TITLE 1.ADMINISTRATION

Chapter 3. CRIMINAL JUSTICE DIVISION

The Office of the Governor adopts amendments to Subchapter B §3.87; and Subchapter C §3.505, §3.719, and §3.1413, without changes to the proposed text as published in the February 7, 2003, issue of the Texas Register (28 TexReg 1029).

The adopted amendments provide processes and procedures relating to grants made through the Criminal Justice Division and include, but are not limited to, program income, eligible applicants under the Victims of Crime Act Fund, district attorney agreement under the Edward Byrne Memorial Fund, and grant period under the Rural Domestic Violence and Child Victimization Enforcement Program.

The adopted amendment to §3.87(e) adds language that was previously contained in §3.719(a)(5) because this language relates primarily to program income. The adopted amendment also adds the words "accrued interest" to §3.87(e) because accrued interest is a type of program income.

The adopted amendment to §3.505 conforms the list of eligible applicant under the Victims of Crime Act Fund to the federal requirements for this funding source.

The adopted amendment to §3.719(a)(4) allows a district attorney who does not have a CJD-funded attorney: (1) to recover some of the cost associated with handling civil forfeiture proceedings; and (2) to develop standardized equitable sharing guidelines for funds, accrued interest, and property attributable to the efforts of a task force that are similar to guidelines applied to funds, accrued interest, and property attributable to the efforts of other law enforcement agencies. In addition, the language in §3.719(a)(5) is deleted and is added to §3.87(e) because this language relates primarily to program income.

The adopted amendment to §3.1413 increases the length of the grant period to 24 months for grants awarded under the Rural Domestic Violence and Child Victimization Enforcement Program in accordance with the federal requirements for this funding source.

No comments were received regarding the amendments.

Subchapter B. GENERAL GRANT PROGRAM POLICIES

2. GRANT BUDGET REQUIREMENTS

1 TAC §3.87

The amendments are adopted under the Texas Government Code, Title 7, §772.006(a)(11), which provides the Office of the Governor, Criminal Justice Division, the authority to adopt rules and procedures as necessary.

The amendments implement the Texas Government Code, Title 7, §772.066(a), which requires the Office of the Governor, Criminal Justice Division, to advise and assist the governor in developing policies, plans, programs, and proposed legislation for improving the coordination, administration, and effectiveness of the criminal justice system.

No other statutes, articles, or codes are affected by the amendments.

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 March 13, 2003.

TRD-200301729

David Zimmerman

Assistant General Counsel

Office of the Governor

Effective date: April 2, 2003

Proposal publication date: February 7, 2003

For further information, please call: (512) 463-1919

Subchapter C. FUND-SPECIFIC GRANT POLICIES

5. VICTIMS OF CRIME ACT FUND

1 TAC §3.505

The amendment of this rule is adopted under the Texas Government Code, Title 7, §772.006(a)(11), which provides the Office of the Governor, Criminal Justice Division, the authority to adopt rules and procedures as necessary.

The amended rule implements the Texas Government Code, Title 7, §772.066(a), which requires the Office of the Governor, Criminal Justice Division, to advise and assist the governor in developing policies, plans, programs, and proposed legislation for improving the coordination, administration, and effectiveness of the criminal justice system.

No other statutes, articles, or codes are affected by the amendment of this rule.

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 March 13, 2003.

TRD-200301730

David Zimmerman

Assistant General Counsel

Office of the Governor

Effective date: April 2, 2003

Proposal publication date: February 7, 2003

For further information, please call: (512) 463-1919

7. EDWARD BYRNE MEMORIAL FUND

1 TAC §3.719

No other statutes, articles, or codes are affected by the amendment of this rule.

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 March 13, 2003.

TRD-200301731

David Zimmerman

Assistant General Counsel

Office of the Governor

Effective date: April 2, 2003

Proposal publication date: February 7, 2003

For further information, please call: (512) 463-1919

14. RURAL DOMESTIC VIOLENCE AND CHILD VICTIMIZATION ENFORCEMENT PROGRAM

1 TAC §3.1413

No other statutes, articles, or codes are affected by the amendment of this rule.

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 March 13, 2003.

TRD-200301732

David Zimmerman

Assistant General Counsel

Office of the Governor

Effective date: April 2, 2003

Proposal publication date: February 7, 2003

For further information, please call: (512) 463-1919

Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 354. MEDICAID HEALTH SERVICES

Subchapter K. MEDICAID RECIPIENT UTILIZATION REVIEW AND CONTROL

1 TAC §§354.2401, 354.2403, 354.2405, 354.2407

The Health and Human Services Commission (HHSC) adopts the amendments to §§354.2401, 354.2403, 354.2405 and 354.2407. Section 354.2401 is adopted with changes to the proposed text as published in the January 3, 2003, issue of the Texas Register (28 TexReg 11). Section 354.2401(10)(A) contained a clerical error during the proposal process and therefore is adopted with changes. The sentence erroneously contained the words "the" and "a". The word "the" has been removed and the correct sentence reads as follows: "Lending or altering a Medicaid card for the purpose of obtaining medical benefits for which a person is not legitimately entitled;" Sections 354.2403, 354.2405 and 354.2407 are adopted without changes and therefore, will not be republished.

Amendments to §§354.2401, 354.2403, 354.2405 and 354.2407 were necessary to enable the Limited Program to be more effective in the identification and limitation of recipients to a Primary Care provider and /or a Primary Care Pharmacy. Definitions added to the adopted amendments to §354.2401 more accurately describe the essential components of the Limited Program.

Adopted amendments to §354.2403 include many improvements to the Limited Program’s monitoring and review methods. The amendments change the way the Limited Program identifies recipients for the program and expands the type of medical providers that a recipient can be limited to from physicians to primary care providers. "Primary care provider" is inclusive of many different providers as identified in the definition under §345.2401. The Special Message is designed to help prevent use of the Medicaid form by an unauthorized person(s). This section also implements periodic evaluations for each recipient’s limited status during the review period. This will help the Limited Program ensure that the limited status is producing the desired results of coordinated care.

Adopted amendments to §354.2405 more clearly describe the functional and operational elements of the Limited Program’s utilization control methods to include recipient notification, the designated primary care provider and primary care pharmacy functions. This section also implements longer limited status periods, which increase in length, as the recipient requires additional periods of limitation. The periods increase from 36 months to 60 months to limitation for the duration of eligibility and subsequent periods of eligibility. A recipient arrested, indicted or convicted of fraud is placed in the Limited Program at the second highest limited status period of 60 months.

Adopted amendments to §354.2407 clearly describe recipient rights. Federal and state regulations require that recipients receive timely and adequate notice of the intent to limit. The recipients are given a period of time to request a fair hearing. This section also ensures reasonable access to Medicaid services and benefits.

There were no comments received by HHSC concerning the proposed rules.

The amendments are adopted under the Texas Government Code, §531.033, which provides the commissioner of HHSC with broad rulemaking authority; Human Resources §32.021 and the Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance Title XIX Medicaid program in Texas.

§354.2401.Definitions.

The following words and terms, when used in the sections under this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Abuse--Practices that are not medically necessary and consequently result in an unnecessary cost to the Medicaid program; improper or excessive use or treatment.

(2) Conflicting--Incompatible, unsuitable for use together because of undesirable chemical or physiological effects. For example, the recipient may receive drugs and/or health care services which may be inadvisable in the presence of certain medical conditions or which conflict with the care ordered by another provider.

(3) Contraindicated--To indicate the inadvisability of a medical treatment or procedure. The definition is similar to conflicting.

(4) Designated Provider--A provider of medical services enrolled, and in good standing with the Medicaid program to whom the Medicaid recipient is assigned by the Limited Program. The designated provider may include primary care providers and primary care pharmacies.

(5) Designated Provider Referral--Communication from the designated provider to another enrolled Medicaid provider requesting certain services be provided to the recipient on Limited Status.

(6) Duplicative--To do over or again, without due justification. The word duplicative applies to, but is not limited to, use of drugs and health care services. For example, the recipient received health care services from two or more providers for the same or similar condition(s) in an overlapping time frame or the recipient received two or more similarly acting drugs in an overlapping time frame, which may result in a harmful drug interaction or an adverse reaction.

(7) Emergency medical condition--A medical condition (including emergency labor and delivery) manifesting itself by acute symptoms of sufficient severity (including severe pain), such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical care could result in:

(A) placing the patient's health in serious jeopardy;

(B) serious impairment to bodily functions;

(D) serious disfigurement; or

(E) in the case of a pregnant woman, serious jeopardy to the health of the fetus.

(8) Emergency services--Covered inpatient and outpatient services that are furnished by a provider who is qualified to furnish such services under a Medicaid provider agreement and are services which are needed to evaluate or stabilize an emergency medical condition.

(9) Excessive Use or Overuse--Exceeding what is usual, medically necessary or customary use of Medicaid services and benefits. Also defined as, but not limited to:

(A) Receipt of treatments, drugs, medical supplies or other Medicaid benefits from one or multiple providers of service in an amount, duration, or scope in excess of which would reasonably be expected to result in a medical or health benefit to the patient; or

(B) Use exceeding the standards and criteria for outpatient prescription drug utilization listed in the compendia and peer reviewed medical literature and/or criteria and standards approved by the Texas Medicaid Drug Utilization Review Board.

(10) Fraud--The intentional deception or misrepresentation made by a person with the knowledge that it could result in an unauthorized or medically unnecessary benefit. Fraudulent activities include, but are not limited to:

(A) Lending or altering a Medicaid card for the purpose of obtaining medical benefits for which a person is not legitimately entitled;

(B) Falsely representing medical coverage

(D) Furnishing incorrect eligibility or false information to a vendor to obtain treatment

(E) Possessing blank or forged prescription pads

(F) Forging, duplicating or altering a prescription

(G) Knowingly assisting providers in rendering services or defrauding the Medicaid program

(H) Selling or trading, or attempting to sell or trade, drugs or supplies acquired through Medicaid.

(11) Limited Program--The Medicaid recipient must access services and benefits through a designated provider. The Medicaid recipient may be limited to a designated provider if, on review, it is found the recipient received duplicative, excessive, contraindicated, or conflicting health care services and/or drugs; or if the review indicates abuse, misuse, or fraudulent actions related to Medicaid benefits and services.

(12) Limited Status--The Medicaid recipient’s limitation to a designated provider, either a primary care provider or primary care pharmacy through the Limited Program. Recipients are limited for specific periods of time as outlined in §345.2405(c) of this title relating to Limited Status Evaluation.

(13) Misuse--To use incorrectly, misapply, or illegally use Medicaid benefits or services. To seek or obtain medical services from a number of like providers and in quantities that exceed the levels considered medically necessary by current medical practices, standards and policies. For example, the medical services are not medically necessary based on the recipient’s diagnosis and / or medical condition or conditions that constitute an abuse of Medicaid benefits and services.

(14) Primary Care Pharmacy--Pharmacy vendor who agreed to coordinate pharmacy services for recipients with limited status. The pharmacy will ensure that all medications prescribed for the limited recipient are not contraindicated, conflicting, duplicative or excessive and that the client’s use does not represent abuse, misuse or fraud.

(15) Primary Care Provider--Health care provider who has agreed to oversee the healthcare benefits and services of the recipient. The primary care provider will provide and/or direct all medically necessary care and services for which the recipient is eligible. The primary care provider can include, but is not limited to, a physician, physician group, Advance Practice Nurse, outpatient clinic, Rural Health Clinic (RHC), or Federally Qualified Health Center (FQHC). The designated primary care provider must be enrolled in Texas Medicaid, not be on payment review status, not be under administrative action, sanction, or investigation for failure to comply with Medicaid rules or acceptable Medicaid practices, and not be under sanction or certain administrative status by the state licensing board.

(16) Recipient--Any individual who is deemed eligible to receive Medicaid benefits and services under the Texas Medicaid Program.

(17) Referrals--Complaint information supplied to the Limited Program regarding recipient use of Medicaid benefits and services. Sources can include, but are not limited to, providers, state agencies, law enforcement officials or members of the general public. Referrals may also be made to other state agencies and/or Medicaid managed care plans.

(18) Services--Allowable and reimbursable medical benefits and services under Title XIX Texas Medicaid Program.

(19) Special Message--A notice printed on the Medicaid Identification form to alert medical providers that the recipient’s card was used or reportedly as used by an unauthorized person or persons or for an unauthorized purpose. This message is not considered a restriction and may be printed on the Medicaid Identification form with or without the recipient being on limited status.

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 March 17, 2003.

TRD-200301769

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Effective date: April 6, 2003

Proposal publication date: January 3, 2003

For further information, please call: (512) 424-6576