Part 2. TEXAS ETHICS COMMISSION

Chapter 18. GENERAL RULES CONCERNING REPORTS

1 TAC §18.9

The Texas Ethics Commission proposes an amendment to §18.9, relating to corrected reports by deleting subsection (c).

Section 18.9 relates to instances in which a corrected report is not considered late for purposes of a late fine. Section 18.9(c) was superseded by statutory changes made by H.B. 1800, 79th Legislature, Regular Session.

David A. Reisman, Executive Director, has determined that for each year of the first five years that the rule is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the rule as proposed. Mr. Reisman has also determined that the rule will have no local employment impact.

Mr. Reisman has also determined that for each year of the first five years the rule is in effect, the anticipated public benefit will be clarity in what is required by the law.

Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because the rule does not apply to single businesses.

Mr. Reisman has further determined that there are no economic costs to persons required to comply with the rule.

The Texas Ethics Commission invites comments on the proposed rule from any member of the public. A written statement should be mailed or delivered to David A. Reisman, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed rule. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.

The amendment is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.

The amendment affects §571.0771 of the Government Code and §305.033 of the Government Code.

§18.9.Corrected Reports.

(a) A filer may correct a report filed with the commission or a local filing authority at any time.

(b) A corrected report must clearly identify how the corrected report is different from the report being corrected.

[ (c) A report that is corrected is not considered late for purposes of any late fine if: ]

[ (1) the original report was filed by the applicable filing deadline; ]

[ (2) the original report substantially complies with the applicable law; ]

[ (3) the corrected report is filed not later than the 14th business day after the date the person learns that the report as originally filed is inaccurate or incomplete; and ]

[ (4) the corrected report is complete and accurate. ]

(c) [ (d) ] A filer who files a corrected report must submit an affidavit identifying the information that was corrected.

(d) [ (e) ] This section does not apply to a corrected report filed under Section 571.069, Government Code, or a corrected report filed in response to a sworn complaint.

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 February 3, 2006.

TRD-200600586

David A. Reisman

Executive Director

Texas Ethics Commission

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5800

1 TAC §18.11

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Ethics Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The Texas Ethics Commission proposes the repeal of §18.11, which defines "substantial compliance" regarding corrected reports.

Section 18.11 defines substantial compliance as reports which contain errors which are minor in context. Section 18.11 is no longer needed because it was superseded by statutory changes. H.B. 1800, 79th Legislature, Regular Session, amended chapter 571 of the Government Code to define "substantial compliance."

David A. Reisman, Executive Director, has determined that for each year of the first five years that the repeal is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the repeal as proposed. Mr. Reisman has also determined that the repeal will have no local employment impact.

Mr. Reisman has also determined that for each year of the first five years the repeal is in effect, the anticipated public benefit will be clarity in what is required by the law.

Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because this rule does not apply to single businesses.

Mr. Reisman has further determined that there are no economic costs to persons required to comply with the repeal as proposed.

The Texas Ethics Commission invites comments on the proposed repeal of §18.11 from any member of the public. A written statement should be mailed or delivered to David A. Reisman, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed repeal may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed repeal. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.

The repeal is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.

The repeal affects §571.0771 of the Government Code.

§18.11.Substantial Compliance.

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 February 6, 2006.

TRD-200600619

David A. Reisman

Executive Director

Texas Ethics Commission

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5800

1 TAC §24.13

The Texas Ethics Commission proposes an amendment to §24.13, relating to the reporting requirements of certain expenditures by a general-purpose committee by deleting subsection (d).

Section 24.13 requires a report filed by a general-purpose committee to identify expenditures made by a corporation. Section 24.13(d) excludes from the reporting requirement certain corporate expenditures. Section 24.13(d) was superseded by statutory changes made by H.B. 1606, 78th Legislature, Regular Session. The bill repealed section 253.100(d) of the Election Code, which is mirrored in Ethics Commission Rule §24.13(d).

David A. Reisman, Executive Director, has determined that for each year of the first five years that the amendment is in effect there will be no fiscal implication for the state and no fiscal implication for local government as a result of enforcing or administering the repeal as proposed. Mr. Reisman has also determined that the amendment will have no local employment impact.

Mr. Reisman has also determined that for each year of the first five years the amendment is in effect, the anticipated public benefit will be clarity in what is required by the law.

Mr. Reisman has also determined there will be no direct adverse effect on small businesses or micro-businesses because this rule does not apply to single businesses.

Mr. Reisman has further determined that there are no economic costs to persons required to comply with the amendment as proposed.

The Texas Ethics Commission invites comments on the proposed amendment to §24.13 from any member of the public. A written statement should be mailed or delivered to David A. Reisman, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed repeal may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed repeal. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.

The amendment is proposed under Government Code, Chapter 571, §571.062, which authorizes the commission to adopt rules concerning the laws administered and enforced by the commission.

The proposed amendment affects section 253.100 of the Election Code.

§24.13.Expenditures for a General-Purpose Committee.

(a) A corporation, acting alone or with one or more other corporations, may make one or more political expenditures to finance the establishment or administration of a general-purpose committee.

(b) A corporation may make political expenditures to finance the solicitation of political contributions to a general-purpose committee assisted under subsection (a) of this section from the stockholders, employees, or families of stockholders or employees of one or more corporations.

(c) A labor organization may engage in activity authorized for a corporation by subsections (a) and (b) of this section. For purposes of this section, the members of a labor organization are considered to be corporate stockholders.

[ (d) An expenditure under this section is not reportable by the general-purpose committee as a political contribution.]

(d) [ (e) ] A political committee assisted by a corporation or labor organization under this section may not make a political contribution or political expenditure in whole or part from money that is known by a member or officer of the political committee to be dues, fees, or other money required as a condition of employment by a corporation or condition of membership in a labor organization.

(e) [ (f) ] A corporation or labor organization or a political committee assisted by a corporation under this section may not use or threaten to use physical force, job discrimination, or financial reprisal to obtain money or any other thing of value to be used to influence the result of an election or to assist an officeholder.

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 February 3, 2006.

TRD-200600588

David A. Reisman

Executive Director

Texas Ethics Commission

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5800

1 TAC §50.1

The Texas Ethics Commission proposes an amendment to §50.1, to set the legislative per diem as required by the Texas Constitution, Article III, §24a. This section sets the per diem for members of the legislature and the lieutenant governor at $132 for each day during the regular session and any special session.

David A. Reisman, Executive Director, has determined that for each odd numbered year of the first five years this rule is in effect there will be a fiscal implication of $101,920 for the state and no fiscal implication for local government as a result of enforcing or administering this rule. This amount may increase if any special sessions are called.

Mr. Reisman also has determined that for each year of the first five years this rule is in effect the public benefit expected as a result of adoption of the proposed rule is a determination, in compliance with the Texas Constitution, of the per diem entitled to be received by each member of the legislature and the lieutenant governor under the Texas Constitution, Article III, §24, and Article IV, §17, during the regular session and any special session. There is no economic cost to persons required to comply with the rule as amended. Mr. Reisman has also determined that this rule will have no local employment impact.

The Texas Ethics Commission invites comments on the proposed rule from any member of the public. A written statement should be mailed or delivered to David A. Reisman, Texas Ethics Commission, P.O. Box 12070, Austin, Texas 78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to offer spoken comments to the commission concerning the proposed rule may do so at any commission meeting during the agenda item "Communication to the Commission from the Public" and during the public comment period at a commission meeting when the commission considers final adoption of the proposed rule. Information concerning the date, time, and location of commission meetings is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.

This amendment is proposed under the Texas Constitution, Article III, §24a, and the Government Code, Chapter 571, §571.062.

The amended section affects the Texas Constitution, Article III, §24, Article III, §24a, and Article IV, §17.

§50.1.Legislative Per Diem.

(a) The legislative per diem is $132 [ $128 ]. The per diem is intended to be paid to each member of the legislature and the lieutenant governor for each day during the regular session and for each day during any special session in 2006 [ 2005 ].

(b) This rule shall be applied retroactively to ensure payment of the $132 [ $128 ] per diem for 2006 [ 2005 ].

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 February 3, 2006.

TRD-200600585

David A. Reisman

Executive Director

Texas Ethics Commission

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5800

Chapter 81. ELECTIONS

Subchapter C. VOTING SYSTEMS

The Office of the Secretary of State, Elections Division, proposes to repeal §§81.44, 81.54, and 81.56, concerning Voting Systems. Section 81.55, concerning accessible voting systems, is proposed for amendment.

Section 81.44, concerns punch-card ballot voting systems. Pursuant to the passage of House Bill 1549 of the 78th Legislative session, the use of a punch-card ballot or similar form of tabulating card is now prohibited.

Section 81.54 concerns electronic lever-type machines, and now is incompatible with current precinct counters.

Some provisions of §81.55 will no longer apply after the repeal of Section 122.0011 of the Texas Election Code, January 1, 2006. Accessibility in voting systems has been established by federal law in the Help America Vote Act of 2002 (H.R. 3295), which would preempt state law regarding voter accessibility.

Section 81.56 concerns authorized alternative methods of providing a secret ballot to persons with physical disabilities. Because of the repeal of Section 122.0011 of the Texas Election Code on January 1, 2006, §81.56 will become obsolete. Accessibility in voting systems has been established by federal law in the Help America Vote Act of 2002 (H.R. 3295), which would preempt state law regarding voter accessibility.

Ann McGeehan, Director of Elections, has determined that for the first five-year period the repeals and amendments are in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the repeals and amendments.

Ms. McGeehan has determined also that for each year of the first five years the repeals and amendments are in effect, the public benefit anticipated as a result of enforcing the repeals and amendments will be to eliminate superceded or outdated rules, update a current rule to reflect federal changes to accessible voting systems, and to make elections more efficient and understandable. There will be no effect on small or micro-businesses. There is no anticipated economic cost to persons who are required to comply with the amendments or repeals.

Written comments on the repeals and amendments may be submitted to Ann McGeehan, Director of Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas 78711-2060.

1 TAC §81.44, 81.54, 81.56

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the Office of the Secretary of State, Texas Register Division, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)

The repeals are proposed under the Texas Election Code, §31.003, which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws.

The repeals implement the Texas Election Code §31.003.

§81.44.Punch-Card Ballots.

§81.54.Use of Direct Recording Electronic Voting Systems.

§81.56.Authorized Alternative Methods of Providing a Secret Ballot to Persons with Physical Disabilities.

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 February 6, 2006.

TRD-200600620

Ann McGeehan

Director of Elections

Office of the Secretary of State

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5650

1 TAC §81.55

The amendments are proposed under the Texas Election Code, §31.003, which provides the Office of the Secretary of State with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws.

The amendments implement the Texas Election Code §31.003.

§81.55.Adoption of Accessible Voting Systems [ under §122.0011 of the Texas Election Code ].

[ Adoption of Accessible Voting System after September 1, 1999 ]

[ (1) The requirement of §122.0011 of the Texas Election Code (the "Code") to implement a practical and effective means of providing a secret ballot to persons with physical disabilities is triggered when a political subdivision acquires a new voting system by lease or purchase after September 1, 1999.]

[ (2) Only the acquisition of a new voting system (or substantial modification of an existing voting system) that will change voters' interaction with the ballot at the polling sites triggers §122.0011 of the Code. Any change made to a voting system at a central counting station or early voting ballot board that does not directly affect voters does not trigger the law.]

[ (3) If a political subdivision acquires a new voting system, the system must be accessible to persons with physical disabilities and provide the voter with a practical and effective means to cast a secret ballot.]

[ (4) ] A political subdivision may use more than one type of voting system in a single polling place in order to provide [ for the limited purpose of providing ] a person with physical disabilities with a method of casting a secret ballot.

[ (5) The rule does not require that a newly acquired voting system be placed in every early voting and election day polling site; however, a newly acquired voting system must be accessible in each polling site it is used.]

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 February 6, 2006.

TRD-200600621

Ann McGeehan

Director of Elections

Office of the Secretary of State

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 463-5650

Chapter 358. MEDICAID ELIGIBILITY

Subchapter I. MEDICAID BUY-IN PROGRAM

1 TAC §§358.801, 358.803, 358.805, 358.807, 358.809, 358.811, 358.813, 358.815, 358.817, 358.819

The Texas Health and Human Services Commission (HHSC) proposes new Subchapter I, Medicaid Buy-In (MBI) Program in Chapter 358, Medicaid Eligibility, new §§358.801, 358.803, 358.805, 358.807, 358.809, 358.811, 358.813, 358.815, 358.817 and 358.819.

Background and Justification

Section 531.02444 of the Texas Government Code, as amended by the 79th Texas Legislature during its regular session, authorizes the Texas HHSC to implement a MBI and provide Medicaid benefits to working persons with disabilities under the option available to states that is explained in section 1902(a)(10)(A)(ii)(XIII) of the Social Security Act (42 USC §1396a(a)(10(A)(ii)(XIII)). HHSC proposes to amend its Medicaid Eligibility chapter by adding a new Subchapter I to Title 1, Chapter 358 of the Texas Administrative Code. The purpose of the amendment is to adopt rules for MBI.

Section-by-Section Summary

Section 358.801, Overview and Purpose, provides a general description of the MBI program. The requirements for applying and providing information are provided in §358.803. The eligibility requirements related to citizenship, immigration status and residency are contained in §358.805. The disability requirement for clients is described in §358.807, Disability, and the work requirement is found in §358.809, Work. Section 358.811, Income, explains what income is considered. §358.813, Resources, describes the resource limit as well as what is countable. The deeming policy for both of income and resources is explained in §358.815. Section 358.817 implements the monthly cost-sharing requirements for all months of eligibility. Finally, §358.819, Medical Effective Date, describes the eligibility effective date.

Fiscal Note

Tom Suehs, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the proposed rules are in effect, there will be a fiscal impact of $35.7 million to state government. The proposed rules will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.

Small and Micro-business Impact Analysis

Mr. Suehs has also determined that there will be no effect on small businesses or micro businesses to comply with the proposal, as they will not be required to alter their business practices as a result of the rule. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.

Public Benefit

Linda Franco, Associate Commissioner for the Office of Family Services, has determined that for each year of the first five-years the proposed rules are in effect, the public will benefit from the adoption of the proposed rules. The anticipated public benefit, as a result of enforcing the proposed rules, will be the increased availability of medical assistance for working persons with disabilities, regardless of age.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas 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 a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

Public Comment

Written comments on the proposal may be submitted to Lesa Ledbetter at H-600, P.O. Box 85200, Austin, TX 78708, by fax to (512) 491-1953, or by e-mail to lesa.ledbetter@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register .

Public Hearing

A public hearing is scheduled for March 7, 2006 from 9:00 a.m. to 10:30 a.m. (central time) at Braker Building H, 11209 Metric Avenue, Austin, TX. Persons requiring further information, special assistance, or accommodations should contact Kyna Belcher at (512) 491-1884.

Statutory Authority

The new rules are proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; the 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.

The proposed new rules affect the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§358.801.Overview and Purpose.

(a) This subchapter governs the eligibility requirements for the Medicaid Buy-In Program (MBI), which is authorized under §531.02444 of the Texas Government Code, and which provides Medicaid benefits under the option explained in §1902(a)(10)(A)(ii)(XII) of the Social Security Act (42 U.S.C. §1396a(a)(10)(A)(ii)(XII)). All references in this subchapter to MBI mean the Medicaid Buy-In Program.

(b) MBI is administered by the Texas Health and Human Services Commission (HHSC). All references in this subchapter to HHSC mean the Texas Health and Human Services Commission.

(c) MBI provides Medicaid benefits to working persons with disabilities, regardless of age, who apply for Medicaid and meet the requirements explained in this subchapter.

(d) The provisions of this subchapter apply only to MBI, and to the extent of conflict, the provisions of this subchapter control over any other provisions in this chapter.

§358.803.Applying and Providing Information.

(a) A person applies for MBI by completing an application for MBI and submitting it to HHSC. The date of receipt by HHSC is the application filing date, and thus establishes the application month explained in §358.819 of this subchapter (relating to Medical Effective Date).

(b) HHSC notifies MBI recipients in writing when it is time to re-determine the recipient's eligibility. This usually occurs once per year, although HHSC may require a person to re-apply sooner whenever HHSC determines that a special review of the person's eligibility is appropriate. An MBI recipient is required to re-apply when HHSC sends written notice of the requirement to the recipient's case address of record. The written notice explains the deadline to re-apply. If an MBI recipient fails to re-apply by the deadline stated in the written notice, HHSC may terminate the recipient's MBI eligibility.

(c) HHSC sends in writing to the person's case address of record the eligibility decision on an application, re-application, or reported change. If the person disagrees, the person has the right to a fair hearing appeal as explained in chapter 357 of this title (relating to Medical Fair Hearings).

(d) An applicant for MBI must provide HHSC with all requested documentation and information that HHSC advises is necessary to determine the applicant's eligibility. If the applicant fails or refuses to provide requested information by the date specified in a written request from HHSC, HHSC may deny the application for failure to furnish information. When this occurs but the person later provides the requested information, the date that the requested information is provided to HHSC becomes the application filing date explained in subsection (a) of this section.

(e) A person who applies for or is receiving MBI is required to report to HHSC within 10 calendar days any information that may impact the person's eligibility. If a person fails to comply with the requirements of this subsection, HHSC may re-determine the person's eligibility as of the date the information should have been reported to HHSC.

§358.805.Citizenship, Immigration Status, and Residency.

(a) Citizenship and Immigration Status. To be eligible for MBI, a person must be:

(1) A citizen of the United States (U.S.); or

(2) An alien who entered the U.S. before August 22, 1996, who has lived in the U.S. continuously since entry, and who meets the definition of a qualified alien at 8 U.S.C. §1641(b) or (c); or

(3) An alien who entered the U.S. on or after August 22, 1996, who has lived in the U.S. continuously since entry, and who meets the definition of a qualified alien at 8 U.S.C. §§1612(b) and 1613.

(b) Residency. To be eligible for MBI, a person must be a Texas resident. Texas residency is established if the person resides in Texas, declares residency in Texas, and declares the intent to remain in Texas.

§358.807.Disability.

To be eligible for MBI, a person must be disabled as defined by the Social Security Administration (SSA) for purposes of the federal Supplemental Security Income program (SSI), as explained in 20 CFR §§416.905 and 416.906, except the requirement that the person be unable to engage in any substantial gainful activity does not apply.

§358.809.Work.

To be eligible for MBI, a person must be working and earning enough each calendar quarter for that quarter to be an "SSA Qualifying Quarter." An SSA Qualifying Quarter is a three-month period that ends on March 31, June 30, September 30, and December 31 of each calendar year and during which the person's reported earnings and FICA contributions are enough for SSA to give the person Social Security wage credits. To establish initial eligibility under this section, a person must demonstrate completion of at least one SSA Qualifying Quarter.

§358.811.Income.

(a) Earned income.

(1) To be eligible for MBI, a person's monthly countable earned income must be less than 250 percent of the federal poverty level.

(2) Countable earned income means earned income for SSI purposes minus all applicable exclusions and exemptions, as explained in 20 CFR §§416.1110 - 416.1112.

(b) Unearned income is entirely excluded under this section, but is considered in the determination of a person's monthly premium amount, as explained in §358.817 of this subchapter (relating to Cost Sharing).

§358.813.Resources.

(a) To establish and maintain eligibility for MBI, a person's countable resources must be equal to or less than $3,000 plus the amount of the SSI resource limit for an individual that is explained in 20 CFR §416.1205. Countable resources means resources for SSI purposes as defined in 20 CFR §416.1205, minus all applicable exemptions and exclusions explained in 20 CFR §§416.1207 - 416.1239.

(b) In addition to the exemptions and exclusions explained in subsection (a) of this section, the following are not countable resources under this section:

(1) Independence Accounts

(A) An Independence Account (IA) is a segregated account in a financial institution, the purpose of which is to save for future health care and work-related expenses to increase an individual's independence and employment potential.

(B) Only a person's own earned income may be deposited into an IA, and amounts deposited cannot exceed 50 percent of the person's gross earnings. If for any SSA Qualifying Quarter a person deposits more than 50 percent of the person's gross earnings into an account that is designated as an IA, the account loses its IA designation and the funds in the account become a countable resource for the 12-month period beginning with the first month after the SSA Qualifying Quarter.

(C) Only health care or work-related expenses may be paid from an IA. For any SSA Qualifying Quarter, if funds in an IA account are used for any other purpose, the account loses its IA designation and the funds in the account become a countable resource for the 12-month period beginning with the first month after the SSA Qualifying Quarter.

(2) Retirement related tax-sheltered accounts such as IRAs, 401(k)s, TSAs, and KEOUGHs that comply with IRS regulations.

§358.815.Deeming of Income and Resources.

(a) For purposes of MBI eligibility, each person is considered a household of one.

(b) If a person lives with a spouse, the person and spouse are each considered a household of one. The assets of each spouse are considered only with respect to that spouse. In the case of assets owned jointly by both spouses, one half is considered with respect to each spouse.

(c) If a person is a minor and lives with his or her parents, the assets of the parents are not considered with respect to the eligibility of the minor.

§358.817.Cost Sharing.

(a) As a condition of establishing initial MBI eligibility and to remain eligible, a person is required to pay monthly premiums, as explained in this section, based on the amount of the person's countable earned and countable unearned income.

(b) For purposes of this section, countable earned income is as defined in 20 CFR §§416.1110 and 416.1111, minus:

(1) earned income that is excluded by federal law, as explained in 20 CFR §416.1112(b); and

(2) mandatory payroll deductions for federal income tax, FICA, and retirement withholding.

(c) For purposes of this section, countable unearned income means unearned income as defined in 20 CFR §§416.1120 - 416.1123, minus the exclusions and exemptions explained in 20 CFR §416.1124.

(d) The monthly premium amount equals:

(1) the amount of a person's countable unearned income for the month that exceeds the Federal Benefit Rate for SSI for an individual; plus

(2) a flat fee amount, not to exceed $50 that is based on the amount of the person's countable earned income for the month whenever it exceeds 150 percent of the Federal Poverty Limit (FPL).

(e) Payment of monthly premiums to establish initial eligibility. The initial eligibility period begins with the earliest date of potential eligibility and continues through the end of the month after which HHSC sends to the person a written notice of the person's potential eligibility. This subsection explains the procedures that are followed and the requirements the person must meet in order for the person to establish eligibility under this section for any or all of the months within the initial eligibility period. The steps are as follows:

(1) HHSC determines that the person is potentially eligible because the person meets all eligibility requirements for MBI other than the requirements of this section;

(2) HHSC sends to the person a written notice of the person's potential eligibility (the notice). The notice explains the earliest month of potential eligibility and the amount of each of the monthly premiums due for each month in the initial eligibility period;

(3) The notice also includes:

(A) the total amount in monthly premiums that must be paid to obtain MBI coverage for the entire initial eligibility period; and

(B) the deadline by which payment must be submitted.

(4) The person chooses whether to pay the monthly premiums for either the entire initial eligibility period or for only a portion of the initial eligibility period (according to the months during which the person desires MBI coverage);

(5) The person submits to HHSC by the deadline stated in the notice either the total amount due as explained in the notice, or a lesser amount if the person is not seeking coverage for the entire initial eligibility period.

(6) If the person submits payment of less than the total amount due to obtain MBI coverage for the entire initial eligibility period, HHSC applies the amount submitted first to satisfy the monthly premium for the month following the month of the notice, then to each prior month of potential eligibility, in reverse chronological order. After this, in the case of any amount remaining that is less than the premium for a full month's coverage, HHSC refunds that amount to the person;

(7) HHSC notifies the person of MBI eligibility and of the beginning date of MBI coverage, based on the amount submitted by the person under paragraph (5) of this subsection.

(8) If no amount is submitted by the deadline stated in the notice, or if the amount submitted is less than at least one month's premium such that it is refunded to the person as explained in paragraph (6) of this subsection, HHSC denies the person MBI eligibility. A person denied under this paragraph is required to file a new application for MBI before eligibility can be established.

(f) Payment of monthly premiums after initial eligibility. Monthly premiums after a person establishes initial eligibility under subsection (e) of this section are due and payable to HHSC no later than the last calendar day of each month, and are applied to the following month's eligibility and coverage of MBI benefits. If a monthly premium payment that is due is not received by HHSC by the end of the month, after written notice, HHSC may terminate the person's MBI eligibility.

§358.819.Medical Effective Date.

Beginning with the three-months before the application month, the eligibility effective date for MBI coverage is the first day of the first month in which a person meets all eligibility criteria, including the timely payment of monthly premiums as explained in §358.817 of this subchapter (relating to Cost Sharing).

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 January 30, 2006.

TRD-200600487

Steve Aragón

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 19, 2006

For further information, please call: (512) 424-6900