PART 2. TEXAS ETHICS COMMISSION
CHAPTER 6. ORGANIZATION AND ADMINISTRATION
SUBCHAPTER A. GENERAL RULES
1 TAC §6.5
The Texas Ethics Commission (the commission) adopts
an amendment to §6.5, relating to the Texas Ethics Commission's
authority to adopt rules. The amendment is adopted without changes
to the proposed text as published in the May 8, 2009, issue of the Texas Register
(34 TexReg 2729) and will
not be republished.
Currently under §6.5, the commission may not adopt a rule
that in the opinion of the commission directly addresses the subject
of pending litigation known to the commission. The amendment clarifies
the term litigation by providing that it does not include the subject
matter of a sworn complaint if the sworn complaint has not reached
the formal hearing stage.
No comments were received regarding the proposed rule during the
comment period.
The amendment to §6.5 is adopted under Government
Code, Chapter 571, §571.062, which authorizes the commission
to adopt rules concerning the laws administered and enforced by the
commission.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 11, 2009.
TRD-200902330
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Effective date: July 1, 2009
Proposal publication date: May 8, 2009
For further information, please call: (512) 463-5800
1 TAC §8.3
The Texas Ethics Commission (the commission) adopts
an amendment to §8.3, relating to the subject matter of an advisory
opinion issued by the Texas Ethics Commission. The amendment is adopted
without changes to the proposed text as published in the May 8, 2009,
issue of the Texas Register (34 TexReg
2729) and will not be republished.
Currently under §8.3, the commission may not issue an advisory
opinion that concerns the subject matter of pending litigation known
to the commission. The amendment clarifies the term litigation by
providing that it does not include the subject matter of a sworn complaint
if the sworn complaint has not reached the formal hearing stage.
No comments were received regarding the proposed amendment during
the comment period.
The amendment to §8.3 is adopted under Government
Code, Chapter 571, §571.062, which authorizes the commission
to adopt rules concerning the laws administered and enforced by the
commission.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 11, 2009.
TRD-200902331
Natalia Luna Ashley
General Counsel
Texas Ethics Commission
Effective date: July 1, 2009
Proposal publication date: May 8, 2009
For further information, please call: (512) 463-5800
CHAPTER 73. STATUTORY DOCUMENTS
SUBCHAPTER F. DISCLOSURE STATEMENT OF CONDITIONAL GIFTS
1 TAC §73.91
The Office of the Secretary of State adopts an amendment
to 1 TAC §73.91, concerning disclosure of conditional gifts.
This non-substantive change corrects an outdated citation to the United
States Code. The amendment is adopted without change to the text proposed
in the May 8, 2009, issue of the Texas Register (34
TexReg 2731).
Two specific changes are adopted: (1) capitalization of the "f"
in "Federal" in two places where the word modifies "Department of
Education"; and (2) correction of an outdated citation to "20 United
States Code 1145d" to "20 United States Code 1011f".
COMMENTS
The Secretary of State received no comments concerning the proposed
amendment.
STATUTORY AUTHORITY
This amendment is adopted under the authority of §51.573,
Texas Education Code, which provides that the secretary of state shall
prescribe the form and contents of a disclosure statement of conditional
gifts in accordance with federal law.
Chapter 51, Texas Education Code, is affected by the amended rule.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902300
Lorna Wassdorf
Director of Business and Public Filings
Office of the Secretary of State
Effective date: June 29, 2009
Proposal publication date: May 8, 2009
For further information, please call: (512) 463-5562
CHAPTER 357. HEARINGS
The Health and Human Services Commission (HHSC) adopts the
repeal of Chapter 357, Subchapters A, D, E, F, G, and H and adopts
new Chapter 357, Subchapter A. Specifically, HHSC repeals: Subchapter
A, §§357.1, 357.3, 357.5 - 357.7, 357.9, 357.11 - 357.13,
357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27 and 357.29,
concerning Medicaid Fair Hearings; Subchapter D, §§357.301
- 357.305, concerning Fair Hearings; Subchapter E, §§357.351
- 357.360, concerning Appeals Process; Subchapter F, §§357.401
- 357.417, concerning Hearing Procedure; Subchapter G, §357.441
and §357.442, concerning Social Service Appeals, and Subchapter
H, §§357.461 - 357.463, concerning Medicaid Services Appeals.
HHSC replaces the repeal with new Subchapter A, §§357.1,
357.3, 357.5, 357.7, 357.9, 357.11, 357.13, 357.15, 357.17, 357.19,
357.21, 357.23 and 357.25, concerning Uniform Fair Hearing Rules.
HHSC also adopts the amendments to Subchapter R, §357.702 and §357.703,
concerning Judicial and Administrative Review of Hearings. New §§357.1,
357.3, 357.9, 357.11, 357.13, 357.17, 357.19, 357.21, 357.23 and 357.25
are adopted with changes to the proposed text as published in the
January 16, 2009, issue of the Texas Register (34
TexReg 309). The text of the rules will be republished. The repeal
of §§357.1, 357.3, 357.5 - 357.7, 357.9, 357.11 - 357.13,
357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27, 357.29, 357.301
- 357.305, 357.351 - 357.360, 357.401 - 357.417, 357.441, 357.442,
and 357.461 - 357.463, new §§357.5, 357.7, and 357.15 and
the amendments to §357.702 and §357.703 are adopted without
changes to the proposed text and will not be republished.
Background and Justification
The Health and Human Services Commission (HHSC) is required to
have procedural rules that direct the conduct of client fair hearings.
At consolidation of the human services agencies, the fair hearing
rules at Texas Department of Human Services were transferred to HHSC.
At that time, only fair hearing rules for Medicaid appeals already
existed at HHSC.
The adopted rules will repeal the existing sets of fair hearing
rules and provide a much clearer picture in new §§357.1
- 357.21 of the rules that govern client appeals at HHSC. They will
provide more streamlined procedures for the conduct of these hearings.
In addition, the proposed rules conform to Commission practice and
fulfill the purpose intended by Government Code §531.0055: that
performance of administrative support services for health and human
services agencies, including legal support, is the responsibility
of HHSC.
The adopted changes to §357.702 and §357.703 clarify
the definition of "notice" and that the administrative review is limited
to the record considered by the hearing officer. The adopted changes
also provide an exception to the 30-day timeframe for requesting an
administrative review.
Comments
The 30-day comment period ended February 16, 2009. Since February
16, 2009 was a holiday, comments were accepted through February 17,
2009. During this period, HHSC received comments from Advocacy Incorporated
and the Texas Legal Services Center. A summary of the comments relating
to the proposed rule and HHSC's responses follows. It should also
be noted that references to the "Food Stamp Program" have been changed
to "Supplemental Nutrition Assistance Program" (SNAP) in order to
track the new federal name of the program.
Comment: Advocacy Incorporated noted that proposed §357.1(2)
defines "Action Effective Date" as "the date the agency action becomes
effective." They would prefer HHSC use the "Date of Action" used in
the federal regulations.
Response: Those terms defined in the rules are those that are included
throughout and are necessary for a common understanding of the appeals
process. These include "Action Effective Date," which is the date
the agency's action becomes effective, and "Date of Notice of Agency
Action," which is the date that appears on the written notice informing
the client of the action. These terms are specific and important when
calculating time limits in the appeal process. "Date of Action" is
not used in these rules. There is no requirement that every specific
term defined in federal regulations be used and defined in a State's
rules so long as they do not conflict with federal hearing rules.
No changes were made in response to this comment.
Comment: Advocacy Incorporated argues that the definition of "Across
the Board Reduction of Services" in §357.1 does not strictly
comply with federal regulations and limits the beneficiary's right
to a fair hearing. Specifically, they note that the definition of
"Across-the-Board Reduction of Services," found in proposed §357.1(1)
(which is related to proposed §357.3(b)(4)), is not in compliance
with 42 C.F.R. §431.220(b), which only allows the agency to not
grant a hearing "if the sole issue is a Federal or State law
requiring an automatic change adversely
affecting some or all recipients." (Emphasis added).
Response: The rule is changed to track the federal rules in order
to reflect the comment.
Comment: The commenters believe that a fuller statement that includes
all of the various federal program requirements should be used in
lieu of proposed §357.1(3), the definition of "adequate notice."
Texas Legal Services Center and Advocacy Incorporated stated the current
definition for adequate notice is not comprehensive enough to comply
with federal regulations and should be changed. They believe that
the wording in the current fair hearing rules is informative and useful
to the applicants and recipients to understand why an action was taken
and be aware of the right to appeal. They also note that, besides
the content-of-notice requirements found in various federal regulations,
the First Agreement in Alberto N., et al.
v. Hawkins, et al. set out, with specificity, the requirements
of adequate notice and that the relevant language of this agreement
should also be included in the rule.
Response: While agreeing about the importance of notice to recipients,
the Commission disagrees with the suggestion that the hearing rules
are the place to address all of the many program requirements of adequate
notice, whether from federal rules or settlements in various lawsuits.
The federal requirements for the required notices vary depending on
the program and the purpose of the notice. The proposed HHSC program
rules require these notices to be consistent with each program's laws,
rules and regulations; they are the responsibility of the dozens of
program areas that involve fair hearings. The rule language was not
changed in response to this comment.
Comment: Advocacy Incorporated stated that proposed definition
of "Agency Action" in §357.1(6) fails to comply with federal
regulations, in that it limits the right to appeal an agency's decision
to "reduce, suspend, terminate, or deny benefits,"
which would deny applicants or beneficiaries who are challenging
a termination, suspension, or reduction of Medicaid eligibility.
The federal regulations use
the terms "eligibility" and "services."
Response: It has always been the practice of the Appeals Division
to interpret "denial of benefits" as including "eligibility." However,
the proposed rule language was changed to add "eligibility" in response
to this comment to ensure clarity.
Comment: Texas Legal Services Center and Advocacy Incorporated
stated that proposed §357.1(9) regarding the designation of a
representative at the hearing should not be required to be "in writing."
The commenter believes this requirement limits applicants for or recipients
of assistance right to be assisted by whomever they choose.
Response: The purpose of the "in writing" requirement is to ensure
that vendors or providers are not able to act on behalf of an appellant
who has not approved their actions. This has been a serious problem
in Medicaid. However, HHSC hearing officers will accept designations
when the appellant confirms on the record that he or she has an authorized
representative or designates someone else to speak on his behalf.
Rule language was changed to specify this practice in response to
the comment.
Comment: Advocacy Incorporated stated that proposed definition
of a "Fair Hearing" in §357.1(19) fails to account for or otherwise
allow appeals for "inaction."
Response: The failure of an agency to act upon a request for services
has always been subject to appeal. The failure to "act upon a request
with reasonable promptness" is covered under the Right to Appeal section
(§357.3) of the rules. The rule was not changed in response to
the comment.
Comment: Advocacy Incorporated stated that proposed §357.1(36)
states that THSteps was "formerly known as EPSDT." The commenter noted
that HHSC calls the EPSDT benefit THSteps.
Response: The rule language was not changed in response to the
comment because HHSC believes the rule already reflects this point.
Comment: Advocacy Incorporated stated that the proposed definitions
are missing a definition for "Adverse Determination" which should
be included.
Response: A definition for "adverse determination" was not included
because the term is not used in these rules. The rule language was
not changed in response to the comment.
Comment: Advocacy Incorporated stated that the proposed rule regarding
the "Right to Fair Hearing," §357.3(b), fails to comply with
federal law since it limits the right to appeal to actions that "reduce,
suspend, terminate or deny benefits," which does not include "eligibility".
Response: It has always been the practice of HHSC and its predecessor
agencies to allow appeals of eligibility issues, as a logical interpretation
of "denial of benefits" encompasses that term. However, the rule language
was changed to specify "eligibility" in response to this comment.
Comment: Advocacy Incorporated stated that there is no need to
change the wording related to a "Hearings Officer's Responsibility," §357.5(c).
They assert a preference to keep the current fair hearing rule language,
which does not mention the Rules of Civil Procedure.
Response: The proposed rule expands the language of the current
rule in order to better preserve the informal nature of the fair hearing,
by stating that the Texas Rules of Evidence and the Texas Rules of
Civil Procedure are not followed. The proposed rule was not changed
in response to this comment.
Comment: Advocacy Incorporated stated that the proposed rules do
not require the attendance of the medical director in appeals related
to the denial or reduction of nursing services as required in the
Second Partial Settlement Agreement in the Alberto N. lawsuit.
Response: The agreement in Alberto N. applies
only to cases involving appellants who are under the age of 21 and
seeking private duty nursing. The Medical Director, in appropriate
circumstances, serves as an agency representative, attends hearings,
and provides testimony in support of the decision to deny or reduce
nursing services - but this requirement is limited. The rule language
was not changed in response to this comment.
Comment: Advocacy Incorporated stated that proposed §357.5(c)(2)(D),
which allows the hearing officer to limit the number of persons in
attendance at a hearing, is unnecessary. They assert that the hearings
officer should have sufficient phone lines and/or space to accommodate
all participants and that the appellant's right to present testimony
through witnesses may not be compromised due to a lack of phone capacity
or office space.
Response: This rule follows current HHSC hearing rules and federal
regulations which permit limiting the number of attendees at a hearing
when space limitations exist. The hearings officer applies the same
considerations to telephone hearings when appropriate, since telephone
lines are likewise not unlimited. However, despite restrictions, hearing
officers are able to ensure that all witnesses are heard. The rule
language was not changed in response to the comment.
Comment: Advocacy Incorporated stated that proposed §357.5(c)(3)(D)
should be re-written to include the same requirements of proposed §357.5(c)(3)(E),
as the federal regulations require the same specificity. See, e.g.,
42 C.F.R. §431.244(d) and
(e) (decision must "summarize the facts"; "specify the reasons for
the decision").
Response: All fair hearing decisions include Findings of Fact,
which summarize the facts that were proven and which are pertinent
to the appeal, and Conclusions of Law, which state the hearings officer's
decision and the legal basis for that decision. The rule language
was not changed in response to the comment.
Comment: Advocacy Incorporated notes that proposed §357.7(d)
states that if advance notice is provided and if a hearing is requested
within ten days of the mailing of the notice, and "the operating agency or its designee determines
that the action resulted from something other than the application
of federal or state law or policy, the operating agency or
its designee will reinstate and continue an individual's services
until a hearing decision is rendered." They believe that this proposed
rule violates 42 C.F.R. §431.230 (Maintaining services), in that
"the agency may not terminate or reduce services until a decision
is rendered after the hearing unless - (1) It is determined at the hearing
that the sole issue is one
of Federal or State Law . . . ." Pursuant to federal law, services
must be maintained unless it is determined at the hearing
that the sole issue is one of federal or state
law. They argue that the proposed rule, however, improperly lets the
agency or its designee determine, prior to the hearing,
whether the action was caused by the "application
of federal or state law" (which is also different than "sole issue
is one of Federal or State Law").
Response: The proposed rules do not contain a §357.7(d). However,
assuming the comment refers to §357.3(b)(4)(B), that rule is
changed to allow this determination at a preliminary hearing conference.
Comment: Advocacy Incorporated disagreed with that portion of proposed §357.9
requiring the appellant to bear the burden of proof to prove an affirmative
defense. The commenter stated the rule allows the agency to "unlawfully
flip the burden of proof to the beneficiary."
Response: HHSC disagrees that requiring an appellant to bear the
burden of proof on an affirmative defense is improper or illegal.
However, HHSC has concluded that the affirmative defense concept is
possibly too confusing for informal hearings, especially when so few
appellants have legal representation. The rule requiring an appellant
to bear the burden of proof in these special circumstances has been
changed as a result of this comment.
Comment: Texas Legal Services Center stated that in regard to continuation
of benefits, addressed in part by §357.11(a)(7), due process
may require continuation of benefits by virtue of the state or federal
constitution, judicial decisions (whether reported or not, and whether
in the form of a decision by the court or a decision by the court
to approve a consent decree), and/or policies that provide a reasonable
expectancy of continuation of benefits. The commenter requested these
additional sources be added to the rule.
Response: HHSC agrees that continued benefits may be affected in
the instances cited by the commenter but believe that the reference
to "law" in the proposed rule covers those circumstances. Given the
great variety of HHSC programs which are the subject of fair hearings,
and varied circumstances under which benefits are continued, the proposed
rule language was clarified in response to this comment to specify
that benefits should be continued in accordance with the requirements
of the program at issue.
Comment: Advocacy Incorporated stated that §357.13 should
be revised to require the hearing officer or the agency or it's designee
to provide the case file and copies of all documentation and evidence
to be used in the fair hearing, at no cost. The commenter believes
the beneficiary should, as a matter of course, receive his or her
case file and evidence to be used at hearing, without having to request it.
Response: HHSC understands the point of this comment to be that
the entire case file should be provided automatically whenever an
appellant requests a fair hearing. The documents program staff used
to make the decision being appealed are furnished at no cost to the
appellant and to the hearings officer prior to the hearing. Automatically
copying and forwarding the entire case file to the appellant is not
required by Federal regulations, nor is it cost-effective. In addition,
automatically furnishing the complete file would seldom be beneficial
to an appellant, since it is rare that an entire case file would be
relevant to the issue on appeal. The rule language was not changed
in response to this comment.
Comment: Advocacy Incorporated stated that, according to the First
Settlement Agreement in the Alberto N. lawsuit
and federal regulations, an appellant has the right to request and
expect an in-person hearing. The commenter suggested revising §357.13
to allow an in-person hearing upon the request of the appellant.
Response: HHSC receives approximately 33,000 fair hearing requests
per year. Scheduling hearings by telephone allows them to be heard
much more quickly than if all hearings were conducted face-to-face,
and federal regulations permit hearings to be conducted in this manner.
In-person hearings must be coordinated between appellants, hearings
officers, program representatives, and often attorneys and witnesses.
Hearings staff often learn that appellants prefer to have their hearing
by telephone, as this fits their schedules better. Hearings officers
are provided extensive training on conducting telephone hearings,
to ensure that appellants' due process rights are preserved and in-person
hearings provided where required.
The settlement agreement in the Alberto N.
lawsuit requires an in-person hearing when requested, for
certain appellants 21 years of age or younger, and HHSC complies with
this requirement in all respects. Rule language was not changed in
response to this comment.
Comment: Advocacy Incorporated notes that proposed §357.17(b)(2)(A)
states that "expedited hearings are granted if the health plan or
health plan provider determines that taking the time for resolution
of a fair hearing could seriously jeopardize the individual's life
or health . . . ." The commenter believes that this determination
should be made by the hearings officer, the appellant or the appellant's
physician.
Response: The portion of the rule in question is derived from federal
regulations regarding the appeals process of managed care organizations;
this federal provision is confusing in the context of the hearing
rules. The rule is amended to remove references to the federal process
and to make it clear that any Medicaid patient whose health is threatened
by a delay in the fair hearings process may request and be promptly
granted an expedited hearing.
Comment: Texas Legal Services Center stated that the scope for
review of TANF decisions should be expanded to include constitutional
provisions, regulations, statutes, judicial decisions, policies and
consent decrees.
Response: Section 357.19(f)(3) addresses the scope of attorney
reviews provided for TANF decisions. If an appellant disagrees with
a decision in a TANF case, a procedural review is available to him,
since TANF decisions by statute are not accorded administrative or
judicial review rights. HHSC believes that the proposed scope is so
wide as to be inappropriate for an administrative review of an agency
decision. The rule language was not changed in response to this comment.
Comment: Advocacy Incorporated stated that, with regard to §357.21(a),
the hearings officer should be allowed to make a determination as
to whether an interpreter is needed before the hearing begins. They
believe that this is more practical since, especially in rural areas,
an interpreter may not be so easily obtained in time if the hearing
is scheduled.
Response: Appellants are given an opportunity to request an interpreter
when they make a request for a fair hearing. Information on how to
request an interpreter is included with the Appointment Notice sent
to the appellant. If a hearings officer knows in advance that an interpreter
is needed, he will be free to makes necessary arrangements. Despite
being provided this information, appellants often do not notify the
hearings officer that they need an interpreter until the hearing begins.
At that time, the hearings officer makes needed arrangements and may
have to reschedule the hearing. If the hearing is held by telephone
and requires an interpreter, the hearings officer includes the interpreter
in the conference call before officially beginning the hearing. The
rule language was clarified in response to this comment.
Comment: Advocacy Incorporated stated that proposed §357.21(a)(2)
should contain more clarification regarding how a hearing office determines
whether deaf or hard of hearing participants are "sufficiently fluent"
in the same language so that no barrier is present.
Response: The fair hearing rules are consistent with laws, statutes,
regulations and agency agreements. More detailed information is provided
to the hearings officers during training on how to determine whether
all participants are able to communicate clearly, in order that there
are no barriers to their participation in the hearing. The rule language
was clarified in response to this comment by adopting "able to communicate"
in lieu of "sufficiently fluent."
Comment: Advocacy Incorporated stated that proposed §357.21(a)
should include language that requires the hearing officer to use the
primary consideration standard in evaluating the needs of a deaf or
hard of hearing participant. They also state that the proposed rule
be amended to be consistent with the terms used in other Texas state
laws concerning the certification or licensing of interpreters, which
includes for spoken languages and sign language. They suggest that
HHSC provide a BEI or RID certified sign language interpreter. Moreover,
the commenter stated that a deaf or hard of hearing appellants should
be allowed to request another form of auxiliary aid or services other
than an interpreter.
Response: HHSC agrees that clear communication is necessary between
all parties to a fair hearing. HHSC contracts for interpretation services
for fair hearings, and these contracts require all interpreters to
be BEI or RID certified at a minimum of level III or IV, as appropriate.
All hearings participants are provided form H4805, Fair Hearing
Procedures, which informs them of what to do if they need special
accommodations. If, at the time of the hearing, it becomes evident
that special accommodations are needed, the hearings officer makes
necessary arrangements to ensure that all parties are able to communicate
effectively. Greater detail in terms of the form of the assistance
is appropriate for training and the Fair Hearings Handbook but not
for rules as it may be subject to frequent change. The rule has been
changed in subsection (b) to emphasize that the hearing officer will
use all available means required by law to provide assistance to those
requiring it at the hearing.
Comment: Advocacy Incorporated stated with regard to §357.23(a)(3)
there is nothing in federal law which allows the agency to extend
the ninety day time limit on issuing the hearing decision. The commenter
suggested an additional clause requiring a written notice to the appellant
advising them of the new deadline. They believe that it might be acceptable
for the proposed rule to be revised by the addition of a further clause,
namely, "the appellant will be sent notice of any such extension at
least ten days prior to the time limit that would otherwise obtain
and the notice will inform the appellant of the revised date by when
the decision will be issued."
Response: HHSC allows an appellant to request a 30-day postponement
of his hearing. The time limit to issue a decision in the hearing
may be extended by the number of days the hearing was postponed at
the appellant's request. The settlement agreement reached in the Villarreal
lawsuit provides for this extension.
The hearings officer may also allow a hearing record to remain
open to receive additional information, and granting the extension
will be clearly stated on the record during the hearing. Leaving the
record open benefits the appellant as it allows him to reschedule
the hearing and/or provide additional evidence if he wishes. Requiring
staff to send another notice each time an appellant requests an extension
for this purpose is not necessary, as the appellant made the request
and participated in the hearing where the extension was granted. The
proposed language was not changed in response to this comment.
Comment: Advocacy Incorporated stated a hearings officer should
only be able to re-issue a decision at the request of the appellant
or appellant's representative. The commenter notes that although an
appellant has the right to request administrative review within 30
days of the hearing officer's decision, there is not a concept that
the decision "lies in repose out of effect for some period of days
after it is issued; to the contrary, the decision is effective when
issued and if it is to be withdrawn, revised, or re-issued, that should
only occur at the request of the appellant."
Response: Section 357.23(g) authorizes the hearings officer to
promptly withdraw a decision and issue a new one when appropriate,
to correct an error of fact or law - whether in favor of the agency
or the appellant. Proposed §357.23(f) provides a mechanism for
the appellant to request that a hearing be re-opened. Moreover, if
a new decision is issued, appellant has the right to request administrative
review of that decision. The rule language was not changed in response
to this comment.
Comment: Advocacy Incorporated stated that proposed §357.25(a)
should be revised to include various documents associated with the
appeal. The commenter believes that hearings decision should be available
to the public indefinitely, not just for a period of a few years.
Response: HHSC believes that the rule language regarding the items
to be retained in a record of the decision includes all items required
by law. Regarding the time these documents are retained, there is
no law requiring state agencies to retain hearing records indefinitely.
Many of HHSC's programs have amended their retention schedules to
require that records be kept for six years from the date a case is
closed, in order to comply with certain HIPAA requirements. The Appeals
Division, including the Fair and Fraud Hearings Section, will amend
its retention schedule to retain records for six years from the last
action in an administrative appeal, and the rule language was changed
in response to this comment.
Comment: Advocacy Incorporated stated that all decisions should
be redacted and made available to the public within 30 days of the
date of the decision as is the case with decisions related to the Alberto N.
settlement, i.e., all fair hearing
decisions, not just Texas Health Steps appeals.
Response: HHSC complies with all known rules, regulations, and
settlements that relate to redacting records and making records available
to the public. The provisions of the Alberto N.
settlement do not apply to all Medicaid decisions and redacting
those other decisions would serve no apparent purpose. The rule language
was not changed in response to this comment.
Comment: Advocacy Incorporated stated that the proposed rules are
missing sections on the reinstatement of services, corrective action,
and Federal Financial Participation which provides for, among other
things, payments for continued services, payments for corrective action,
and administrative costs for the beneficiary, his or her representative,
and witnesses to travel to and from the hearing. They believe that
these omissions deprive beneficiaries of rights provided by federal
law, and therefore, must be cured.
Response: The fair hearing rules comply with all applicable federal
regulations regarding continuing benefits and complying with the hearings
officers' decision. The fair hearing rules do not address Federal
Financial Participation requirements or other matters included in
the State Plan. Decisions involving FFP or the State Plan are not
made in the Appeals Division, and HHSC has elected not to provide
for paying administrative and travel costs for appellants and witnesses
to and from fair hearings.
It is important to note that these rules must agree with federal
regulations, but there is no requirement that they reiterate every
related or tangentially related federal provision already covered
in those regulations. No changes were made to this rule in response
to the comment.
SUBCHAPTER A. MEDICAID FAIR HEARINGS
1 TAC §§357.1, 357.3, 357.5 - 357.7, 357.9, 357.11 - 357.13, 357.15, 357.17, 357.19, 357.21, 357.23, 357.25, 357.27, 357.29
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902306
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
1 TAC §§357.301 - 357.305
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902307
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
1 TAC §§357.351 - 357.360
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902308
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
1 TAC §§357.401 - 357.417
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902309
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
1 TAC §357.441, §357.442
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902310
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
1 TAC §§357.461 - 357.463
The repeals are adopted under the Texas Government
Code, §531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; and Texas Human Resources Code, §31.034,
which provides clients the right to appeal an action or failure to
act by a local administrative unit relating to the financial assistance;
Texas Human Resources Code, §32.035 makes the provisions of §31.034
applicable to applicants for medical assistance; and Human Resources
Code, §35.003, provides an individual with the opportunity to
request a hearing if an application for person with disabilities support
services is denied.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of the Secretary of State on June 9, 2009.
TRD-200902311
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: June 29, 2009
Proposal publication date: January 16, 2009
For further information, please call: (512) 424-6900
CHAPTER 8. ADVISORY OPINIONS
PART 4. OFFICE OF THE SECRETARY OF STATE
PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION
SUBCHAPTER D. FAIR HEARINGS
SUBCHAPTER E. APPEALS PROCESS
SUBCHAPTER F. HEARING PROCEDURE
SUBCHAPTER G. SOCIAL SERVICES APPEALS
SUBCHAPTER H. MEDICAL SERVICES APPEALS
SUBCHAPTER A. UNIFORM FAIR HEARING RULES