PART 1. DEPARTMENT OF STATE HEALTH SERVICES
CHAPTER 409. MENTAL HEALTH SERVICES--MEDICAID PROGRAMS
SUBCHAPTER B. ADVERSE ACTIONS
(Editor's note: The text of the following sections proposed for repeal will not be published.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, Texas.)
The Executive Commissioner of the Health and Human Services Commission (HHSC) on behalf of the Department of State Health Services (department) proposes the repeal of §§409.31 - 409.35, concerning adverse actions for the Mental Health Services Medicaid Programs.
BACKGROUND AND PURPOSE
These rules adopted by the former Texas Department of Mental Health and Mental Retardation (TDMHMR) were part of a broader set of rules that addressed fraud, abuse, and recovery of Medicaid payments, adverse actions and sanctions, and processes for requesting an administrative hearing. At the time they were adopted, these rules were necessary to fulfill the obligations of the former TDMHMR in administering the Mental Health Services Medicaid Programs. House Bill 2292, 78th Legislature, Regular Session (2003), effective September 1, 2004, resulted in the consolidation of organizational structure and functions of the health and human services agencies. As part of that consolidation, responsibility for matters relating to Medicaid program integrity, including administrative enforcement, sanctions, damages, and penalties, was made the exclusive jurisdiction of the Office of Inspector General (OIG) at HHSC. Also, at the time of the consolidation, these former TDMHMR rules were transferred to the department.
Government Code, §2001.039, requires that each state agency review and consider for readoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure Act). The department has determined that there is no need to retain the rules in Chapter 409, Subchapter B, because they have been superseded by the OIG rules in 1 TAC Chapter 371, Subchapter G, relating to Medicaid and Other Health and Human Services Fraud and Abuse Program Integrity. Thus, the rules are being proposed for repeal.
SECTION-BY-SECTION SUMMARY
The rules concern the application of the rules, definitions, notice of adverse actions, request for an administrative hearing, and withholding provider agreement payments.
FISCAL NOTE
Mike Maples, Assistant Commissioner for Mental Health and Substance Abuse Services, has determined that for each year of the first five-year period that the repeal of the sections will be in effect, there will be no fiscal implications to state or local governments as a result of enforcing and administering the repeal of the sections as proposed.
SMALL AND MICRO-BUSINESS ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS
Mr. Maples has also determined that there will be no adverse economic impact on small businesses or micro-businesses required to comply with the repeal of the sections as proposed. This was determined by interpretation of the rules that small businesses and micro-businesses will not be required to alter their business practices in order to comply with the repeal of the sections. Therefore, an economic impact statement and regulatory flexibility analysis for small and micro-businesses are not required.
ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT
There are no anticipated economic costs to persons who are required to comply with the repeal of the sections as proposed. There is no anticipated impact on local employment.
PUBLIC BENEFIT
Mr. Maples has determined that for each year of the first five years the repeal of the sections is in effect, the public will benefit from adoption of the repeals. The public benefit anticipated as a result of repealing the sections is that the department will maintain a clear, concise set of rules and avoid the potential for confusion from retaining rules that have no effect.
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 rules the specific intent of which are to protect the environment or reduce the 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 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 repeals would 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 in writing to Janet Fletcher, Department of State Health Services, Mail Code 2018/552, 909 West 45th Street, Austin, Texas 78751, or by e-mail to janet.fletcher@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, Lisa Hernandez, certifies that the proposed rules have been reviewed by legal counsel and found to be within the state agencies' authority to adopt.
STATUTORY AUTHORITY
The repeals are authorized by 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. Review of the rules implements Government Code, §2001.039.
The repeals affect the Government Code, Chapter 531; and Health and Safety Code, Chapter 1001.
§409.31.Application.
§409.32.Definitions.
§409.33.Notice of Adverse Action.
§409.34.Request for an Administrative Hearing.
§409.35.Withholding Provider Agreement Payments.
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 May 19, 2009.
TRD-200901948
Lisa Hernandez
General Counsel
Department of State Health Services
Earliest possible date of adoption: July 5, 2009
For further information, please call: (512) 458-7111 x6972