zatlon
purchase
A heavy-duty wheelchair maybe considered for prior authorízation for short-term rental or
when the client has severe spasticity or all the following criteria are meti

. The client meets criteria for a standard manual wheelchair'

. The client weighs between 250 and 300 pounds,
or
An extra heavy duty wheelchair may be considered for prior authorization for short-term rental
purchase when all the following criteria are met:
. The client meets criteria for a standard manual wheelchair'
. The client weighs more than 300 pounds.

2,2, 1 4,6 Wheeled îllobllltY SYstems
power or
A wheele¿ mobility system is a manual or power wheelchair, or sçooter that is a customized
manual mobility device, or a feature or component of the mobility device, includtng but not limited to,
the followingr
. Seated positioning comPonents
. Powered or manual seating options
. Specíalfl drMng controls for powered chairs
. Adjustable frame
. Other complex or specialized components
A wheeled mobility system includes all of the following:
. Tilt-in-space (manual) wheelchairs
o Pediatric size (manual) wheelchairs and strollers
. Custom ultra lightweight (manual) wheelchairs
. All power wheelchairs
. All scooters
2.2.1 4.6.1 Definitions ond Responsib¡litles
The following defìnitions and responsibilities apPly to the provision of wheeled
mobility systems:

. Major Modifìcation - The addition of, or modification to a custom feature or component of a
wháeled mobility system, including, by not limited to, the followíng:
. Seated Positioning comPonents

. Powered or manual seating options

. Speciaþ driving controls
. Adjustable frame
. Other complex or speciallzed comPonents
. MMDL - An activity of daily livíng requiring the use of mobility aids (i,e, toileting, feeding,
dressing, grooming, and bathing)'
. Occupatlonal Therapist - A person who ís currently licensed by the Executive Council
of Physical
Therápy & Occupational Thirapy Examiners to practice occupational therapy,

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. phystcal Therapist - A person who is currently licensed by the Executive Council of Physical
Therapy & Ocáupational Therapy Examiners to practlce physical therapy. An occupational or
physiä therapisi is responsible for completing the seating assessment of a client requlled for
obtaining a wheeled mobÍlity system,
. eualifìed Rehabilitation Professional (QRP) - A QRP is a person who meets
one or more of the
following criteria:
. Holds a certiôcation as an Assistive Technology Professional (ATP) or a Rehabilitation
Engineering Technologist (RET) issued b¡ and in good standing with, the Rehabilitation
Engineerin[ and Assistive Technology Society of North America (RESNA);
. Holds a certlflcation as a Seating and Mobilíty Specialist (SMS) issued by, and in good standing
with, RESNA; and/or
. Holds a certification as a CertifÌed Rehabilitation Technology Supplier (CRTS) issued b¡ and ín
good standing with, the National Registry of Rehabilitation Technology Suppliers (NRRTS).

. The QRP is resPonsible for:
. Being present at and involved ín the seating assessment of the client for the rental or
purchãse of a wheeled mobility systetn.
. Being present at the time of delivery of the wheeled mobility system.to direct the fitting of
tttr r!s'te* to ensure that the system functions correctly relative to the client.
2.2. 1 4.6,2 Prior Authorization
A wheeled mobility system may be prior authorized for short-term rental or for purchase with
documentation supporting medicafnecessity and an assessment of the accessibiliry of the client's
residence to ensurã that the wheelchair is usable in the home (i,e,, doors and halls wide enough, no
obstructions). The wheelchair must be able to accornmodate a 20 Percent change in the client's height or
weight,

2.2,1 4,6.3 Documentqtion Requlrements
f)ocumentation by a physicia¡r familiar with the client must include information on the client's impaired
mobility and physicai requirements. In addition, the following information must be submitted with
documentation of medical necessity:
. Why the client is unable to ambulate a minimum of l0 feet due to their condition (including, but
not iimited to, AIDS, sìckle cell anemla, fractures, a chronic diagnosis, or chemotherapy), or
. If the client is able to ambulate further than l0 feet, why a wheelchair is required to meet the client's
needs,

. completed Wheelchair/Scooter/Stroller Seating Assessment Form with seating measurements
,4.
that includes documentation supporting medical nccessity
. A¡ itemized component list for custom manual or power wheeled mobillty systems.

When medically necessary, prior aUthorizatlon may also be considered for the rental or purchase of an
alternative wheelchalr on a case-by-case basis, as follows¡
. A rnanual wheelchair will be considered for a client who owns or is requesting a Power wheeled
mobility system with no custom features,
. A manual wheelchair or a manual whçeled mobility system will be considered for a client who owns
or is requesting a power wheeled mobility system with custom features,

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 DURADLE MEDICAL EQUIPMENT, MBDICÀL SUPPL¡ES, AND NUTNITIONAL PRODUCTS
HANDBOOK

2,2,t 4,7 litlanual Wheeled Mobtltty System ' fllt'ln'Space
the
A tilt-in-space manual wheeled mobility system is deffned as a manual wheelchair that meets
following requirements:
. Has the ability to tilt the frarne of the whe elchair greater than or equal to 45 degrees
from horizontal
while maintainÌng a constant back to seat angle to provide a changeof orientation and redistribute
(such as the trunk and
pressure from onó area (such as the buttocks and the thigh$ to another area
the head)
. Adult size has a weight capacity of at least 250 pounds
. Pediatric size has a seat width or depth ofless than 15 inches
2,2,1 4,7 .1 Prior Authorization
rental
A tilt-in-space wheeled mobilfty system may be considered for prlor authorization for short-term
or purchase when all the followìng criteria are met:
. The client meets criterla for a standard manual wheelchair'
. The client has a conditlon that meets criteria for a tilt-in-space feature, including but
not limited to:

. Severe spasticitY

. Hemodynamic Problems
. Quadriplegia
. Excess extensor tone

. Range of motion limitations prohibit a reclining system, such as hip flexors, hamstrings, or even
heterotoPic ossifìcation
has an inability
. The need to rest in a recumbent position two or more times per day and the client
to transfer between bed and wheelchair without assistance

. Documented weak upper extremiry strength or a disease that will lead to weak upper extremlties

. At risk for skin break down because ofinability to reposition body in a chair to relieve pressure
areas

2,2,14,8 Manuol Wheeled Moblllty System' Pedldtrlc Slze
A pediatric sized wheeledmobility system is defìned as a manual standard/custom wheelchair (including
thåse optimally confìgured for propulsion or custom seatlng) that has a seat
width or depth of less than
l5 lnches.
2,2,1 4,g Monual Wheeled MobilttySystem -Custom (lncludes Custom Ultrø-Llghtwelght)
meets criterla for a
Custom manual wheeled mobility systems may be considered for a client who
seating, and cannot safely utilize a stanclard
manualwheelchair, has a conditiån ihat requires specialized
manual wheelchaÍr,
wheelchair for
A custom ultra lightweight wheeled mobility system is deflned as an optimally configured
in standard, lightweight, or high-strength light-
iiã.pria*r proldsioi which cannot be achleved a

weight wheelchair that:

r Meêts the high-strength lightweight deflnition and weighs less than 30 pounds,
. seating or positioning:
Has one or more of the following features to approprtately accept specialized
. Adjustable seat-to-back angle
. Adjustable seat dePth
. Independently adjustable front and rear seat-to-floor dimensions

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TEXAS MEDICAID PROVIDER PROCEDURES MANUAL: VOL' 2

. Adjustable caster stem hardware
. Adjustable rear axle
. Adjustable wheel camber
. Adjustable center of gravitY
. Has a lifetime warr'¿nty on side frames and cross braces

2,2.1 4.9. I Prior Authorizat¡on
for
A custom ultra-lightweight wheeled mobtlity system may be co¡sidered for prior authorization
purchasãwhen-the client meets all ihe criteria for a llghtweight manual wheelchair and one or
rental or
more of the following criteria:
, The client is able to self-propel, will have independent mobility with the use of an optimally
configured chair, and meets all of the following criteria:
. The client uses the wheelchair for a signifìcant portion of their day to complete MRADLS.

. The client uses the wheelchair in the cornmunity to complete MRADLs,
. Powered mobilily is not anticipated within the next 5-year period'

. The client ts able to self-propel, will have independeut mobilify with the use of an optimally
on
co¡rfìgured chair, has a medical condition that cannot be accommodated by the seating available
a stan-dard, lighrweight, or high-strength lightweight wheelchair 1n! 9ne or more of the following
features needed by the client to ensure optimal indepe'dence with MRADL':
. Adjustable seat to back angle,
. Adjustable seat depth.
. Independentþ adjustable front and rear seat-to'floor dimensions'
. Adjustable caster stem hardware,
. Adjustable rear axle (adjustable center ofgravity),
. Powered mobilify is not anticipated within the next S-year period'

. The client meets all of the following criteria:
. The client is unable to self-propel.
. The clie¡rt has a documented condition that requlres custom seating, including, but not
limited
toi
. Poor trunk control.
. Contractures ofelbowor shoulders'
. Muscle spasticitY,
. Tone imbalance through shoulders or back'
. Kyphosis or Lordosis.
. Lack of flexlbiltty in pelvis or spine.
The client requires custom seatlng that cannot be accommodated on a standard' light-
.
weight, or hemi-wheelchair.
prior authorization for labor to create a custom motded seating system is limited to a maximum of 15
hours,

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 DURABLB MEDICAL EQU]PMENT, MEDICAL SUPPI,IES, AND NUTRITIONAL PRODUCTS TIANDBOOK

2,2,1 4, I 0 Seoting Assessment for Manuol and Power Custom Wheelcholrs
A seating assessment is required for:
. The rental or purchase of any device meeting the definition of a wheeled mobility system as deffned
under subsection2,2,14.6, "Wheeled Mobility Systems" in this handbook,
. The rental or purchase of any device meeting the defìnition of a wheeled mobility system or a wteel-
chair as defìnèd under subse ction2.2.L4.2,"Wheelchairs" or subsection 2,2.l4,6, "Wheeled Mobility
Systems" in this handbook for a client with a congenital or neurological condition, myopathy, or
skeletal deformiry which requires the use of a wheelchair or wheeled mobility system.

A seating assessment with measurements, including speciffcations for exact mobilify/seating equipment
and all necessary accessories, must be completed by a physician, licensed occupational therapist, or
licensed physical therapist.

A QRP directly employed or contracted by the DME provider must be present at and participate in all
seating assessments, including those provided by a physician.

Upon completion of the seating assessment, the QRP must attest to his or her participation in the
uri"ruorniby siguing the Wheelchair/Scooter/Stroller Seattng Assessment Form. This form must be
submitted with all requests for wheeled mobility systems,
When the practitioner completing the seating assessment is an occupational or physical therapist, the
occupational or physical therapist may perform the seating assessment as the therapist, or as the QRP,
but maynot perfãrm in both roles at the same time, If the occupational or physical therapist is attending
the seating aisessment as the QRP, the occupational or physical therapist must meet the credentialing
requirements ancl be enrolJed ln Texas Medicaid as a QRP.
If the practitioner completing the seating assessment is a physícian, the seating assessment is considered
part of the evaluation and management seryice providecl'
Note: If ø client who is 20 yeørs oJ age reqt+ires seating supPort and meets the criteria
birth throug|r
jor stroller may be considered through CCP, or ø wheelchøir may be
ø seøting system, ø
considered through Texas Medicøid Title XIX Home Health Services.

2.2. I 4,1 0.1 Prlor Authorìzation
A seati¡g assessment performed by an occupational theraplst, physical therapist, or a physlcian,wíth the
participition of a QRÞ, does not require prior authorization, A seating assessment performed by a
physician is considered part of the physician evaluation and management service.
The QRP's participation in the seating assessment requires authorization before the service can be
relmbursed. Authorization must be requested at the same time and on the same prior authorizalion
request form as the prior authorization request for the QRP fìtting and the wheeled mobiliry system or
major modifìcation to the wheeled mobility system,
prior authorization requests for the QRP's participation in the seating assessment will be returned to the
provider if the seating assessment is requested separately from the prior authorization for the QRP
htting and the wheeled mobility system or major modifÌcation to the wheeled mobility system.
The QRP participating in the seating assessment must be directly employed by or contracted with the
DME providet tèqu.rting the wheeled mobilíty system or major modifìcatiou to a wheeled mobility
system,

An authorization for the QRP's participation in the seating assessment for a wheeled mobility system or
major modiûcation to a wheeled mobility system may be issued to the QRP in 1S-minute increments,
for a time period of up to one hour (4 units).
If the seating assessment is completecl by a physician, reimbursement is considered part of the physician
office visit and will not be relmbursed separately.

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TEX S MBDICAID PROVIDERPROCIDURES M^NUAL: VoL. 2

The practitioner (occupational therapist or physical therapist) comPleting the assessment must submit
procedure code 97001 or 97003 with modifier Ul, in order to bill for the seating assessment,
Services for the QRP's participation in the seating assessment must be submitted for reimbursement by
the DME provider bi[íng for the wheeled mobility system using procedure code97542 wíth modifìer
Ul. The OUn proøder irust include the QRP specialty as the Performing provider on the claim for all
components of the wheeled mobility system, including the QRP's particiPation in the seating
assessment,

Seating assessment services performed by a QRP is limited to four units (one hour),

2.2.1 4,1 0,2 Documentation Requirements
The seating assessment must:
. Explain how the client or family wtll be trained in the use of the equipment.
. Anticipate changes Ín the client's needs and include anticipated modifications or accessory:teeds,
us welf as the growth potential of the wheelchair. A wheelchair must haYe growth potential that will
accommodate a2Q percentchange in the client's height andior weight'
. Include signifìcant medical informatlon pertinent to the client's mobility and how the requested
equipmeni will accolnmodate these needs, including intellectual, postural, physical, sensory (visual
and auditory), and PhYslcal status'
. Address trunk and head control, balance, arm and hand functioll, existence and severity of ortho-
pedic deformities, as well as any recent changes in the client's physical and/or functional status, and
ãny expected or potential surgeries that wíll improve or further limit mobilify'
. Include information on the client's current mobllity/seating equipment, how long the clíent has
been in the current equipment and why it no longer meets the client's needs,
. Include the client's height, weight, and a description of where the equipment is to be used,
. Include seating measurements.
. Include the accessibility ofclient's residence.
. I¡clude rnanufacturer's information, includlng the description of the specific base, any attached
seating system components, and any attached accessories, as well as the manufacturer's retail pricing
information and itemized pricing for manually prlced components'
. Include documentation supporting medical necessity for all accessories.
, Be documented on the Wheelchair/Scooter/Stroller Seating Assessment Form, which must be
slgned and dated by the qualifìed practitioner completing the assessment (occupational therapist,
pñysÍcal therapist, or physician), and the QRP who was present and participated in the assessment.
AIi rignatut..ãnd daies'must be current, unaltered, original, and handwritten' Computerized or
stamped signatures and dates will not be accepted,
. Be submitted with the prior authorization request for the wheeled mobility system' The Form must
be completed, signed and dated as outlined above.

2,2,14.1 I Fttting of Custom Wheeled Moblllty Systems
The fitting is defined as the time the Q tting the
various sys system to the client. It may ning the
client or ca led mobilify system, Time s or travel
time without the client present' is not included.
A fitting is required for any device meeting the definition of a wheeled mobility system as defined under
subsecti,on Z,i,A.e, "Wheeled Mobility Systems" in thls handbook'

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 DURABLE MEDICAL EQUIPMDNT, MEDIC,{L SUPPLIES, AND NUTRITIONAL PRODUCTS
HANDBOOK

The fitting of a wheeled mobility system must ber

. perforrned by the same QRP that was present for, and participated iu, the seating assessment of the
client,
. Completed prior to submitting a claim for reimbursement of a wheeled mobiliry system.

The QRP performing the fìtting will:
. verifi the wheeled mobility system has been properly fìtted to the client,

. Veri$, that the wheeled mobility system will meet the client's functional needs for seating,
positioning, and mobility.
. Verify that the client, parent, guardian ofthe client, and/or caregiver ofthe client has received
training and instructiòn r"gu.âitrg the wheeled mobility system's proper use and maintenance.
The eRp must complete and sign the DME Certifìcation and Receipt form after the wheeled mobility
sy$tem has been delivered and fitted to the client,
components of the fltting as outlined above have
submission of a claim for a wheeled mobility syst
instructions on the form to a.llow for proper claims processing,
Services forfìtting of a wheeled mobility system by the QRP must be submitted for reimbursement by
the DME providei of the wheeled mobiiity system using procedure code 97542 with modifìer
U2, The
in the seating assessment as the performing provider
UME provider must list the QRP who partÍcipated
on the claim for all components of the wheeled mobility system, including the fittlng performed by the

QRP,
All adjustments and modifications to the wheeled mobility system, as well as the associated sewices by
the eÍfp for the seating assessment and fitting, within the first six months after delívery are considered
part of the purchase price and will not be separately reimbursed'
procedure code 97542with modifier U2 must be billed on the same claim as the procedure code(s) for
the wheeled mobility system in order for both seryices to be reimbursed,

2,2.1 4,1 1.1 Prior Authorlzation
prior authorization is required for the QRP performing the frtting of a wheeled mobility system, and
must be included with the request for the wheeled mobility system'
and
The eRp must be directly employed by or contracted with the DME company providing the system,
must be the same QRP who was present at and participated in the client's seating assessment,

A prior authorization may be issued to the QRP in
hours (8 units), for the fitting of any manual or po
hour (4 units) may be authorized to the QRP with
that fÌtting of three or more major systems is required, or that additional client training is required
for
such syste-ms, Major systems can include, but are not limited to, the f