Part 1.
DEPARTMENT OF STATE HEALTH SERVICES
Chapter 39.
PRIMARY HEALTH CARE SERVICES PROGRAM
The Executive Commissioner of the Health and Human Services Commission,
on behalf of the Department of State Health Services (department), proposes
the repeal of §§39.1 - 39.22 and new §§39.1 - 39.11, concerning
the provision of primary health care services in this state.
BACKGROUND AND PURPOSE
The repeal and new sections are necessary to comply with Health and Safety
Code, Chapter 31, which directs the department to establish a program to provide
primary health care services to eligible individuals. The Primary Health Care
Services Program provides access to basic health care services for individuals
whose incomes do not exceed 150% of the Federal Poverty Level residing in
Texas who are unable to access the same care through other funding sources
or programs.
Government Code, §2001.039, requires that each state agency review
and consider for re-adoption each rule adopted by that agency pursuant to
the Government Code, Chapter 2001 (Administrative Procedure Act). Sections
39.1 - 39.22 have been reviewed, and the department has determined that reasons
for adopting the sections continue to exist because rules on this subject
are needed.
Since legal, policy, and operational issues have changed significantly
since the rules were adopted in 1986, the department determined that review
and revision of the subchapter could be accomplished most effectively by proposing
the repeal of the existing sections in the subchapter and proposing new language
to remove outdated information and replace it with current information in
a better-organized manner.
SECTION-BY-SECTION SUMMARY
Section 39.1 introduces the subchapter and states a purpose and mission
for the provision of primary health care services as prescribed by Health
and Safety Code, Chapter 31.
Health and Safety Code, §31.002, authorizes the department to define
terms as necessary to administer the chapter. Section 39.2 defines specific
terms used throughout the subchapter that pertain to the delivery of primary
health care services by the department.
Health and Safety Code, §31.003 and §31.005, direct the department
to adopt rules to guide the effective and efficient provision of services.
Section 39.3 includes general requirements for the provision of primary health
care services and a prioritization of the types of services that, at a minimum,
must be provided to recipients because the department faces budgetary limitations.
These fundamental services consist of diagnosis and treatment, emergency services,
family planning services, preventive health services, health education, and
diagnostic services. The requirements also include criteria, such as geographic
area, socioeconomic status and available community resources, to guide where
and to whom services should be provided, based upon unmet needs. If the department
determines that existing community resources are unavailable or unable to
meet the primary health care needs of the population in need, the department
may deliver services directly to eligible individuals. Section 39.3 also clarifies
that recipients eligible for Medicare Part D must receive prescription drug
benefits according to Medicare regulations if the provider offers supplemental
prescription drug benefits as part of the department's primary health care
program.
As required by Health and Safety Code, §31.004 and §31.006, §39.4
outlines the process and requirements for the provision of contracts to providers
that deliver primary health care services. Services may be delivered through
a network of providers, directly by the department, or by a combination of
both to ensure recipients are able to receive necessary services. The department
must contract for services using a Request for Proposals process in accordance
with state law and department policy. The department may deny, modify, suspend
or terminate provider contracts for cause, and an applicant or current contractor
that is aggrieved in relation to the award of a contract may file a protest
in accordance with department policy.
Section 39.5 delineates the circumstance in which the department is obligated
to reimburse providers for contracted services rendered and the timeframe
in which providers can expect to receive payment.
Health and Safety Code, §31.007 and §31.008, require the department
to adopt rules relating to application procedures and eligibility criteria
for potential program recipients. Section 39.6 states an individual must be
in financial need and be a Texas resident in order to be eligible for program
services. Individuals found ineligible for services may reapply at any time.
The section also states that providers are required to assist applicants in
completing the application process, provide coverage if the applicant meets
eligibility criteria, determine if the applicant is eligible for Medicare
Part D coverage, and provide services to potentially-eligible individuals
with immediate medical needs. Although providers may collect co-payments from
eligible individuals receiving services, no one shall be denied services based
on an inability to pay, and pre-treatment deposits and/or payments are prohibited.
The section explains that providers that offer supplemental prescription drug
coverage as part of their primary health care program may reimburse eligible
recipients for co-payments made for medications under Medicare Part D upon
availability of funds.
Section 39.7 outlines the criteria necessary to maintain eligibility for
program services. Recipients must continue to be in financial need and reside
in Texas. Recipients are required to inform their providers of changes in
address, health insurance coverage, employment, income, and family composition
to ensure continued eligibility for services.
Health and Safety Code, Chapter 31, requires that primary health care services
must be provided, to the greatest extent possible, to low-income individuals
who are not eligible for similar services through other publicly-funded programs
and who do not have another source of support. In order to assure that the
department is the payer of last resort, §39.8 mandates coordination of
benefits between the department, providers of other benefits programs, and
person(s) who have a legal obligation to financially support the recipient.
Section 39.9 describes the terms under which services to recipients and
applicants may be denied, modified, suspended, or terminated as required by
Health and Safety Code, §31.009. Applicants who intentionally provide
false or incomplete information, recipients that are no longer eligible for
services, and recipients or other persons who have a legal obligation to support
a recipient that do not reimburse the department for services will receive
written notice of the denial, modification, suspension, or termination of
services and an opportunity for a fair hearing.
Section 39.10 establishes the process by which an appeal requested by a
recipient or applicant aggrieved by a program decision to deny, modify, suspend,
or terminate participation in program services will be conducted.
According to Health and Safety Code, §31.015, the department is required
to adopt rules relating to the information a provider shall report to the
department. Section 39.11 states that program review activities will be conducted
to ensure the delivery of appropriate services and evaluate the continued
need for services. The department will require providers to report on the
number of recipients served, demographic information about recipients, fiscal
and expenditure information, program accomplishments, and coordination of
benefits with other providers.
FISCAL NOTE
Cindy Jones, Ph.D., R.N., Manager, Preventive and Primary Care Unit, has
determined that for each year of the first five years the sections are in
effect, there will be no fiscal implications to state or local governments
as a result of administering the sections as proposed. The new sections are
not anticipated to have significant fiscal impact because the proposed rules
do not change current program structure and implementation.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
Dr. Jones has also determined that there will be no effect on small businesses
or micro-businesses required to comply with the sections as proposed, because
neither small businesses nor micro-businesses that are providers of primary
health care services will be required to alter their business practices in
order to comply with the sections. There are no anticipated economic costs
to persons who are required to comply with the sections as proposed. There
is no anticipated negative impact on local employment.
PUBLIC BENEFIT
Dr. Jones has also determined that for each year of the first five years
the sections are in effect, the public benefit anticipated as a result of
administering the sections will be continued access to basic health care services
for eligible, low-income Texas residents.
REGULATORY ANALYSIS
The department has determined that this proposal is not a "major environmental
rule" as defined by Government Code, §2001.0225. "Major environmental
rule" is defined to mean a rule the specific intent of which is to protect
the environment or reduce risk 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
The department has determined that the proposed sections do 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, do not constitute a taking
under Government Code, §2007.043.
PUBLIC COMMENT
Comments on the proposal may be submitted to Kim Roberts, Mail Code 1923,
Community Health Services Section, Department of State Health Services, 1100
West 49th Street, Austin, Texas 78756-3189 or by e-mail to kim.roberts@dshs.state.tx.us.
Comments will be accepted for 30 days following publication of the proposal
in the
Texas Register
.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Cathy Campbell,
certifies that the proposed rules have been reviewed by legal counsel and
found to be within the state agencies' authority to adopt.
Subchapter A. TEXAS PRIMARY HEALTH CARE SERVICES ACT PROGRAM RULES
25 TAC §§39.1 - 39.22
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the offices
of the Department of State Health Services or in the Texas Register office,
Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
STATUTORY AUTHORITY
The proposed repeals are authorized by Health and Safety Code, §31.004,
which requires the department to adopt rules necessary to administer the Texas
Primary Health Care Services Act; and Government Code, §531.0055, and
Health and Safety Code, §1001.075, which authorize the Executive Commissioner
of the Health and Human Services Commission to adopt rules and policies necessary
for the operation and provision of health and human services by the department
and for the administration of Health and Safety Code, Chapter 1001.
The proposed repeals affect Health and Safety Code, Chapter 31. Review
of the sections implements Government Code, §2001.039.
§39.1.Introduction.
§39.2.Definitions.
§39.3.General Program Requirements.
§39.4.Contracts and Written Agreements.
§39.5.Selection of Providers.
§39.6.Matching Share.
§39.7.Eligibility.
§39.8.Determination of Eligibility.
§39.9.Maintaining Eligibility.
§39.10.Co-payment for Primary Health Care Services.
§39.11.Primary Health Care Services Provided.
§39.12.Funds.
§39.13.Coordination of Benefits and Recovery of Costs.
§39.14.Denial/Modification/Suspension/Termination of Services.
§39.15.Payment for Services.
§39.16.Development and Evaluation of Program.
§39.17.Program Review.
§39.18.Appeals.
§39.19.Confidentiality.
§39.20.Gifts.
§39.21.Nondiscrimination.
§39.22.Federal Poverty Income Guidelines.
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 13, 2006.
TRD-200600720
Cathy Campbell
General Counsel
Department of State Health Services
Earliest possible date of adoption: March 26, 2006
For further information, please call: (512) 458-7111 x6972
25 TAC §§39.1 - 39.11
STATUTORY AUTHORITY
The proposed new sections are authorized by Health and Safety Code, §31.004,
which requires the department to adopt rules necessary to administer the Texas
Primary Health Care Services Act; and Government Code, §531.0055, and
Health and Safety Code, §1001.075, which authorize the Executive Commissioner
of the Health and Human Services Commission to adopt rules and policies necessary
for the operation and provision of health and human services by the department
and for the administration of Health and Safety Code, Chapter 1001.
The proposed new sections affect Health and Safety Code, Chapter 31. Review
of the sections implements Government Code, §2001.039.
§39.1.Introduction.
(a)
The purpose of these sections is to establish a system
of primary health care services for eligible individuals as prescribed by
Health and Safety Code, Chapter 31.
(b)
The Department of State Health Services seeks to fund local
projects that utilize early intervention and prevention of health problems.
These projects will utilize and integrate a plurality of existing primary
health care services and providers into a structured service delivery system.
Access to appropriate levels of health care can reduce health expenditures,
mortality, morbidity, and improve individual productivity, health status,
and economic growth.
§39.2.Definitions.
The following words and terms, when used in these sections, shall have
the following meanings, unless the context clearly indicates otherwise:
(1)
Act--The Texas Primary Health Care Services Act, Health
and Safety Code, Chapter 31.
(2)
Applicant--An individual and/or family applying to receive
primary health care services.
(3)
Commission--The Texas Health and Human Services Commission.
(4)
Commissioner--The Commissioner of Health.
(5)
Department--The Department of State Health Services.
(6)
Eligible individual--An eligible recipient of primary health
care services under the Act.
(7)
Other benefit--A benefit, other than a benefit provided
under the Act, to which an individual is entitled for payment of the costs
of primary health care services, including:
(A)
benefits available from:
(i)
an insurance policy, group health plan, or prepaid medical
care plan;
(ii)
Title XVIII or Title XIX of the Social Security Act;
(iii)
the Veterans Administration;
(iv)
the Civilian Health and Medical Program of the Uniformed
Services; and
(v)
workers compensation or any other compulsory employer's
insurance program;
(B)
a public program created by federal or state law, or by
an ordinance or rule of a municipality or political subdivision of the state,
except those benefits created by the establishment of a city or county hospital,
a joint city-county hospital, a county hospital authority, a hospital district,
or by the facilities of a publicly supported medical school; or
(C)
benefits resulting from a cause of action for medical,
facility, or medical transportation expenses, or a settlement or judgment
based on the cause of action, if the expenses are related to the need for
services provided by the Act.
(8)
Primary health care services--which include the following:
(A)
diagnosis and treatment;
(B)
emergency services;
(C)
family planning services;
(D)
preventive health services, including immunizations;
(E)
health education;
(F)
laboratory, x-ray, nuclear medicine, or other appropriate
diagnostic services;
(G)
nutrition services;
(H)
health screening;
(I)
home health care;
(J)
dental care;
(K)
transportation;
(L)
prescription drugs and devices and durable supplies;
(M)
environmental health services;
(N)
podiatry services; and
(O)
social services.
(9)
Program--The primary health care services program created
by the Act.
(10)
Provider--An entity that, through a grant or a contract
with the department, delivers primary health care services that are purchased
by the department for the purposes of the Act.
(11)
Recipient--An individual receiving primary health care
services under the Act.
(12)
Request for proposal--A solicitation providing guidance
and instructions issued by the department to entities interested in submitting
applications to provide primary health care services under the Act.
(13)
Services--Primary health care services.
(14)
Texas resident--An individual who is physically present
within the geographic boundaries of the state, and who:
(A)
intends to remain within the state, whether permanently
or for an indefinite period;
(B)
maintains an abode within the state (i.e., house or apartment,
not merely a post office box);
(C)
does not claim residency in any other state or country;
(D)
is under 18 years of age, and at least one of his/her parents,
managing conservator, or guardian is a bona fide resident of Texas;
(E)
is a person residing in Texas and his/her legally dependent
spouse is a bona fide resident of Texas; or
(F)
is an adult residing in Texas whose legal guardian is a
bona fide resident of Texas.
§39.3.General Program Requirements.
(a)
Because budgetary limitations exist, all program providers
shall offer at least the following priority services:
(1)
diagnosis and treatment;
(2)
emergency services;
(3)
family planning services;
(4)
preventive health services, including immunizations;
(5)
health education; and
(6)
laboratory, x-ray, nuclear medicine, or other appropriate
diagnostic services.
(b)
The department, through approved providers, shall provide
for the delivery of primary health care services to those populations that
demonstrate unmet needs due to the inaccessibility and/or unavailability of
primary health care services. Unmet needs may be determined by, but are not
limited to, the following criteria:
(1)
geographic area;
(2)
demography;
(3)
socioeconomic conditions;
(4)
cultural factors affecting the health status;
(5)
health problems; and
(6)
health resources available in the community.
(c)
The department may deliver services directly to eligible
individuals if existing private or public providers or other resources in
the service area are unavailable or unable to provide those services, as evidenced
by the applications received during the Request for Proposals process. The
department shall make determinations that providers or resources are unavailable
or unable to provide services in accordance with Health and Safety Code, §31.005.
(d)
Individuals eligible for prescription drug benefits under
Medicare, Part D, who reside in areas of the state served by program providers
that offer prescription drugs as a primary health care service shall receive
prescription drug benefits according to Medicare regulations and procedures.
Individuals who are not eligible for prescription drug benefits under Medicare,
Part D, who reside in areas of the state served by program providers that
offer prescription drugs as a primary health care service shall receive covered
prescription drugs dispensed by pharmacy providers according to this chapter.
§39.4.Provision of Contracts for Primary Health Care Services.
(a)
Primary health care services will be delivered through
a network of providers, directly by the department, or by the department and
providers in combination. Eligible individuals should receive services as
close to their home as possible, except in those situations where providers
or policies require treatment at specific facilities.
(b)
Services may be limited as to frequency, duration, and
cost for budgetary and administrative reasons.
(c)
In order to conserve funds and effectively administer the
program, the department shall contract on a Request for Proposal basis for
primary health care services.
(d)
The department shall publish public notice of Requests
for Proposal, release the applications, and select providers in accordance
with state law and department policy.
(e)
The department may deny, modify, suspend, or terminate
the approval of providers for submitting false or fraudulent claims or failing
to provide and maintain quality services according to medically acceptable
standards. A provider's performance under its contract may subject the provider
to review, fraud referral to the appropriate authority, and/or administrative
sanctions.
(f)
An applicant and/or a current contractor who is aggrieved
in connection with the award of a department contract to provide primary health
care services may file a protest in accordance with department policy.
§39.5.Provider Reimbursement for Primary Health Care Services.
(a)
The department will reimburse providers for services rendered
in accordance with the contracts between the providers and the department.
The department shall pay only valid claims submitted according to the terms
of the providers' contracts.
(b)
Except for prescription drugs covered under Medicare, Part
D, primary health care providers will be reimbursed for services delivered
to presumptively eligible clients.
(c)
All payments made on behalf of individuals will be for
claims received within 90 days from the date services were delivered.
§39.6.Eligibility Requirements and Provision of Services to Recipients.
(a)
Individuals covered under the Act are those who are not
eligible for other benefits. Individuals eligible for prescription drug benefits
under Medicare, Part D, who reside in areas of the state served by program
providers that offer prescription drugs as a primary health care service may
be eligible for other program services, and for prescription drugs not covered
by Medicare, Part D.
(b)
Nothing in this section shall preclude a system of integrated
eligibility with the commission.
(c)
In order for an individual to be eligible for primary health
care services, the individual must:
(1)
be in financial need based on a family income that does
not exceed 150% of the current Federal Poverty Level guidelines; and
(2)
be a Texas resident.
(d)
In accordance with program policy, providers:
(1)
shall assist applicants in completing the eligibility screening
process and shall provide coverage if the applicant is potentially eligible
for program services;
(2)
shall determine whether each program participant is eligible
for prescription drug benefits under Medicare, Part D;
(3)
may collect co-payments from eligible individuals who receive
primary health care services; and
(4)
shall provide services to potentially eligible individuals
who require immediate medical attention on a presumptive eligibility basis.
(e)
Subsection (d)(4) of this section notwithstanding, no otherwise
eligible individual unable to pay a co-payment may be denied services.
(f)
If funds are available, the program may pay co-payments
required under federal regulations for eligible individuals receiving prescription
drug benefits under Medicare, Part D, if the eligible individual resides in
an area of the state served by a program provider that offers prescription
drugs as a benefit under the primary health care service program.
(g)
No eligible individual or person legally responsible for
an eligible individual shall be required to make a pre-treatment payment or
deposit.
(h)
An individual found ineligible for program services may
reapply at any time.
§39.7.Maintaining Eligibility.
To maintain eligibility for program benefits, the recipient must continue
to reside in Texas, be in financial need as defined by these sections, and
inform the provider in writing or by telephone within 14 days of changes in
the following:
(1)
permanent home address;
(2)
health insurance coverage;
(3)
employment;
(4)
other income; or
(5)
family composition.
§39.8.Coordination of Benefits.
(a)
An individual is not eligible to receive services delivered
under the Act when the individual, or a person with a legal obligation to
support the individual, is eligible for some other benefit that would pay
for all or part of the services, unless coverage for those services has been
denied.
(b)
An individual who applies for or receives primary health
care services shall inform the provider at the time of application or at the
time the individual receives services of any other benefit to which the individual
or person who has a legal obligation to support the individual may be entitled.
(c)
An applicant or person who has a legal obligation to support
an applicant who has received services that are covered by some other benefit
shall reimburse the department to the extent of the services provided when
the other benefit is received.
(d)
The commissioner, or the manager of the department unit
having responsibility for oversight of the primary health care services program,
if so authorized by the commissioner, may waive enforcement of this section
concerning individual applicants if enforcement of this section would deny
services to a class of otherwise eligible individuals because of conflicting
federal, state, or local laws or regulations.
§39.9.Denial/Modification/Suspension/Termination of Services.
The department may deny, modify, suspend, or terminate services to
an applicant or recipient after written notice and an opportunity for a fair
hearing if:
(1)
the applicant has provided intentionally false or incomplete
information on the application form;
(2)
the recipient is no longer eligible; or
(3)
reimbursement for a benefit to which the recipient or a
person who has a legal obligation to support the recipient is entitled is
not provided to the program.
§39.10.Appeals.
(a)
A recipient or applicant aggrieved by the denial, modification,
suspension or termination of services may appeal the program's decision according
to the procedures in §§1.51 - 1.55 of this title (relating to Fair
Hearing Procedures). If an aggrieved recipient requests a hearing, the department
shall not terminate services to the recipient until a final decision is rendered.
(b)
An applicant or recipient may not appeal a denial, modification,
suspension, or termination of program services by the department if the department
has restricted program services according to priorities established by §39.3(b)
of this title (relating to General Program Requirements) and/or program funds
are reduced or curtailed.
(c)
Upon a final determination that program benefits will be
denied, modified, suspended, or terminated, the department will notify the
aggrieved recipient's provider in writing.
§39.11.Program Review.
(a)
Program review activities will be accomplished through
monitoring systems developed to ensure the delivery of appropriate services.
(b)
At least annually, the department shall review and determine
the continued need for the services it provides directly in accordance with
the methods and procedures used to make the initial determination prescribed
by the Act and these sections.
(c)
The department will require providers to report to the
department the following:
(1)
demographic information on eligible individuals;
(2)
the number of eligible individuals receiving services and
the cost of services per individual recipient;
(3)
fiscal and financial management reports of expenditures;
(4)
program accomplishments;
(5)
the number of applicants found ineligible for services;
and
(6)
networking and coordination of services with other providers.
(d)
The department may request other data and/or reports upon
prior notification.
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 13, 2006.
TRD-200600721
Cathy Campbell
General Counsel
Department of State Health Services
Earliest possible date of adoption: March 26, 2006
For further information, please call: (512) 458-7111 x6972
Subchapter B. LIMITATIONS ON SALES OF PRODUCTS CONTAINING EPHEDRINE, PSEUDOEPHEDRINE, AND NORPSEUDOEPHEDRINE
Subchapter A. PRIMARY HEALTH CARE SERVICES PROGRAM
Chapter 230.
SPECIFIC ADDITIONAL REQUIREMENTS FOR DRUGS