Part 1.
TEXAS DEPARTMENT OF HUMAN SERVICES
Chapter 4.
MEDICAID PROGRAMS--CHILDREN AND PREGNANT WOMEN
Subchapter A. ELIGIBILITY REQUIREMENTS
40 TAC §4.1002
The Texas Department of Human Services (DHS) adopts an amendment
to §4.1002 in its Medicaid Programs--Children and Pregnant Women chapter.
The amendment is adopted with changes to the proposed text as published in
the March 17, 2000, issue of the
Texas Register
(25 TexReg 2321).
Justification for the amendment is to implement House Bill 2896, 76th Legislature,
which amended Section 533.0075 of the Government Code regarding pregnant women
in managed care plans. The department decided that the amendment requiring
that pregnant women have access to medical care within 30 days after application
should be extended to all Medicaid applicants.
The amendment will function by allowing expedited processing of Medicaid
applications from pregnant women to ensure they have access to medical care
within 30 days after application.
During the comment period, DHS received comments from one individual. A
summary of the comments and DHS's response follows:
Comment: A comment was received regarding proposed §4.1002(3), which
pointed out that the rule was not clear as to what verification would be postponed
and what the effect would be on an eligibility determination.
Response: DHS agrees with the comment and, since the purpose of the rule
is to ensure that an applicant who is potentially eligible based upon their
self-declaration of information at the time of application has access to medical
care within 30 days after the application, the wording has been updated accordingly
to allow access to services while verification is pending, if necessary.
Additionally, DHS received a comment from the Texas Hospital Association
supporting the proposed change to this rule.
The amendment is adopted under the Human Resources Code, Title
2, Chapter 32, which provides the department with the authority to administer
medical assistance programs, and under Texas Government Code §531.021,
which provides the Health and Human Services Commission with the authority
to administer federal medical assistance funds.
The amendment implements the Human Resources Code, §§32.001-32.042.
§4.1002.Application Procedures.
Applicants for Medicaid programs follow the application procedures
for Temporary Assistance for Needy Families (TANF) described in §3.301(a)(1)
through 3.301(a)(3); §3.301(a)(5); §3.301(b); §3.301(c) of
this title (relating to Responsibilities of Clients and the Texas Department
of Human Services (DHS)); §3.302 of this title (relating to Definitions
Relating to the Application Process); §3.303(a) of this title (relating
to Receipt of Application - Acceptability Factors); §3.304(a) of this
title (relating to Application Interview); and §3.307(a) of this title
(relating to Authorized Representative), with the following exceptions:
(1)
There are no conditions limiting the designation of an
authorized representative for Medicaid applicants and clients.
(2)
No application is required for children born to mothers
who are eligible for and receiving Medicaid at the time of the children's
birth.
(3)
Applications for Medicaid from pregnant women will
be processed in an expedited manner to ensure an applicant who is potentially
eligible based on their self-declaration of information at the time of application
has access to medical care within 30 days after application.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 11, 2000.
TRD-200003328
Paul Leche
General Counsel, Legal Services
Texas Department of Human Services
Effective date: May 31, 2000
Proposal publication date: March 17, 2000
For further information, please call: (512) 438-3108
Chapter 800.
GENERAL ADMINISTRATION
The Texas Workforce Commission (Commission) adopts the amendments
to §800.2, relating to definitions, §800.191, relating to Appeals
and new §800.178, relating to Sanctions under the Workforce Investment
Act (WIA). Section 800.191 is adopted with changes to the proposed text as
published in the March 24, 2000, issue of the
Texas
Register
(25 TexReg 2556). Sections 800.2 and 800.178 are adopted without
changes and will not be republished.
The adoption of the Review of 40 TAC, Chapter 800, Subchapter E, is being
published in this same issue. As part of this review process, the Commission
has adopted amendments to §§800.152, 800.177 and 800.181.
Background and Purpose. As provided by WIA (29 U.S.C. §2801
The purpose of the changes is to provide a framework of oversight reflective
of the WIA principles and the principles of Texas' vision as outlined in the
Texas Strategic Five-Year State Workforce Investment Plan for Title I of the
Workforce Investment Act of 1998 and the Wagner-Peyser Act for the Period
of July 1, 1999--June 30, 2004 -- Transition Plan (State Plan). Specifically,
the WIA principles are: streamlining services, empowering individuals, universal
access, increased accountability, strong role for Boards and the private sector,
and state and local flexibility. The four principles of Texas' vision are:
limited and efficient state government, local control, personal responsibility,
and support for strong families.
WIA and its implementing regulations have imposed on the Boards a number
of duties and responsibilities for the administration of WIA-funded activities,
including maintaining adequate fiscal systems, complying with the uniform
rules for administration of grants and agreements, meeting the contract performance
measures, and complying with all applicable state and federal statutes and
regulations. The Commission is responsible for oversight of the Boards' activities
and for identifying failure to meet contract performance levels or noncompliance
with WIA or the State Plan.
The adopted rules emphasize the partnership between the Commission and
the Boards in assuring compliance with WIA requirements. Section 800.178 describes
the involvement of the Commission in preventive maintenance and related requirements
under WIA to provide services through a One-Stop Service Delivery Network.
The Commission requires that all workforce services, such as those funded
under the Department of Labor, Welfare-to-Work (WtW) block grant, be integrated
into the One-Stop Centers. The Commission will withhold WIA administrative
funds for failure to establish a fully integrated One-Stop Service Delivery
Network, which includes WtW, among other services for which the Boards receive
funds under contract with the Commission. The purpose of preventive maintenance
is to assist the Boards in correcting deficiencies and meeting WIA statutory,
regulatory and contract responsibilities. If preventive maintenance and initial
corrective actions are not successful in assisting the Boards with compliance,
the Commission will consider the sanction actions described in §800.178
to ensure that WIA services continue to be available in the workforce areas
and that there is no interruption of services. The amendment to §800.191
clarifies that appeals to sanctions relating to WIA are not governed by §800.191
and that the hearing officer submits the proposal for decision to the Commission's
executive director for final decision.
Comments were received from Boards including the Dallas County Workforce
Development Board, the North Central Workforce Development Board, the Permian
Basin Workforce Development Board, the South East Texas Workforce Development
Board, the Texoma Workforce Development Board, and the West Central Workforce
Development Board. Responses to the comments are as follows. Any changes to
the language of the proposed rules are explained in the responses to the comments
or for the purposes of clarity.
The review, amendments and new section are adopted under Texas Labor Code §301.061
and §302.002, which provide the Commission with the authority to adopt,
amend, or repeal such rules as it deems necessary for the effective administration
of Commission services and activities.
COMMENT: Regarding §800.177, the commenter recognized the need for
sanctions related to participation rates since these are federal requirements;
however, since the Commission has not been able to provide accurate information
in a timely manner, the commenter recommended that this section be removed
until the appropriate data can be provided to the Commission and Boards. A
commenter also expressed concern that failure to attain participation rates
results in a loss of funds and stated that it seems to imply that there is
a direct relationship between expenditures and participation rates. The commenter
further stated that if this can be documented as consistently valid, this
would be an appropriate sanction; however, if this cannot be demonstrated,
alternate sanctions already identified in §800.171 would be more reasonable.
The commenter encouraged the Commission to examine the data to determine if
there is in fact a direct relationship between expenditures and participation
rates prior to considering implementation of this section.
RESPONSE: Section §800.177 was not amended nor part of the proposed
changes as published in the
Texas Register
.
In addition, this section has been in place since April 1998, at which time
the rules were adopted after a 30 day public comment period and the Commission
considered public comments prior to adopting the existing rule.
COMMENT: One commenter stated observations regarding the context and effect
of the rules as follows: the WIA performance issues are new and there is little
history concerning correcting performance; early figures from the wage data
for the JTPA completions and results cause concern; the model includes too
much time between actions and recorded results; Boards will require equal
time to correct poor performance; through efforts in the TANF program two
to four month delays were experienced in performance reporting and a three
to four month period is necessary to register the results for any systemic
correction; and the WIA program and the chosen performance model will amplify
the delay to between 13 and 15 months between performance and recorded results.
The commenter strongly urged the Commission to consider the relevance of any
performance improvement plan within this model and the proposed rule, and
commented that it would appear that a second year of failed performance might
already be guaranteed prior to reporting a first year failure. The commenter
requested that the Commission research the issue prior to formal acceptance
of this rule and stated that the strategies for improving performance can
only be successful if time permits.
RESPONSE: The WIA performance system does require the use of UI wage record
data. This is part of the WIA performance system that is specifically described
in the statute. The Commission did not choose this model but is complying
with federal requirements. The time lag for UI wage record data will require
consideration as part of the sanctions process but the five month lag for
the entered employment measures should allow for a more reasonable time between
performance and results than cited in the comment. There is an eleven month
lag in obtaining performance data for the measures requiring a two quarter
period for wage gain and job retention, and these will be difficult to apply
to the sanctions process. The Commission is currently researching performance
measures for WIA that are based on data that does not require UI wage records.
However, the state will have to maintain compliance with the WIA performance
system required by federal law. Boards must take intermediate steps, closely
monitor performance, and anticipate meeting standards. One effective tool
the Boards may utilize is the Funds Utilization Service Level reports and
monthly expenditure reports as referenced in the proposed reallocation rules,
published in the Texas Register on April 28, 2000, that are anticipated to
be adopted after public comments are considered by the Commission. For these
reasons, the Commission does not agree that the language in the rule requires
modification.
COMMENT: Regarding §800.178, one commenter asked whether, under WIA
rules for second year non-performance, the sanctions are set in the rule or
are these Commission's rules. The commenter stated that the sanctions are
too severe. The commenter asked how a Board can be decertified when the chief
elected officials (CEO) are involved in the creation of the Board. The commenter
stated that merging workforce areas creates a political as well as logistic
problem. The commenter also stated that having two areas merge with areas
having different interests or problems goes back to a centralized form of
governmental management and takes away local control. The commenter further
stated a concern that decisions are made without due consideration of the
difference in areas such as the size and complexity of a merged workforce
area. The commenter stated that political and logistical problems arose several
times while the Board was getting up and organized and that the problem could
be even larger when other programs are added because a Board might end up
over two operations, which would be confusing and stressful for the Board's
Executive Director and management staff.
RESPONSE: The Commission asserts that the sanctions set forth in §800.178
reiterate the sanctions set forth in WIA §136 and §184 and in state
law in Texas Government Code §2308.268 and §2308.269 that are applicable
to the federal funding. Additionally, the sanctions are the same as the sanctions
provided for in predecessor law and those that have been applied in Texas.
Furthermore, the formation of a Board is governed by prior consistent law
contained in Texas Government Code Chapter 2308, and the authority for decertifying
a Board is expressly set forth in §136(h)(2) as within the authority
of the State. The Commission appreciates the significant efforts entailed
in ensuring effective local coordination and regional cooperation and the
added efforts by Boards to address all interests as well as the complexities
that arise when a Board is faced with decertification. Likewise, the Commission
encourages the Boards to strive to ensure that decertification and reorganization
are never necessary. The Commission anticipates making every effort to work
with Boards to avoid having to recommend such an admittedly drastic action.
However, the Commission is required by Texas Government Code Chapter 2308
and WIA to ensure effective administration of workforce training and services
to workforce areas and acknowledges the need to maintain the ability to make
the full range of sanctions available. For these reasons, the Commission does
not agree that the language in the rule requires modification.
COMMENT: Regarding §800.178, one commenter also recommended that when
the Commission analyzes the second year reorganization plan, the Commission
should include a statement where the Commission's Technical Assistance Division
would be working with the Board's preventive measures. Local communities and
customers suffer when a Board's local structure is reorganized.
RESPONSE: The Commission asserts that preventive maintenance would have
been provided prior to second year reorganization. For this reason, the Commission
does not agree that the language in the rule requires modification.
COMMENT: Regarding §800.178, one commenter observed that if every
Board decided to re-procure for service provider contracts to operate the
workforce centers, the Commission could discover that there is a shortage
of good quality service providers in the market.
RESPONSE: The Commission agrees that service providers may vary in the
degree of quality and effectiveness and encourages Boards to avoid the need
for the Commission to impose the sanction of prohibiting a Board from using
a particular service provider. Specifically, the Commission encourages the
Boards to utilize effective monitoring tools as referenced in Chapter 800
Subchapter I relating to monitoring. Likewise, the Commission encourages the
Boards to take other proactive oversight and other contract management actions
as appropriate to ensure that the Commission is not required to impose a sanction.
The Commission's experience is that sufficient numbers of providers emerge
when there is free and open competition. For these reasons, the Commission
does not agree that the language in the rule requires modification.
COMMENT: Regarding §800.178, one commenter stated that performance
standards are a very real issue for Boards and will impact the status of sanctions
in various ways. The commenter stated that the Commission and the Boards must
be careful to negotiate realistic performance standards in the next cycle.
The commenter asserted that the programs that serve the needs of individuals
do not necessarily meet performance standards. The commenter stated that lag
time for WIA reporting can also affect those standards. The commenter urged
the Commission to be very careful in setting local performance standards for
each board. A second commenter stated that it is highly possible that a Board's
service provider could have all the program designs in place and still fail
to meet performance standards. The second commenter strongly encouraged the
Commission to negotiate realistic performance standards for Boards and stated
that there are far too many performance standards.
RESPONSE: The Commission is required by state and federal law, including
WIA and prior consistent state law, to ensure effective administration of
workforce training and services. The State in the past has obtained agreement
from the United States Department of Labor that local level negotiations occur
prior to setting state standards to ensure reasonable local and state performance
measures. The State developed a multiple regression model to adjust performance
to account for local economic conditions and characteristics of participants
served. The model allows the Commission to establish reasonable and appropriate
performance standards for local areas. Compliance with program designs should
be embedded in any service delivery and performance should reflect the quality
of the implementation of a compliant program design. The purpose of each performance
standard is designed to effectuate utilization of funding throughout the State
in a manner consistent with assisting as many eligible participants as possible
with accessing and availing themselves of the workforce training and services
offered through federal and state and local funding resources. The Commission
does not set the number of performance measures. Rather, the number of performance
measures are set through federal statute and the State General Appropriations
Act. For these reasons, the Commission does not agree that the language in
the rule requires modification.
COMMENT: Regarding §800.178(d)(1) and (2), one commenter recommended
that the phrase "chief elected officials" be deleted from both these sections.
The commenter stated that the chief elected officials may not be grant recipients
and have not been parties to the Board's Master Contract with the Commission.
RESPONSE: WIA §184 specifically requires that the CEOs comply with
the appropriate uniform administrative requirements and provides that a substantial
violation of a specific provision of Title I of WIA requires the imposition
of sanctions. For these reasons, the Commission does not agree that the language
in the rule requires modification.
COMMENT: Regarding §800.178(d)(4)(B), one commenter suggested that
it is unclear why the Texas Council on Workforce and Economic Competitiveness
(TCWEC) would issue a notice of intent to cease immediately reimbursement
of all program costs when TCWEC does not have a contractual relationship with
the Board. The commenter asked whether this language should be changed to
reflect that TCWEC will instruct the Commission to issue a notice.
RESPONSE: Texas Government Code §2308.269 requires that TCWEC impose
sanctions if the Commission finds a substantial violation, and one of the
possible sanctions is to issue a notice of intent to cease reimbursement.
The Commission anticipates that TCWEC will issue notice to the Commission
and the Commission would then issue a notice to the Board. For these reasons,
the Commission does not agree that the language in the rule requires modification.
COMMENT: Regarding §800.178(f), one commenter requested that the definition
of repayment reflect the language within the master contract and recommended
the following language: "The Board shall be held liable for all debts to the
Commission and shall resolve such matters in accordance with §30 of the
Master Contract. After exhausting all other possible remedies, and provided
no other resolution is acceptable, the Board and the chief elected officials
(CEOs) shall be liable in accordance with WIA §117(d)(3)(B)(i)(I), to
the extent allowed by law." The commenter asked if the Commission will exercise
the same sequential remedies that are included in Section 30 of the Master
Board Contract prior to requiring repayment from both the Board and chief
elected officials under this proposed section.
RESPONSE: The language in the rule is general in nature and tracks the
language of WIA §117(d)(3)(B)(i)(I) as it relates to CEO's liability.
This provision in WIA provides that the CEOs are ultimately and finally responsible.
However, the Commission agrees that the language in the Master Contract sets
forth more specific provisions, including the sequential remedies, for methods
of recouping funds from the Board and CEOs, including providing for the timely
collection of funds from specific resources or other entities in a manner
to reduce the CEO's liability. The Commission would add that all avenues under
the contract to resolve disputes will be pursued to assist CEO's in meeting
their liability. For these reasons, the Commission does not agree that the
language in the rule requires modification. Likewise the section number referenced
in the rule may change making it impractical to reference specifically.
COMMENT: Regarding §800.191, one commenter asked "Why is an appeal
to TCWEC prohibited?" and "If TCWEC made the decision to decertify then why
couldn't the Board appeal the decision and have a chance to state the Board's
case?"
RESPONSE: The purpose of the language in the rule is to clarify that actions
by other entities such as TCWEC would not be governed by the provisions in
this rule. The Commission can only establish procedures related to its own
authority, not another agency. The rule is not intended to indicate that an
appeal to TCWEC is prohibited. The appeal provisions relating to decertification
are set forth in WIA §136. For these reasons, the Commission does not
agree that the language in the rule requires modification.
Commenter: Regarding §800.191, one commenter questioned why there
is no provision for Boards to appeal the Commission's decision to forward
recommendations to the TCWEC under §§800.178(b), 800.178(c), and
800.178(d)(4) of the proposed rule. Another commenter asked if TCWEC was apprised
of this rule and of TCWEC's need to have an appeals procedure for actions
TCWEC may take on Commission recommendations under this subsection.
RESPONSE: The Commission believes that judicial economy would require that
any appeal regarding the forwarding of recommendations to TCWEC would be duplicative
or subsumed within an appeal of any resulting adverse action taken by TCWEC.
The Commission also asserts that there are a number of other reasons that
support not developing an appeal process from mere recommendations to TCWEC,
including the following: The added appeal process would potentially cause
undue delays and added administrative costs that would potentially hamper
the Commission's ability to efficiently make recommendations to TCWEC and
thereby hamper the Commission's and the State's ability to ensure that federal
and state funds are not wasted. For that reason, the Commission does not see
a need to modify the rule at this time. The role of TCWEC regarding sanctions
is set forth in part in WIA and in part in the provisions in Texas Government
Code Chapter 2308. In cases of second year non-performance of any kind, TCWEC
has final authority to determine the necessity for the imposition of sanctions
and the sanction to impose under the law. In the case of non-compliance with
requirements, TCWEC has the final authority to determine the appropriate sanction
under the law. The Commission has given TCWEC the opportunity to comment on
the proposed rules. For these reasons, the Commission does not agree that
the language in the rule requires modification.
COMMENT: Regarding §800.191(b), two commenters suggested that the
Commission change the language to read,"...within ten working days of the
date of receipt of notice ..." One commenter stated that it is impossible
to hold the Board liable for a response in correspondence that is delayed
internally, delayed by the post office, or never sent through some internal
mix-up. One commenter also stated that the date of delivery should be verified
through "return receipt requested," and the clock should begin from that date.
One commenter also asserted that fax should not be an allowable substitute
for something of this legal weight. One commenter further stated that if the
Commission elects to incorporate the proposed change, the language should
be incorporated throughout the sanction and de-obligation policies and asserted
that the language agreement throughout the process is critical to the integrity
of the process. A second commenter stated that counting from the date of receipt
would allow for adequate time for local response.
RESPONSE: The Commission agrees with the recommendation of the commenter
to change the date to the date of receipt of notice to afford the Boards of
a full ten working days after notice has been received. The rule will be changed
accordingly.
COMMENT: Regarding §800.191(c), two commenters recommended that language
be added to clarify that the hearing officer will be an individual outside
of the Commission and outside the supervision of the Commission's Executive
Director. One commenter suggested that the use of a Commission employee could
be perceived as a conflict-of-interest or lack of impartiality in the hearing.
A second commenter asked whether this is the formal hearing process or some
interim step. The second commenter stated that the commenter was under the
impression that the formal appeal would go to a specific state entity charged
with hearing such appeals. The second commenter believed that both processes
should exist: a less formal internal appeal, and the formal appeal to be conducted
by an independent third party.
RESPONSE: Section 800.191(c) was included to clearly establish the right
of a Board to appeal the imposition of a sanction. The procedures of that
appeal would be determined by the requirements of the federally funded program
involved and the nature of the Board's deficiency. The Commission may utilize
impartial hearing officers from inside the agency or outside the agency. The
Commission asserts that an impartial hearing officer is free from bias relating
to any findings resulting from a hearing, whether that hearing is conducted
within the agency or outside the agency because the hearing officers are bound
by ethics. To further clarify and resolve any perceived conflict of interest,
the Commission recognizes the need to modify the appeals procedure to allow
for another level of review. To add this level of review, the Commission will
amend the appeals procedure to enable the Workforce Development Director to
make the initial decision regarding any sanctions to be imposed. If a timely
appeal from the initial decision is filed, the sanction will then be reviewed
by the Commission's Executive Director. The Commission feels that modifying
the review process in this way will ensure integrity in the review process
and this should adequately address the commenter's concerns.
COMMENT: In general, one commenter expressed hope that the comments would
assist the Commission in the decision making process and that the Commission
will continue to provide meaningful comment opportunities to local partners.
Further, the commenter expressed appreciation for the opportunity to offer
verbal and formal written comments on the proposed sanction rules. The commenter
also expressed thanks for the Commission working to make this process inclusive
and meaningful. Another commenter also stated that the Board appreciated the
opportunity to provide comments on these proposed rules.
RESPONSE: The Commission benefits greatly from the comments provided by
the Boards and the public, and appreciates the time spent by Board chairs,
Board members and Board executive directors, as well as other members of the
public in sending comments to the Commission for consideration.
Subchapter A. GENERAL PROVISIONS
Part 20.
TEXAS WORKFORCE COMMISSION