Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Chapter 354.
MEDICAID HEALTH SERVICES
Subchapter A. PURCHASED HEALTH SERVICES
2.
MEDICAID VISION CARE PROGRAM
1 TAC §354.1017
The Texas Health and Human Services Commission (HHSC) proposes
an amendment to §354.1017, concerning specifications for eyewear, in
its purchased health services rules.
The purpose of the proposed amendment is to make eyewear frames for adult
Medicaid beneficiaries available in metal and a combination of metal and zylonite.
The proposed amendment also requires that Medicaid providers offer beneficiaries
six styles of frames (at least one style of each type of frame material) in
a choice of three colors for each frame style. The proposed amendment was
suggested during meetings with professional associations of eyewear providers
and will bring Medicaid beneficiaries' eyewear choices in line with current
market practices.
Tom Suehs, Deputy Commissioner for Financial Services, has determined that
during the first five years the proposed amendment is in effect there will
be no fiscal implications to state or local governments as a result of enforcing
or administering the amendment.
Mr. Suehs also has determined that during the first five years the proposed
amendment in effect, the public benefit as a result of adopting the amendment
will be more comprehensive vision care benefit for Medicaid clients. Small
businesses and micro-businesses will not be required to change their business
practices. There are no anticipated economic costs to persons required to
comply with the proposed amendment, nor any impact on local employment.
HHSC has determined that this amendment does not restrict or limit owners'
rights to their property that would otherwise exist in the absence of governmental
action and therefore does not constitute a taking under §2007.043, Government
Code.
Written comments on the proposed rules may be submitted to Brenda Salisbery,
Program Specialist, Medicaid/CHIP Benefits, Texas Health and Human Services
Commission, 1100 W. 49th, Austin, Texas 78756, within 30 days of publication
of this proposal in the
Texas Register
.
The amendment is proposed under the Texas Government Code, §531.033,
which provides the Commissioner of HHSC with broad rulemaking authority; Human
Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas; and the Texas Government Code, §531.021(b),
which provides HHSC with the authority to propose and adopt rules governing
the determination of Medicaid reimbursements.
No other statutes, articles, or codes are affected by the proposed amendment.
§354.1017.Specifications for Eyewear.
The provider must ensure that eyewear meets the following specifications.
(1)
Lenses are clear glass or plastic, meet federal and state
specifications, and meet all standards of the American standard prescription
requirements for first quality glass and plastic lenses dress eyewear.
(2)
Frames are zylonite
, metal, or a combination metal/zylonite
.
(3)
Standard sizes of the frames are dispensed at no cost to
the eligible recipient. An eyeglass supplier must show each eligible recipient
a choice of
six
[
(4)
Frames are only those manufactured in the United States
of America, unless foreign-made frames are comparable in quality to and less
expensive than American made-frames. Lenses are only those manufactured in
the United States of America, unless foreign-made lenses are comparable in
quality to and less expensive than American-made lenses.
(5)
Frames are serviceable and meet prescription quality standards.
(6)
Lenses and frame materials are new.
(7)
Bifocal lenses are a minimum kryptoc 22 MM flat top lens
or equivalent.
(8)
Trifocal lenses are a minimum flat top 7%6125 lens or equivalent.
(9)
Supplies are at least equivalent in quality to program
eyewear provided under this chapter at no cost to the eligible recipients.
(10)
Repair materials for which a charge is made are new and
at least equivalent to the original item and meet the specifications for prosthetic
eyewear cited in these provisions.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on April 28, 2003.
TRD-200302649
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 424-6576
Subchapter E. EPSDT EYEGLASS PROGRAM
1 TAC §§363.502 - 363.504
The Texas Health and Human Services Commission (HHSC) proposes
to amend §§363.502-363.504, concerning early and periodic, screening,
diagnosis, and treatment (EPSDT) vision care services. Section 363.502 concerns
benefits and limitations of the EPSDT eyewear program; §363.503 concerns
eyewear specifications; and §363.504 concerns claims information requirements.
The purpose of the proposed amendment to §363.503 is to make eyewear
frames available to Medicaid beneficiaries' ages 6 months to 21 years in metal
and in a combination of metal and zylonite. As amended, §363.503 would
also make available polycarbonate plastic lens, as prescribed by a vision
professional, and require that Medicaid providers offer beneficiaries six
styles of frames (at least one style of each type of frame material) in a
choice of three colors for each frame style. The proposed amendments to §363.502
and §363.504 delete the requirement that claim forms for plastic lenses
include a justification of medical necessity. Amendments to §363.502
and §363.504 also update Texas Administrative Code chapter and section
references in the rules. The proposed amendments were suggested during meetings
with professional associations of eyewear providers and will bring Medicaid
beneficiaries' eyewear choices in line with current market practices.
Tom Suehs, Deputy Commissioner for Financial Services, has determined that
during the first five years the proposed amendments are in effect there will
be no fiscal implications to state or local governments as a result of enforcing
or administering the amendments.
Mr. Suehs also has determined that during the first five years the proposed
amendments are in effect, the public benefit as a result of adopting the amendments
will be more comprehensive vision care benefits for Medicaid clients. Small
businesses and micro-businesses will not be required to change their business
practices. There are no anticipated economic costs to persons required to
comply with the proposed amendments, nor any impact on local employment.
HHSC has determined that these amendments do not restrict or limit owners'
rights to their property that would otherwise exist in the absence of governmental
action and therefore does not constitute a taking under §2007.043, Government
Code.
Written comments on the proposed rules may be submitted to Brenda Salisbery,
Program Specialist, Medicaid/CHIP Benefits, Texas Health and Human Services
Commission, 1100 W. 49th, Austin, Texas 78756, within 30 days of publication
of this proposal in the
Texas Register
.
The amendments are proposed under the Texas Government Code, §531.033,
which provides the Commissioner of HHSC with broad rulemaking authority; Human
Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas; and the Texas Government Code, §531.021(b),
which provides HHSC with the authority to propose and adopt rules governing
the determination of Medicaid reimbursements.
No other statutes, articles, or codes are affected by the proposed amendments.
§363.502.Benefits and Limitations.
In addition to the services specified in
§354.1023
[
(1)
Recipient eligibility. All Medicaid recipients under the
age of 21 are eligible for EPSDT optometric services. Services may be continued
through the month the eligible recipient becomes 21.
(2)
Provider eligibility. All optometric services reimbursable
by the program must be provided to eligible recipients by a physician, optometrist,
or optician enrolled in the Medicaid Program at the time the service is provided.
(3)
Reimbursable services.
(A)
Examination. One examination of the eyes by refraction
may be provided to each eligible recipient each state fiscal year (September
1-August 31).
(B)
Eyewear. Eyewear that is medically necessary to correct
vision defects may be provided to an eligible recipient. Eyewear include eyeglasses
(lenses and frames), contact lenses, and post cataract surgery prosthetic
lenses.
(i)
Nonprosthetic eyeglasses or contact lenses are available
to an eligible recipient only once every 24 months, unless the recipient's
visual acuity has changed by .5 diopters or more, or the eyewear is lost or
destroyed.
The Texas Health and Human Services Commission or its designee
must authorize in writing prescriptions for contact lenses before dispensing.
Prior authorization is based on the provider's written documentation that
contact lenses are the only means of correcting the vision defect
.
[
[
(ii)
Prosthetic eyewear is provided to an eligible recipient
if prescribed for post cataract surgery, congenital absence of the eye lens,
or loss of an eye lens because of trauma.
(I)
Reimbursement is made for as many temporary lenses as are
medically necessary during post cataract surgery convalescence (four months
after the date of surgery).
(II)
Only one pair of permanent prosthetic eyewear may be dispensed
except to replace lost or destroyed prosthetic eyewear or if required because
of a change in visual acuity of .5 diopters or more.
(C)
Repairs. Eyeglass repairs are reimbursable if the cost
of materials exceeds $2.00. Repairs costing less are not reimbursable and
the provider may not bill the recipient for these repairs.
(D)
Replacement of lost or destroyed eyewear. Replacement of
eyewear is reimbursable. The date nonprosthetic eyewear is replaced begins
a new 24-month ineligibility period for new eyewear unless the conditions
in subparagraph (B)(i) of this paragraph apply.
(E)
Limitations. Eyeglasses for residents of institutions that
include this service in their vendor payment are not reimbursed under this
program.
§363.503.Specifications for Eyewear.
The provider must ensure that eyewear provided through this program
meets the following specifications.
(1)
Lenses are clear glass,
plastic, or polycarbonate,
as prescribed by the vision professional
[
(2)
Frames are zylonite
, metal, or combination metal/zylonite
.
(3)
Standard sizes of frames
for individuals ages 6 months
to 21 years
are dispensed at no cost to the eligible recipient. An eyeglass
supplier must show the recipient a choice of
six
[
(4)
Frames are manufactured in the United States of America,
unless foreign-made frames are comparable in quality and less expensive than
American-made frames.
(5)
Frames are serviceable and meet prescription quality standards.
(6)
Lens and frame materials are new.
(7)
Bifocal lenses are a minimum kryptoc or 22 MM flat top
lens or equivalent.
(8)
Trifocal lenses are a minimum flat top 7%6125 lens or equivalent.
(9)
Supplies are at least equivalent in quality to program
eyeglasses provided under this category at no cost to the eligible recipient.
(10)
Repair materials, if claimed for reimbursement, are new,
are at least equivalent to the original item, and meet the specifications
for eyewear cited in these provisions.
§363.504.Claims Information Requirements.
Providers must meet the criteria established in this subchapter for
optometric services and the provisions for participation in the Medicaid Program
established under Chapter
354
[
(1)
name, address, and Medicaid provider identification number
of the ordering provider, as appropriate;
(2)
description of lenses and frames provided;
(3)
provider's signature on the claim verifying the diopter
change required for the dispensing of eyeglasses;
(4)
certification by the provider that the dispensed materials
used for repairs meet the specifications for eyewear in
§363.503
[
(5)
claims for eyewear with special features, signed by the
recipient, acknowledging selection of eyewear that is beyond the specifications
for eyewear in
§363.503
[
(6)
a copy of the invoice for supplies dispensed, attached
to a claim for repairs or kept the provider, as authorized by the department
or its designee;
(7)
if the claim is for replacement of prosthetic eyewear or
of nonprosthetic eyewear when the records of the
HHSC
[
(A)
submission of a statement justifying the need for the replacement
eyewear (reimbursement is made only if the eyewear was lost or damaged beyond
repair or if the recipient's visual acuity has changed significantly, as specified
in
§363.502(3)(B)(i) or (ii)(II)
[
(B)
claim form signed by the recipient if the original eyewear
was lost or damaged beyond repair; and
[
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on April 28, 2003.
TRD-200302650
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 424-6576
Subchapter B. NEGOTIATION AND MEDIATION OF CERTAIN CONTRACT CLAIMS AGAINST HEALTH AND HUMAN SERVICES COMMISSION
The Health and Human Services Commission (Commission) proposes new
Subchapter B to Chapter 392, Procurements by Health and Human Services Commission, §§392.20
- 392.24, 392.26 - 392.35, and 392.37 - 392.46. The proposed chapter establishes
provisions for the negotiation and mediation of certain breach of contract
claims asserted by contractors against the Commission.
Background and Summary of Factual Basis for the Rules
Texas Government Code §2260.052(c) requires that the units of state
government with rulemaking authority adopt rules to establish provisions for
negotiation and mediation of certain breach of contract claims asserted by
contractors against the State of Texas. Section 2260.052(c) directs the Office
of the Attorney General (OAG) and the State Office of Administrative Hearings
(SOAH) to provide model rules for negotiation and mediation that units of
state government with rulemaking authority may voluntarily adopt or modify
as they deem appropriate. The new chapter is a modified version of the model
rules provided by the OAG and the SOAH.
Section-by-Section Summary
Division 1 of the subchapter contains general provisions. Section 392.20
sets forth the purpose of the subchapter, to describe the provisions for the
negotiation and medication of certain contract claims against the Commission.
Section 392.21 describes the applicability of the subchapter, and the types
of contract claims to which the subchapter is not applicable. Section 392.22
establishes definitions for the subchapter. Section 392.23 provides that the
subchapter's provisions are a prerequisite to suit on certain contract claims
against the Commission, unless the Texas Legislature grants a waiver. Section
392.24 provides that the subchapter does not waive the Commission's sovereign
immunity to suit. Section 392.25 is reserved for expansion.
Division 2 contains provisions relating to negotiation. Section 392.26
sets forth the requirements for a contractor's notice of claim. Section 392.27
sets forth the requirements for an agency counterclaim. Section 392.28 provides
for requests for voluntary disclosure of additional information relating to
the contractor claims and agency counterclaims. Section 392.29 establishes
a duty to timely negotiate claims. Section 392.30 establishes timelines for
negotiating claims and for requesting contested case hearings from SOAH. Section
392.31 relates to the conduct of negotiations. Section 392.32 defines settlement
approval procedures. Section 392.33 discusses the content of settlement agreements.
Section 392.34 provides that parties will be responsible for their own costs
of negotiation, unless their contract provides otherwise. Section 392.35 sets
forth the procedures governing the contractor's request for a contested case
proceeding in front to SOAH. Section 392.36 is reserved for expansion.
Division 3 contains provisions relating to mediation. Section 392.37 sets
forth the timetable for mediation. Section 392.38 defines the mediation process
and the conduct of mediation. Section 392.39 discusses the requirements of
an agreement to mediate. Section 392.40 establishes the minimum qualifications
and immunity of the selected mediator. Section 392.41 discusses the confidentiality
of the mediation procedure and states that a final settlement agreement reached
in mediation will be governed by the provisions of the Public Information
Act. Section 392.41 provides that parties will be responsible for their own
mediation costs, unless the parties agree otherwise. Section 392.43 discusses
settlement approval procedures by the parties. Section 392.44 discusses the
initial settlement agreement reached during mediation. Section 392.45 relates
to the final settlement agreement resulting from the mediation process. Section
392.46 relates to referrals of contested cases to SOAH.
Fiscal Note
Tom Seuhs, Chief Financial Officer, has determined that for the first five
years that the proposed rules are in effect, there will be no foreseeable
economic implications relating to the costs or revenues of the state or local
governments. Pursuant to Government Code Chapter 2260, these entities are
already required to follow the proposed rules' procedures.
Public Benefit
Steve Aragón, General Counsel, has determined that during the first
five years that the proposed rules are in effect, the public will benefit
from adoption of the rules in that the rules will establish procedures for
filing and resolving claims for certain breach of contract actions against
the Commission.
Small and Micro-business Impact Analysis
The proposed rules will not result in additional costs to persons required
to comply with the rules and will not negatively affect local employment.
Regulatory Analysis
The Commission has determined that none of the proposed rules is a "major
environmental rule" as defined by §2001.0225, Government Code. "Major
environmental rule" is defined to mean a rule the specific intent of which
is to protect the environment or reduce risks to human health from environmental
exposure and that may adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment, or the public
health and safety of the state or a sector of the state. None of the proposed
rules is specifically intended to protect the environment or reduce risks
to human health from environmental exposure.
Takings Impact Assessment
The Commission has evaluated the takings impact of the proposed rules under
Texas Government Code §2007.043. The Commission has determined that this
action does not restrict or limit an owner's right to their property that
would otherwise exist in the absence of governmental action and therefore
does not constitute a taking. The proposed rules are administrative and do
not impose any new regulatory requirements. The proposed rules are reasonably
taken to fulfill requirements of state law.
Public Comment
Public comment may be submitted to: Steve Aragón, General Counsel,
Health and Human Services Commission, 4900 North Lamar Boulevard, 4th Floor,
Austin, Texas 78751-2316, Steve.Aragon@hhsc.state.tx.us, Phone: (512) 424-6578,
Fax: (512) 424-6587.
Comments must be submitted in writing by 5:00 p.m., Central Time, on June
9, 2003.
1.
GENERAL
1 TAC §§392.20 - 392.24
Legal Authority
These rules are proposed under authority granted to the Commission by Government
Code §531.033, which authorizes the Commissioner of Health and Human
Services to adopt rules necessary to implement the Commission's duties; Health
and Safety Code §62.051(d), which directs the Commission to adopt rules
as necessary to implement the Children's Health Insurance Program; and Government
Code §2260.052(c), which requires that units of state government with
rulemaking authority adopt such rules.
No other code or statute is affected by these rules.
§392.20.Purpose.
The purpose of this subchapter is to describe the provisions for negotiation
and mediation of certain contract claims against the Texas Health and Human
Service Commission (HHSC), pursuant to the Government Code §2260.052(c).
§392.21.Applicability.
(a)
This subchapter applies to the Texas Health and Human Services
Commission (HHSC).
(b)
This subchapter does not apply to an action of a unit of
state government for which a contractor is entitled to a specific remedy pursuant
to state or federal constitution or statute.
(c)
This subchapter does not apply to a contract action proposed
or taken by a unit of state government for which a contractor receiving Medicaid
funds under that contract is entitled by state statute or rule to a hearing
conducted in accordance with Government Code Chapter 2001.
(d)
This subchapter does not apply to a claim for personal
injury or wrongful death arising from a breach of contract.
(e)
This subchapter does not apply to contracts:
(1)
between a unit of state government and the federal government
or its agencies, another state or another nation;
(2)
between two or more units of state government;
(3)
between a unit of state government and a local governmental
body, or a political subdivision of another state;
(4)
between a subcontractor and a contractor;
(5)
subject to §201.112 of the Transportation Code;
(6)
within the exclusive jurisdiction of state or local regulatory
bodies;
(7)
within the exclusive jurisdiction of federal courts or
regulatory bodies;
(8)
that are solely and entirely funded by federal grant monies
other than for a project defined in §392.22(10) of this subchapter (relating
to Definitions); or
(9)
that are executed or awarded on or before August 30, 1999.
§392.22.Definitions.
The following words and terms, when used in this subchapter, have the
following meaning, unless the context clearly indicates otherwise:
(1)
Chief administrative officer--The commissioner, executive
director, president or other executive officer responsible for the day to
day operations of a unit of state government.
(2)
Claim--A demand for damages by the contractor based upon
the unit of state government's alleged breach of the contract.
(3)
Contract--A written contract between a unit of state government
and a contractor by the terms of which the contractor agrees either:
(A)
to provide goods or services, by sale or lease, to or for
a unit of state government; or
(B)
to perform a project as defined by Government Code §2166.001.
(4)
Contractor--Independent contractor who has entered into
a contract directly with a unit of state government. The term does not include:
(A)
The contractor's subcontractor, officer, employee, agent
or other person furnishing goods or services to a contractor;
(B)
An employee of a unit of state government; or
(C)
A student at an institution of higher education.
(5)
Counterclaim--A demand by the unit of state government
based upon the contractor's claim.
(6)
Day--A calendar day. If an action is required to occur
on a day falling on a Saturday, Sunday, or holiday, the first working day
which is not one of these days should be counted as the required day for purpose
of this act.
(7)
Event--An act or omission or a series of acts or omissions
giving rise to a claim.
(8)
Goods--Supplies, materials or equipment.
(9)
Parties--The contractor and unit of state government that
have entered into a contract in connection with which a claim of breach of
contract has been filed under this subchapter.
(10)
Project--As defined in Government Code §2166.001,
a building construction project that is financed wholly or partly by a specific
appropriation, bond issue or federal money, including the construction of:
(A)
a building, structure, or appurtenant facility or utility,
including the acquisition and installation of original equipment and original
furnishing; and
(B)
an addition to, or alteration, modification, rehabilitation
or repair of an existing building, structure, or appurtenant facility or utility.
(11)
Public Information Act--Texas law governing the release
of public information by a unit of state government, as codified in Government
Code Chapter 552.
(12)
SOAH--State Office of Administrative Hearings.
(13)
Services--The furnishing of skilled or unskilled labor
or consulting or professional work, or a combination thereof, excluding the
labor of an employee of a unit of state government.
(14)
Unit of state government or unit--The state or an agency,
department, commission, bureau, board, office, council, court, or other entity
that is in any branch of state government and that is created by the Constitution
or statute of the State of Texas, including a university system or institution
of higher education. The term does not include a county, municipality, court
of a county or municipality, special purpose district, or other political
subdivision of the State of Texas.
§392.23.Prerequisites to Suit.
The procedures contained in this subchapter are exclusive and required
prerequisites to suit under Chapter 107 of the Civil Practice and Remedies
Code and Chapter 2260 of the Government Code, unless the Texas Legislature
waives the unit of state government's sovereign immunity to suit for the contractor's
claim in accordance with Government Code §2260.007.
§392.24.Sovereign Immunity.
This subchapter does not waive a unit of state government's sovereign
immunity to suit or liability.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 25, 2003.
TRD-200302625
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 424-6576
1 TAC §§392.26 - 392.35
Legal Authority
These rules are proposed under authority granted to the Commission by Government
Code §531.033, which authorizes the Commissioner of Health and Human
Services to adopt rules necessary to implement the Commission's duties; Health
and Safety Code §62.051(d), which directs the Commission to adopt rules
as necessary to implement the Children's Health Insurance Program; and Government
Code §2260.052(c), which requires that units of state government with
rulemaking authority adopt such rules.
No other code or statute is affected by these rules.
§392.26.Notice of Claim of Breach of Contract.
(a)
A contractor asserting a claim of breach of contract under
the Government Code Chapter 2260 shall file notice of the claim as provided
by this section.
(b)
The notice of claim shall:
(1)
be in writing and signed by the contractor or the contractor's
authorized representative;
(2)
be delivered by hand, certified mail return receipt requested,
or other verifiable delivery service, to the officer(s) of the unit of state
government designated in the contract to receive a notice of claim of breach
of contract under the Government Code Chapter 2260; if no person is designated
in the contract, the notice shall be delivered to the unit's chief administrative
officer, and
(3)
state in detail:
(A)
the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of the claim
and each contractual provision allegedly breached;
(B)
a description of damages that resulted from the alleged
breach, including the amount and method used to calculate those damages; and
(C)
the legal theory of recovery, i.e., breach of contract,
including the causal relationship between the alleged breach and the damages
claimed.
(c)
In addition to the mandatory contents of the notice of
claim as required by subsection (b) of this section, the contractor may submit
supporting documentation or other tangible evidence to facilitate the unit's
evaluation of the contractor's claim.
(d)
The notice of claim shall be delivered no later than 180
days after the date of the event that the contractor asserts as the basis
of the claim.
§392.27.Agency Counterclaim.
(a)
A unit of state government asserting a counterclaim under
the Government Code Chapter 2260 shall file notice of the counterclaim as
provided by this section.
(b)
The notice of counterclaim shall:
(1)
be in writing;
(2)
be delivered by hand, certified mail return receipt requested
or other verifiable delivery service to the contractor or representative of
the contractor who signed the notice of claim of breach of contract; and
(3)
state in detail:
(A)
the nature of the counterclaim;
(B)
a description of damages or offsets sought, including the
amount and method used to calculate those damages or offsets; and
(C)
the legal theory supporting the counterclaim.
(c)
In addition to the mandatory contents of the notice of
counterclaim required by subsection (b) of this section, the unit may submit
supporting documentation or other tangible evidence to facilitate the contractor's
evaluation of the unit's counterclaim.
(d)
The notice of counterclaim shall be delivered to the contractor
no later than 90 days after the unit receives the contractor's notice of claim.
(e)
Nothing herein precludes the unit from initiating a lawsuit
for damages against the contractor in a court of competent jurisdiction.
§392.28.Request for Voluntary Disclosure of Additional Information.
(a)
Upon the filing of a claim or counterclaim, parties may
request to review and copy information in the possession or custody or subject
to the control of the other party that pertains to the contract claimed to
have been breached, including, without limitation:
(1)
accounting records;
(2)
correspondence, including, without limitation, correspondence
between the unit of state government and outside consultants it utilized in
preparing its solicitation or any part thereof or in administering the contract,
and correspondence between the contractor and its subcontractors, materialmen,
and vendors;
(3)
schedules;
(4)
the parties' internal memoranda; and
(5)
documents created by the contractor in preparing its offer
to the unit and documents created by the unit in analyzing the offers it received
in response to a solicitation.
(b)
Subsection (a) of this section applies to all information
in the parties' possession regardless of the manner in which it is recorded,
including, without limitation, paper and electronic media.
(c)
The contractor and the unit may seek additional information
directly from third parties, including, without limitation, the unit's third-party
consultants and the contractor's subcontractors.
(d)
Nothing in this section requires any party to disclose
the requested information or any matter that asserts is privileged under Texas
law.
(e)
Material submitted pursuant to this section and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
§392.29.Duty to Negotiate.
The parties shall negotiate in accordance with the timetable set forth
in §392.30 of this subchapter (relating to Timetable) to attempt to resolve
all claims and counterclaims. No party is obligated to settle with the other
party as a result of the negotiation.
§392.30.Timetable.
(a)
Following receipt of a contractor's notice of claim, the
chief administrative officer of the unit of state government or other designated
representative shall review the contractor's claim(s) and the unit of state
government's counterclaim(s), if any, and initiate negotiations with the contractor
to attempt to resolve the claim(s) and counterclaim(s).
(b)
Subject to subsection (c) of this section, the parties
shall begin negotiations within a reasonable period of time, not to exceed
60 days following the later of:
(1)
the date of termination of the contract;
(2)
the completion date, or substantial completion date in
the case of construction projects, in the original contract; or
(3)
the date the unit receives the contractor's notice of claim.
(c)
The unit may delay negotiations until after the 180th day
after the date of the event giving rise to the claim of breach of contract
by:
(1)
delivering written notice to the contractor that the commencement
of negotiations will be delayed; and
(2)
delivering written notice to the contractor when the unit
is ready to begin negotiations.
(d)
The parties may conduct negotiations according to an agreed
schedule as long as they begin negotiations no later than the deadlines set
forth in subsections (b) or (c) of this section, whichever is applicable.
(e)
Subject to subsection (f) of this section, the parties
shall complete the negotiations that are required by this subchapter as a
prerequisite to a contractor's request for contested case hearing no later
than 270 days after the unit of state government receives the contractor's
notice of claim.
(f)
The parties may agree in writing to extend the time for
negotiations on or before the 270th day after the unit receives the contractor's
notice of claim. The agreement shall be signed by representatives of the parties
with authority to bind each respective party and shall provide for the extension
of the statutory negotiation period until a date certain. The parties may
enter into a series of written extension agreements that comply with the requirements
of this section.
(g)
The contractor may request a contested case hearing before
SOAH pursuant to §392.35. of this subchapter (relating to Request for
Contested Case Hearing) after the 270th day after the unit receives the contractor's
notice of claim, or the expiration of any extension agreed to under subsection
(f) of this section.
(h)
The parties may agree to mediate the dispute at any time
before the 270th day after the unit receives the contractor's notice of claim
or before the expiration of any extension agreed to by the parties pursuant
to subsection (f) of this section. The mediation shall be governed by Division
3 of this subchapter.
(i)
Nothing in this section is intended to prevent the parties
from agreeing to commence negotiations earlier than the deadlines established
in subsections (b) and (c) of this section, or from continuing or resuming
negotiations after the contractor requests a contested case hearing before
SOAH.
§392.31.Conduct of Negotiation.
(a)
Negotiation is a consensual bargaining process in which
the parties attempt to resolve a claim and counterclaim. A negotiation under
this division may be conducted by any method, technique, or procedure authorized
under the contract or agreed upon by the parties, including, without limitation,
negotiation in person, by telephone, by correspondence, by video conference,
or by any other method that permits the parties to identify their respective
positions, discuss their respective differences, confer with their respective
advisers, exchange offers of settlement, and settle.
(b)
The parties may conduct negotiations with the assistance
of one or more neutral third parties. If the parties choose to mediate their
dispute, the mediation shall be conducted in accordance with Division 3 of
this subchapter. Parties may choose an assisted negotiation process other
than mediation.
(c)
To facilitate the meaningful evaluation and negotiation
of the claim(s) and any counterclaim(s), the parties may exchange relevant
documents that support their respective claims, defenses, counterclaims or
positions.
(d)
Material submitted pursuant to this section and claimed
to be confidential by the contractor shall be handled pursuant to the requirements
of the Public Information Act.
§392.32.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed prior
to, or at the beginning of, negotiations. To the extent possible, the parties
shall select negotiators who are knowledgeable about the subject matter of
the dispute, who are in a position to reach agreement, and who can credibly
recommend approval of an agreement.
§392.33.Settlement Agreement.
(a)
A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(b)
To be enforceable, a settlement agreement must be in writing
and signed by representatives of the contractor and the unit of state government
who have authority to bind each respective party.
(c)
A partial settlement does not waive a parties' rights under
the Government Code Chapter 2260 as to the parts of the claims or counterclaims
that are not resolved.
§392.34.Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible
for its own costs incurred in connection with a negotiation, including, without
limitation, the costs of attorneys', consultants' and experts' fees and expenses.
§392.35.Request for Contested Case Hearing.
(a)
If a claim for breach of contract is not resolved in its
entirety through negotiation, mediation or other assisted negotiation process
in accordance with this subchapter on or before the 270th day after the unit
of state government receives the notice of claim, or after the expiration
of any extension agreed to by the parties pursuant to §392.30(f) of this
subchapter (relating to Timetable), the contractor may file a request with
the unit of state government for a contested case hearing before SOAH.
(b)
A request for a contested case hearing shall state the
legal and factual basis for the claim, and shall be delivered to the chief
administrative officer of the unit or other officer designated in the contract
to receive notice within a reasonable time after the 270th day or the expiration
of any written extension agreed to pursuant to §392.30(f) of this subchapter
(relating to Timetable).
(c)
The unit shall forward the contractor's request for contested
case hearing to SOAH within a reasonable period of time, not to exceed thirty
days, after receipt of the request.
(d)
The parties may agree to submit the case to SOAH before
the 270th day after the notice of claim is received by the unit if they have
achieved a partial resolution of the claim or if an impasse has been reached
in the negotiations and proceeding to a contested case hearing would serve
the interests of justice.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed
with the Office of the Secretary of State on April 25, 2003.
TRD-200302624
Steve Aragón
General Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: June 8, 2003
For further information, please call: (512) 424-6576
:three
] styles of [
zylonite
]
frames
(at least one style of each type of frame material)
appropriate
for male and female in a choice of three colors
for each frame style
.
Chapter 363.
COMPREHENSIVE CARE PROGRAM
§29.105
] of this title (relating to Optometrist Services), the
benefits and limitations applicable to optometric services available through
the Medicaid EPSDT Program are as follows.
(I)
Prescriptions for contact
lenses must be authorized by the department or its designee in writing before
dispensing. Prior authorization is based on the provider's written documentation
that contact lenses are the only means of correcting the vision defect.]
(II)
Prescriptions for plastic
lenses must include the provider's written justification of the medical necessity
for the plastic lenses on the claim form sent to the department or its designee.]
unless the provider determines
that plastic lenses are medically necessary
]. Lenses meet federal and
state specifications and all standards of the American standard prescription
requirements for first quality glass
,
[
and
] plastic
, or polycarbonate
lenses dress eyewear.
three
]
styles of [
zylonite
] frames
(at least one style of each type
of frame material)
appropriate for male or female, [
children or
adults,
] in a choice of three colors
for each frame style
.
29
], Subchapter A
, Division 1,
of this title (relating to Medicaid Procedures for Providers)
and Chapter
354
[
29
], Subchapter
A, Division 11,
[
L
] of this title (relating to General Administration).
Besides the claims information requirements established in
§354.1001
[
§29.1
] of this title (relating to Claim Information
Requirements), the following information is required for claims for optometric
services:
§33.403
] of this title (relating to Specifications
for Eyewear);
§33.403
] of this
title (relating to Specifications for Eyewear). A signed patient certification
satisfies this requirement for claims the provider submitted electronically;
department
] or its designee show that less than 24 months have elapsed since the
date of the original nonprosthetic eyewear service, then:
§33.402(3)(B)(i)
or (ii)(II)
] of this title (relating to Benefits and Limitations)).
If the original eyewear has been lost or damaged beyond repair, the recipient
must sign the claim form or a patient certification if the provider submits
claims electronically; and
(8)
prescriptions for plastic
lenses, which must include a provider's written justification of the medical
necessity for the plastic lenses on the claim form.]
Chapter 392.
PROCUREMENTS BY HEALTH AND HUMAN SERVICES COMMISSION
2.
NEGOTIATION
3.
MEDIATION