1.0 Purpose

This policy establishes funding from the Texas Department of State Health Services (DSHS) for HIV-related medical and support services as the Payor of Last Resort (POLR). It directs DSHS-funded administrative agencies (AA) and contracting service providers to establish and enact policies and procedures to ensure the use of DSHS funds as POLR.

DSHS receives federal grant funds through the Ryan White HIV/AIDS Program (RWHAP) and state general revenue funds to provide HIV-related medical and support services to low-income residents of Texas. State Service Funds (SS) are the state funding source for this program. Federal and state laws and policies require the use of RWHAP and SS funds as the POLR. These funds may not pay for any item or service for which another payor paid for or is expected to pay for. Other payors include, at a minimum, public or private health insurance coverage, including Medicaid, Medicare, CHIP, Affordable Care Act Marketplace, and employer-based health insurance. Local AAs may provide information about other resources considered as payors. DSHS recommends agencies work with their AA to determine the appropriate metrics and actions needed to fulfill this requirement.

HIV/AIDS Bureau Policy Clarification Notice (PCN) 21-02 states that: “RWHAP recipients and subrecipients must ensure that reasonable efforts are made to use non-RWHAP resources whenever possible, including establishing, implementing, and monitoring policies and procedures to identify any other possible payors to extend finite RWHAP funds. RWHAP recipients and subrecipients must maintain policies and document their efforts to ensure that they assist clients to vigorously pursue enrollment in health care coverage and that clients have accessed all other available public and private.” 
 

2.0 Authority

Ryan White HIV/AIDS Treatment Extension Act of 2009 (Public Law 111-87, October 30, 2009);1351 Public Health Service Act, Title XXVI, -HIV Health Care Services Program, Public Law 114-113

Texas Health; 85.031-85.042, 85.040-85.042, 85.061-85.065, 85.115

HRSA HIV/AIDS Bureau (HAB) Policy Clarification Notices (PCN) 21-02 and 13-04.
 

3.0 Definitions

AIDS Drug Assistance Program (ADAP) – Provides medications for the treatment of HIV and its related complications for low-income Texans who are uninsured or underinsured. 

Administrative Agency (AA) – Entity responsible for ensuring a comprehensive continuum of care exists in its funded areas. AAs accomplish this through the management and oversight of HIV care and treatment services funded by federal and state funds under a contractual agreement with DSHS. For a list of AAs, their contact information, and coverage areas, see HIV Administrative Agencies.

Center for Consumer Information and Insurance Oversight (CCIIO) – CCIIO works closely with state regulators, consumers, and other stakeholders to ensure the Affordable Care Act best serves the American people.

Children’s Health Insurance Program (CHIP) – CHIP provides low-cost health coverage to children in families that earn too much money to qualify for Medicaid but too little to afford private health coverage.

Consolidated Omnibus Budget Reconciliation Act (COBRA) – an option for workers and their families who lose their health benefits to continue group health benefits provided by their group health plan for limited periods of time under certain circumstances, such as voluntary or involuntary job loss, reduction in the hours worked, transition between jobs, death, divorce, and other life events.

Essential Community Providers (ECP) – The Affordable Care Act (ACA) defines essential community providers as providers that serve predominantly low-income, medically underserved individuals and specifically include providers described in Section 340B of the Public Health Service (PHS) Act and the Social Security Act. 340B entities include safety net providers listed in the 340B statute as eligible to purchase drugs at a discounted rate through the 340B Drug Pricing Program. CMS further clarified the regulation by identifying six ECP categories: (1) Federally Qualified Health Centers (FQHCs) and FQHC "Look-Alike" clinics; (2) Ryan White HIV/AIDS Program Providers; (3) Family Planning Providers; (4) Indian Health Providers; (5) Hospitals; and (6) Other ECP Providers, including STD clinics, TB clinics, hemophilia treatment centers, black lung clinics, and other entities that serve predominately low-income, medically underserved individuals. To become a provider see Essential Community Providers.

Federal Poverty Level (FPL) – The FPL is a measure of income level determined by the U.S. Department of Health and Human Services, which they update periodically in the Federal Register and primarily use to determine eligibility for certain programs and benefits.

HIV Service Provider – Organization with a contractual agreement with AA to provide HIV-related medical and support services to person(s) living with HIV (PLWH). At the sole discretion of DSHS, non-contracted providers of HIV services may use Take Charge Texas (see below).

HIV Services – Any social or medical assistance defined in the HIV Services Taxonomy paid for with RWHAP Part B, State Services funds through DSHS or both.

Medicaid –  Medicaid is a joint federal and state health insurance program for some people with limited income and resources. The purpose of Medicaid in Texas is to improve the health of people in Texas who might otherwise go without medical care for themselves and their children, and Texas Health and Human Services manages the program.

Medicare – Medicare is a federal health insurance program for people 65 years old or older. Clients can sign up for Medicare three months before their 65th birthday. However, people may be eligible for Medicare earlier if they have disabilities or meet other special criteria.

Modified Adjusted Gross Income (MAGI) – A figure used to calculate income eligibility for lower costs in Marketplace Health Plans as well as eligibility for Medicaid, CHIP, and RWHAP Part B and State Services-funded HIV medical and support services. Generally, modified adjusted gross income is the adjusted gross income plus tax-exempt Social Security, interest, or foreign income an individual may have. If an HIV service provider does not conduct eligibility determination in Take Charge Texas (TCT), the HIV service provider calculates income using the DSHS-provided Income Calculation Form, which is available on the MAGI documents page. An HIV service provider maintains this document in the client's file. An income calculation form is not necessary if the HIV service provider calculates it using TCT.

Provider or Service Provider – A local organization, individual clinician, or group of clinicians who provide services to people living with HIV (PLWH).

Sliding Scale Discount Schedule (SFDS) – Sliding scale fees are based on the cost of services received and the client’s individual income only. Client charges are subject to the limits on client contributions specified in this policy.

State Pharmacy Assistance Program (SPAP) – The Texas SPAP helps HIV-positive individuals who do not qualify for the full low-income subsidy (LIS), also known as Medicare’s Extra Help Program, by covering their out-of-pocket costs associated with Medicare Part D prescription drug plans, including co-payments, deductibles, coinsurance, and premiums during the coverage gap (the “donut hole”).

TakeChargeTexas (TCT) – TCT A web-based system allowing clients, pharmacists, local agency workers, and THMP staff to maintain Ryan White eligibility, demographic, and medication ordering information. 

Texas HIV Medication Program (THMP) – Provides low-income Texans with medications for the treatment of HIV and its related complications. The THMP is the official ADAP for the State of Texas. It also operates the State Pharmaceutical Assistance Program (SPAP), the Texas Insurance Assistance Program (TIAP), and TIAP-PLUS. For more information, see Texas HIV Medication Program-Frequently Asked Questions (FAQ).

Texas Insurance Assistance Program (TIAP) – This program helps low-income Texans with qualified insurance plans with premiums and out-of-pocket medication costs.

Texas Insurance Assistance Program PLUS (TIAP-PLUS) – This program helps low-income Texans with health insurance premiums, medication copayments, and medication deductibles. TIAP-PLUS is for clients who receive insurance through the Affordable Care Act Marketplace or an off-Marketplace qualified health plan.

Vigorous Pursuit – Making a reasonable effort to enroll a client in health care coverage or services for which they may be eligible via payor sources other than Ryan White. The RWHAP requires grantees to maintain policies regarding the required process for the pursuit of enrollment in health insurance or non-Ryan White-supported services for clients. Service providers document the steps taken during their pursuit of enrollment in health insurance and other services for clients and establish strong monitoring and enforcement of subrecipient and contractor processes to ensure clients enroll in services or health insurance paid for by an organization other than Ryan White.
 

4.0 Persons Affected by Policy

• DSHS HIV Care Services staff
• THMP staff
• Administrative Agencies
• Providers
   

5.0 Responsibilities

5.1 DSHS HIV Care Services Staff

Ensures the use of RWHAP Part B and State Services funds distributed by DSHS as the POLR for eligible services and eligible clients. Staff reviews policies developed by AA regarding POLR and assures that AA monitors provider implementation of these policies.

5.2 THMP Staff

Ensures the use of THMP funding as the POLR for eligible services and eligible clients. Verifies client income, insurance status, and residency status before enrolling in the appropriate THMP program and then recertifies eligibility every six months.

5.3 Administrative Agency

Develops and assures compliance with local policies required by DSHS policies and monitors provider billing of third-party payors to determine compliance with POLR requirements.

5.4 Providers

Develop and implement policies and procedures to ensure the use of DSHS funds as POLR.
 

6.0 Screening for Other Payment Sources

HIV/STD Policy 220.001 – Eligibility to Receive HIV Services requires AAs and providers to implement policies and procedures to certify client eligibility for DSHS-funded HIV services every six (6) months. The requirements of this policy and local policies guide providers in documenting client eligibility for services and requirements for referral of clients who may be eligible for public or private insurance or another medical benefit program.

Local areas may specify eligibility criteria in addition to those outlined in policy 220.001. Local eligibility determination and referral vary in terms of the processes used to determine eligibility, the titles of personnel who conduct eligibility screening, and the service categories under which the provider agency completes eligibility determination and benefits coordination. Regardless of these differences, AAs ensure policies and procedures tailored to the local eligibility criteria and determination and recertification processes incorporate DSHS and local standards for comprehensive eligibility review, timely referral, vigorous follow-up (vigorous pursuit), and documentation for these tasks.

Providers demonstrate vigorous pursuit by working to enroll clients in any health plan or program for which they are eligible. The service provider documents actions to enroll a client in a health plan in the primary record or in TCT. A service provider uploads local forms used to assess and enroll a client in a health plan into the client’s primary record, or TCT. Please reference the model form or contact your DSHS program consultant for assistance in developing or acquiring examples of existing forms. The Eligible Metropolitan Area (EMA), Transitional Grant Area (TGA), or HIV Administrative Service Areas (HASA) level AAs define the metric for “vigorous pursuit,” and the AA implements it uniformly within the service area. Making and tracking referrals for benefit counseling and assistance can fulfill this requirement. A service provider documents and tracks referrals for vigorous pursuit documentation. Providers may track and document referrals in the client’s primary record, or TCT.
 

6.1 Affordability and Health Insurance Assistance

For clients concerned about the affordability of job-related or Marketplace insurance, service providers should inform clients that they may be eligible for assistance with health insurance coverage.

Clients who require assistance with plans through the Health Insurance Marketplace or off-Marketplace may be eligible for assistance through TIAP-PLUS. Service providers will follow up with TIAP-PLUS enrolled clients to provide education and medication ordering guidance using the Marketplace Insurance and Pharmacy Benefit Manager (PBM) at the contracted pharmacy.

Using grant funds, contracting providers directly provide access to HIV-related services, or clients receive financial support for health insurance coverage costs indirectly. HIA has been an RWHAP-eligible service from the initial authorization of the program. HIA-funded providers may also use RWHAP and SS funds to provide assistance to eligible clients in making payments associated with health insurance plans, including premiums, deductibles, copayments, or co-insurance payments as an alternative to making direct payment for health services. This policy refers to such payments as HIA payments. HIA includes out of pocket costs such as premium payment, co-payments, coinsurance, and deductibles.

Clients who require assistance with Medicare Part D drug plans and eligible employer-based health insurance may be eligible for assistance through SPAP, TIAP, or TIAP-PLUS as applicable.

Service providers should also counsel the client about the availability of health insurance assistance (HIA) services if such assistance is appropriate under local policies and guidelines (see HIV/STD Section Policy 260.002 – Health Insurance Assistance (HIA)). These services can assist with medical cost-sharing for those enrolled in THMP programs that assist with premium and out-of-pocket medication expenses or assist with both premium and cost-sharing assistance for those not eligible for those programs.

6.2 Special Considerations for Insurance Plans with Non-Continuous Enrollment

While enrollment periods for Medicaid and CHIP are continuous, other programs have limited enrollment periods. If clients appear eligible but are outside an enrollment period, they should receive counseling about opportunities for future enrollment and referrals to organizations or individuals who can further assist them. The service provider documents these efforts, uploads applicable forms to the primary client record or TCT, and follows up with the client once open enrollment begins.

6.3 Special Considerations for Clients Eligible for Veterans Affairs Benefits

It is the client’s right not to receive care through the VA system. Such clients are dually eligible for RWHAP and VA services and, therefore, exempt from the POLR requirement. As with all vigorous pursuit efforts, the HIV service provider clearly documents a client’s refusal of referral to VA services in TCT and retains this documentation in the client's file until otherwise noted by DSHS.

6.4 Considerations for Clients Eligible for Indian Health Service Program Benefits

The purpose of this policy is to clarify that, as per Policy Notice (PCN) 07-01, the use of RWHAP funds for Native Americans and Alaska Natives and Indian Health Service Programs means that PLWH may seek services (primary care or specialty care) either at an Indian Health Service facility or a RWHAP facility. The client does not need a referral to an RWHAP facility. A person who meets eligibility requirements for the RWHAP does not need to first obtain care at an Indian Health Service facility before seeking services at a RWHAP-contracted medical care or specialty care provider.

Procedure:

1. Native Americans who are otherwise eligible to receive RWHAP-funded services may request and must receive those services regardless of whether they are eligible to receive the same services from another form of Native American health services.
    
2. HIV service providers may use RWHAP funds to fill in coverage gaps for individuals who are either underinsured or uninsured to maintain access to care and treatment services as allowable and defined by the RWHAP. RWHAP funds may pay for core medical and support services if another payor does not cover those services or only partially covers those services, even when they receive those services at the same visit.
    
3. HIV service providers screen clients for eligibility in the marketplace.
    
4. Refer to the U.S. Department of the Interior’s Indian Affairs website for the list of the three federally recognized tribes in Texas: bia.gov/service/tribal-leaders-directory/federally-recognized-tribes.

NOTES:

• There are three federally recognized tribes in the state of Texas: (1) Alabama-Coushatta, (2) Tigua, and (3) Kickapoo.
• Indian Health Service (IHS) facilities are exempt from the “Payor of Last Resort” restriction for Parts A, B, and C. 
  
   

7.0 Verification of Coverage

AAs maintain policies requiring providers to verify third-party payment coverage for eligible services at every visit.
 

8.0 Client Refusal to Enroll

Per RWHAP HIV/AIDS Bureau (HAB) PCN 13-04, eligible clients who refuse to enroll in programs or insurance plans must receive continued counseling on their eligibility at each recertification opportunity. An HIV service provider cannot require a client to enroll in insurance and may not refuse treatment services because of refusal. An HIV service provider documents vigorous pursuit of benefit counseling and enrollment in the primary client record or in TCT.
 

9.0 Provider Enrollment in Health Insurance Plans

Health insurance plans cover some but not all RWHAP or SS-eligible services. Eligible services typically covered by health plans include outpatient health services, outpatient mental health services, inpatient and outpatient substance use treatment, pharmaceuticals and drugs, home and community health services, home health services, and hospice services. Providers of these services who receive DSHS funds must make reasonable efforts to enroll as participating or approved providers in the health plans carried by their clients. No waivers are available. If an organization subcontracts the medical services listed above, the requirements below apply to their subcontractors. The HIV service provider documents and maintains these efforts onsite for DSHS and AA review.

9.1 Enrollment in Texas Medicaid

A contracting provider who delivers Medicaid-eligible services must enroll as a Medicaid provider. AAs maintain policies requiring contracting providers to furnish Texas Medicaid ID numbers as a demonstration of enrollment or other documentation that establishes the provider has initiated the application process. If Medicaid denies the provider's application, AAs may use DSHS funds to contract with that provider only if no other Medicaid-enrolled providers are available. Contracting providers whose Medicaid plan has denied enrollment must continue to make good faith efforts to enroll and make evidence of these efforts available to the AA or DSHS upon request.

9.2 Enrollment in Other Health Insurance Plans

AAs maintain and enforce policies that direct contracting providers (including subcontractors) delivering medical services typically covered by other public or private health plans to make good faith efforts to become credentialed as in-network providers on the plans carried by their clients. Providers consult with their AA to determine the “Good Faith Effort” metrics that fulfill this requirement, including how to document those efforts. Providers may prioritize their efforts to become credentialed in the plans carried by the greatest number of clients. Providers must provide documentation of their efforts to become credentialed annually to AAs or DSHS. Providers must show due diligence in their efforts to become credentialed, including requesting inclusion on the list of ECP compiled by the CCIIO, informing health plans of their ECP status as 'write-ins' if CCIIO does not include them on the CCIIO list, and making health plans in their area aware of the unique services they provide. 

For more information, please see Essential Community Providers.

9.3 Referral to In-Network or Enrolled Providers

Providers who are not in-network or approved providers on a client's health insurance plan refer clients to appropriate providers that are in-network on the client’s plan. If no such provider is available, the provider may deliver the service but must show proof of attempted billing to the client’s health plan. Providers consult with their AA to determine an acceptable metric to fulfill and document “attempted billing.”

AAs make providers aware of limitations on health insurance assistance for clients with out-of-network cost-sharing obligations.

Providers who are not participants in THMP pharmacy networks refer clients to an ADAP participating site or Ramsell THMP participating pharmacy, depending on the program the client participates in. Providers do not provide medications to these clients. (See Policy 700.007, Texas HIV Medication Program Texas Insurance Assistance Programs (THMP-TIAPs) for more details.

9.4 Use of DSHS funds for Charges Denied by Health Plans

DSHS funds may not reimburse providers for denied claims resulting from failure to follow plan requirements, such as prior authorization or referral approval. DSHS funds may not reimburse providers for rejected claims if the rejection is a result of provider error, including incomplete or late claim submission. AAs maintain and enforce policies to this effect.
 

10.0 Client Charges for Billable Services

DSHS-funded AAs maintain policies requiring funded providers who deliver services typically billable to public and private health plans to maintain policies and procedures on client charges. For purposes of this policy, DSHS considers providers of Outpatient/Ambulatory Medical Care; Mental Health Services; Medical Nutrition Services; Home and Community-Based Health Services; Home Health; Hospice; Early Intervention Services (if such services are primarily associated with HIV testing and referral); and inpatient and outpatient Substance Abuse Treatment to provide billable services.

Direct service providers must make a schedule of charges to clients for services publicly available, which may include a documented decision to impose only a nominal charge. Recipients and subrecipients operating as free clinics or healthcare for the homeless clinics have the option to waive the imposition of charges, including nominal charges, on RWHAP services provided to eligible clients.

Providers do not charge clients with individual annual gross incomes less than or equal to 100 percent of the FPL for RWHAP services.

10.1 Fee Schedules and Charge Master

HIV service providers develop and design a fee schedule consistent with locally prevailing rates to cover reasonable costs. The providers must use the fee schedule to seek payment from patients and third-party payors.

The schedule may include a documented decision to impose only nominal charges. Such a charge may not be specific to RWHAP or SS clients and must be like charges for non-RWHAP or SS clients. A nominal charge must be a fixed fee that does not reflect the true value of the service(s) provided and that the patient considers nominal. The nominal charge must be less than the fee paid by a patient in the first “sliding fee discount pay class” beginning above 100% of FPL.

10.2 Sliding Fee Discount Schedule (SFDS)

Affected providers also develop an SFDS based on the client's ability to pay. Providers base eligibility for the SFDS on a percentage of FPL using only the HIV-positive client’s annual individual income calculated in TCT. In situations when the agency does not have access to TCT or the system is down, providers may use the Income Calculation form. Providers must revise the SFDS annually, at a minimum, to reflect updates to the federal poverty guidelines; see the current FPL for more information. These guidelines change each year, so agencies review them on an annual basis. TCT has the current FPL for each year loaded into the system. The provider establishes policies and operating procedures to ensure they apply SFDS uniformly to eligible patients.

10.2.1 Determining Eligibility for Sliding Fee Discounts

Providers of billable services must have supporting processes and operating procedures in place for assessing MAGI for clients or must have a documented procedure for using the MAGI calculated during certification or re-certification for DSHS-funded services. If a client has had no changes in income, household composition, residence, immigration status, or insurance coverage since the previous full MAGI-based eligibility screening, a self-attestation of “no changes” may satisfy eligibility determination requirements. If a client attests that there have been no changes, use the MAGI income calculation from the previous eligibility screening. A HIV service provider conducts eligibility determinations in an efficient, respectful, and culturally appropriate manner to ensure administrative operating procedures for such determinations do not themselves present a barrier to care. The service provider protects patient privacy and confidentiality throughout the process. Once assessed, a patient who meets the income guidelines would receive a sliding fee discount based on the SFDS. As required by RWHAP, clients with an individual annual income at or below 100% FPL must receive a full discount, meaning there are no charges assessed. Nominal fees do not apply to this group. Regardless of client income, HIV service providers cannot refuse services based on the client's ability to pay, and SFDS policies and operating procedures must reflect this.

10.2.2 Clients with Third-Party Coverage Who are Also Eligible for SFDS

Clients with health insurance coverage have incomes that would make them eligible for the SFDS established by the provider. Such clients must use their insurance but may be eligible to have the co-payment or co-insurance required by their insurance plan reduced based on the SFDS, subject to potential legal and contractual limitations. If this is allowable, the charge to these clients is the maximum amount an eligible patient in that pay class must pay for a certain service, regardless of insurance status. If the client receives HIA services, these funds may pay the reduced charge if the service is HIV-related and otherwise qualifies for payment by HIA. Providers may not seek reimbursement from RWHAP or SS for the difference between the insurance charge and the reduced charge collected from the payment. However, the terms of contracts providers hold with health insurance plans may not allow discounting client co-pays and co-insurance, and discounting client cost-sharing obligations may also be inappropriate for Medicare clients. Providers may wish to consult with their third-party payors, legal counsel, or private legal counsel regarding the permissibility of discounting patients’ out-of-pocket costs. The provider documents how they approach the issues of cost-sharing requirements and SFDS in their policies on SFDS.

10.3 Posting of Fee Schedule

HIV service providers publicly post the SFDS, which contains language assuring clients' services are available regardless of their ability to pay.

10.4 Collecting and Waiving Client Fees

Service providers make reasonable attempts to collect fees. The provider must establish policies for waiving client fees. The policy must include criteria for waiving charges and specify the staff with the authority to approve fee waivers. They must apply this policy consistently.

10.5 Caps on Client Charges

RWHAP legislation requires providers to charge clients no more than a maximum amount (cap) in a calendar year. Providers base the cap on the eligible client's individual annual gross income as follows:

• Five percent for patients with incomes between 100 percent and 200 percent of FPL.
• Seven percent for patients with incomes between 200 percent and 300 percent of FPL.
• Ten percent for patients with incomes greater than 300 percent of FPL.

Provider policies must specify that once a client's annual aggregate charges reach the cap, they may make no additional client charges.

10.5.1 Tracking Client Charges and Out of Pocket Expenditures

Providers track client charges to ensure they do not exceed the aggregate caps specified in Section 11.5. Providers are not responsible for tracking charges from other providers, but if clients produce reasonable documentation for these charges, providers include them in the tracked total. Examples of client out-of-pocket charges include client fees for services, drug co-payments or co-insurance payments, premiums, and enrollment fees.
 

11.0 Program Income

HIV service providers consider income resulting from payments for HIV services by clients or from insurance companies to be program income. Service providers retain program income derived from DSHS-funded services and follow DSHS rules on reporting and use of such income derived from Ryan White Part B to expand the scope of the project. Providers also follow additional requirements of DSHS-funded AAs specified in the contract or policy.
 

12.0 Additional Resources

DSHS has provided a sample form to document efforts to enroll clients with other payors.
 

13.0 Associated Policies

14.0 Additional Resources

15.0 Revision History