PART 12. COMMISSION ON STATE EMERGENCY COMMUNICATIONS
The Commission on State Emergency Communications (CSEC) proposes new §252.3, concerning Sick Leave Pool.
The new rule is proposed pursuant to Government Code §661.002, which requires the governing body of a state agency to adopt rules relating to the operation of the agency's sick leave pool.
FISCAL NOTE
Paul Mallett, CSEC's executive director, has determined that for each year of the first five fiscal years that §252.3 is in effect there will be no fiscal implications to the state or local governments as a result of enforcing or administering the proposed section.
PUBLIC BENEFIT
Mr. Mallett has determined that for each year of the first five years the proposed section is in effect the public will benefit from the flexibility afforded to agency employees or their family members suffering from a catastrophic illness or injury. Mr. Mallett has also determined that for each year of the first five years the proposed section is in effect there are no probable economic costs to persons required to comply with the section.
REGULATORY ANALYSIS OF MAJOR ENVIRONMENTAL RULES
CSEC has determined that this proposal is not a "major environmental rule" as defined by Government Code §2001.0225.
LOCAL EMPLOYMENT IMPACT STATEMENT
CSEC has determined that this proposal does not directly affect a local economy and therefore has not drafted a local employment impact statement as would otherwise be required under Administrative Procedures Act §2001.022.
SMALL AND MICRO-BUSINESS IMPACT ANALYSIS
In accordance with Government Code §2006.002(c), Mr. Mallett has determined that there will be no adverse economic effect on small businesses or micro-businesses. Accordingly, CSEC has not prepared the economic impact statement or regulatory flexibility analysis that would otherwise be required.
PUBLIC COMMENT
Comments on the proposal may be submitted in writing to Patrick Tyler, Commission on State Emergency Communications, 333 Guadalupe Street, Suite 2-212, Austin, Texas 78701-3942 or by email to patrick.tyler@csec.state.tx.us. Comments will be accepted for 30 days following publication of the proposal in the Texas Register.
STATEMENT OF AUTHORITY
The new section is proposed pursuant to Health and Safety Code §771.051 and Government Code §661.002.
No other statute, article, or code is affected by the proposal.
§252.3.Sick Leave Pool.
(a) A sick leave pool program is established to help alleviate the hardship caused to an employee and the employee's family if a catastrophic illness or injury forces the employee to exhaust all accrued leave time and to lose compensation from the state.
(b) The Commission's Executive Director shall designate a Sick Leave Pool Administrator to administer the sick leave pool program.
(c) The Sick Leave Pool Administrator, with the advice and consent of the Executive Director, shall prescribe procedures for the operation of the sick leave pool program and include such procedures in the Commission's Human Resources Policy and Procedures Manual.
(d) Employee donations to the sick leave pool are strictly voluntary and must be made in writing.
(e) Procedures for the operation of the sick leave pool program shall be consistent with Texas Government Code, Chapter 661.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 17, 2009.
TRD-200901466
Patrick Tyler
General Counsel
Commission on State Emergency Communications
Earliest possible date of adoption: May 31, 2009
For further information, please call: (512) 305-6930
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER A. COST DETERMINATION PROCESS
The Texas Health and Human Services Commission (HHSC) proposes amendments to §355.110, Informal Reviews and Formal Appeals, and §355.111, Administrative Contract Violations, under Title 1 of the Texas Administrative Code (TAC), Part 15, Chapter 355, Subchapter A.
Background and Justification
Section 355.110 establishes the requirements for requesting informal reviews and formal appeals of HHSC adjustments to cost report data and §355.111 establishes actions HHSC may take in response to administrative contract violations relating to cost reporting requirements. HHSC, under its authority and responsibility to administer and implement rates, is updating these rules to replace outdated references and clarify the title in which the updated references are located.
Section-by-Section Summary
The proposed amendments to §355.110 are as follows:
Revise subsection (a)(1)(A) to replace an outdated reference to 1 TAC §§357.481 - 357.490 (relating to Formal Appeals) with a reference to 1 TAC §§357.481 - 357.498 (relating to Hearings Under the Administrative Procedure Act).
Revise subsection (d) to replace an outdated reference to 1 TAC §§357.481 - 357.490 with a reference to 1 TAC §§357.481 - 357.498 and to replace an outdated reference to Medical Fair Hearings with a reference to Hearings.
Revise subsection (e) to replace an outdated reference to 1 TAC §§357.481 - 357.490 with a reference to 1 TAC §§357.481 - 357.498.
The proposed amendments to §355.111 are as follows:
Revise paragraph (3) to replace an outdated reference to 40 TAC §§79.1601 - 79.1610 (relating to Formal Appeals) with a reference to 1 TAC §§357.481 - 357.498 (relating to Hearings Under the Administrative Procedure Act), to replace an outdated reference to 40 TAC Chapter 79 (relating to Legal Services) with a reference to 1 TAC Chapter 357 (relating to Hearings) and to replace an outdated reference to legacy DHS with a reference to HHSC or its designee.
Fiscal Note
Gordon E. Taylor, Chief Financial Officer for the Department of Aging and Disability Services, has determined that during the first five-year period the amended rule is in effect there will be no fiscal impact to state government. The proposed rule will not result in any fiscal implications for local health and human services agencies. There are no fiscal implications for local governments as a result of enforcing or administering the section.
Small Business and Micro-business Impact Analysis
HHSC has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the amendment. The implementation of these proposed rule amendments does not require any changes in practice or any additional cost to the contracted provider.
HHSC does not anticipate that there will be any economic cost to persons who are required to comply with this amendment. The amendment will not affect local employment.
Public Benefit
Carolyn Pratt, Director of Rate Analysis, has determined that, for each of the first five years the amendment is in effect, the expected public benefit is that the rules will contain correct references to information regarding appeals and hearings, thus allowing the public to access accurate information regarding hearings and appeals.
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 Texas Government Code §2007.043.
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 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.
Public Comment
Questions about the content of this proposal may be directed to Sarah Hambrick in the HHSC Rate Analysis Department by telephone at (512) 491-1431. Written comments on the proposal may be submitted to Ms. Hambrick by facsimile at (512) 491-1998, by e-mail to sarah.hambrick@hhsc.state.tx.us, or by mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200, within 30 days of publication of this proposal in the Texas Register.
Statutory Authority
The amendment is proposed under the Texas Government Code, §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and the Human Resource Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.
The proposed amendments 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.
§355.110.Informal Reviews and Formal Appeals.
(a) General provisions.
(1) Definitions. The following words or terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise.
(A) Formal appeal--An administrative hearing requested
by an interested party under subsection (d) of this section and conducted
in accordance with procedures described at [1 TAC
] §§357.481 - 357.498 of this title [357.490
] (relating to Hearings Under the Administrative Procedure Act
[Formal Appeals]).
(B) Informal review--The informal reexamination of an action or determination by the Texas Health and Human Services Commission (HHSC) under this chapter requested by an interested party and conducted in accordance with subsection (c) of this section.
(C) Interested party--A Texas Department of Aging and Disability Services (DADS) contracted provider.
(2) Standing to file informal reviews or formal appeals. Only an interested party has standing to file for an informal review or formal appeal under this section.
(3) Subject matter of informal reviews and formal appeals. An interested party may request an informal review or formal appeal regarding an action or determination under §355.102 of this title (relating to General Principles of Allowable and Unallowable Costs), §355.103 of this title (relating to Specifications for Allowable and Unallowable Costs), §355.104 of this title (relating to Revenues), and §355.105 of this title (relating to General Reporting and Documentation Requirements, Methods and Procedures), or program-specific allowable or unallowable costs, taken specifically in regard to the interested party.
(b) Separation of informal reviews and formal appeals from the reimbursement determination process.
(1) The filing of a request for an informal review or formal appeal under this section does not stay or delay implementation of reimbursement adopted by HHSC in accordance with the requirements of this chapter.
(2) Closure of cost report databases used in the reimbursement determination process and application of results of pending review or appeal. To facilitate the timely and efficient calculation of reimbursement amounts, HHSC closes cost report databases used in the reimbursement determination process prior to the proposal of reimbursement amounts.
(A) Impact on database of pending informal review or formal appeal. If an informal review is pending at the time the database is closed, the database shall include the interested party's cost report data including any adjustments made either in the desk review or field audit. If a formal appeal is pending at the time the database is closed, the database shall include the interested party's cost report data including any adjustments required as a result of the informal review.
(B) Uniform reimbursement.
(i) For programs where reimbursement is uniform by class of service and/or provider type, the cost report database used in reimbursement determination is closed six weeks prior to the public hearing on the proposed reimbursement that is based on the cost report database.
(ii) If an informal review or formal appeal is pending at the time the cost report database is closed, the results of the informal review or formal appeal shall be applied during the next reimbursement determination cycle, if applicable.
(C) Contractor-specific reimbursement.
(i) For programs where reimbursement is contractor-specific the cost report database is closed ten weeks prior to the end of the reimbursement determination cycle.
(ii) If an informal review or formal appeal is pending at the time the cost report database is closed, the results of the informal review or formal appeal shall be applied to the interested party's payment retroactively to the beginning of the current reimbursement determination cycle. The results of the informal review or formal appeal shall not be applied to the cost report database as a whole or to any other reimbursement amounts influenced by the cost report database as a whole until the next reimbursement determination cycle, if applicable.
(c) Informal review.
(1) An interested party who disputes an action or determination under this chapter may request an informal review under this section. The purpose of an informal review is to provide for the informal and efficient resolution of the matters in dispute. An informal review is not a formal administrative hearing, but is a prerequisite to obtaining a formal administrative hearing and is conducted according to the following procedures:
(A) HHSC Rate Analysis must receive a written request for an informal review by hand delivery, United States (U.S.) mail, or special mail delivery no later than 30 calendar days from the date on the written notification of the adjustments. If the 30th calendar day is a weekend day, national holiday, or state holiday, then the first business day following the 30th calendar day is the final day the receipt of the written request will be accepted. HHSC Rate Analysis will extend this deadline if it receives a written request for the extension by hand delivery, U.S. mail, or special mail delivery no later than 30 calendar days from the date of the written notice of adjustments. The extension gives the requester a total of 45 calendar days from the date of the written notice of adjustment to file a request for an informal review. If the 45th calendar day is a weekend day, national holiday, or state holiday, then the 45th day is considered the next business day following the 45th calendar day. A request for an informal review or extension that is not received by the stated deadline will not be accepted.
(B) An interested party must, with its request for an informal review, submit a concise statement of the specific actions or determinations it disputes, its recommended resolution, and any supporting documentation the interested party deems relevant to the dispute. It is the responsibility of the interested party to render all pertinent information at the time of its request for an informal review.
(C) The written request for the informal review or extension must be signed by an individual legally responsible for the conduct of the interested party, such as the sole proprietor, a partner, a corporate officer, an association officer, a governmental official, a limited liability company member, a person authorized by the applicable DADS Form 2031 for the interested party on file at the time of the request, or a legal representative for the interested party. The administrator or director of the facility or program is not authorized to sign the request unless the administrator or director holds one of these positions. A request for an informal review that is not signed by an individual legally responsible for the conduct of the interested party will not be accepted.
(2) On receipt of a request for informal review:
(A) The lead staff member coordinates the review of
the information submitted by the interested party. Staff may request
additional information from the interested party, which must be received
in writing by the lead staff member no later than 14 calendar days
from the date the interested party receives the written request for
additional information. If the 14th calendar day is a weekend day,
national holiday, or state holiday, then the first business day following
the 14th calendar day is the final day the receipt of the additional
information will be accepted. Information received after 14 calendar
days may not be used in the panel's written decision unless the interested
party receives written approval of the lead staff member to submit
the information after 14 calendar days. A request for an extension
to the 14-calendar-day [14 calendar day] due
date must be received by HHSC Rate Analysis prior to the 14th calendar day.
(B) Within 30 calendar days of the date a written request for informal review that complies with paragraphs (1) and (2) of this subsection is received or the date additional requested information is due or received, whichever is later, the lead staff member will send the interested party its written decision by certified mail, return receipt requested. If the 30th calendar day is a weekend day, national holiday, or state holiday, then the first business day following the 30th calendar day is the final day by which the written decision must be sent.
(d) Administrative hearings. An interested party who
disagrees with the results of an informal review conducted under subsection
(c) of this section may file a formal appeal of the review. The HHSC
Appeals Division, Mail Code W-613, P.O. Box 149030, Austin, Texas
78714-9030, must receive the written request for a formal appeal from
the interested party within 15 calendar days after the interested
party receives the written decision as specified in subsection (c)
of this section. The written request for a formal appeal must state
the basis of the appeal of the adverse action and include a legible
copy of the written decision from the informal review referenced in
subsection (c)(2)(B) of this section. The formal appeal is limited
to the issues that were considered in the informal review process.
The information from the interested party is limited to the pertinent
information considered in the informal review process. Formal appeals
are conducted in accordance with the provisions of [1 TAC
] §§357.481 - 357.498 of this title [357.490
]. If there
is a conflict between the applicable section of [1 TAC]
Chapter 357 of this title (relating to [Medical Fair]
Hearings) and the provisions of this chapter, the provisions of this
chapter prevail.
(e) Lack of standing for formal appeal. Because the
formal appeal is limited to issues considered in the informal review
process, an informal review request that does not comply with subsections
(c)(1)(A) - (C) of this section is not subject to further appeal under
[1 TAC] §§357.481 - 357.498 of this title
[357.490].
§355.111.Administrative Contract Violations.
The Texas Health and Human Services Commission (HHSC) may take the following actions for administrative contract violations.
(1) HHSC grants the following compliance periods for administrative contract violations:
(A) For failure to submit a cost report by the due date, HHSC grants the provider a compliance period of no more than 15 calendar days.
(B) For all other administrative contract violations, HHSC grants the provider a compliance period of no more than 30 calendar days to correct a contract violation. At the end of the compliance period, if HHSC determines that a contract violation is not corrected, but determines that the provider has made substantial progress toward correcting the contract violation, HHSC may grant an additional one-time extension period of up to 15 calendar days.
(2) If the contract violation is not corrected within the compliance period, HHSC imposes vendor hold on payments to the provider.
(3) If a contract violation is not corrected within
60 days from the date the provider is placed on vendor hold, HHSC
may cancel the provider's contract on the 61st day. A provider may
request an appeal hearing of the contract cancellation. Formal appeals
are conducted in accordance with the provisions of §§357.481
- 357.498 of this title (relating to Hearings Under the Administrative
Procedure Act) [40 TAC §§79.1601-79.1610 (relating
to Formal Appeals)]. If there is a conflict between the applicable
section of Chapter 357 of this title (relating to Hearings) [
40 TAC Chapter 79 (relating to Legal Services)] and the provisions
of this chapter, the provisions of this chapter prevail. If the provider
appeals the contract cancellation by HHSC and the adverse action is
sustained by an administrative law judge or judicial proceeding, the
effective date of the contract cancellation is the date specified
in the notice of contract cancellation. Unless otherwise specifically
provided for, HHSC makes no payment for services provided by the provider
after the effective date of the provider's contract cancellation.
HHSC may continue payments for no more than 30 calendar days from
the date HHSC or its designee [DHS] cancels
or fails to renew a provider's contract if HHSC determines that:
(A) reasonable efforts are being made to transfer clients to another provider or to alternate care; and
(B) additional time is needed to effect an orderly transfer of the clients.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on April 16, 2009.
TRD-200901461
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Earliest possible date of adoption: May 31, 2009
For further information, please call: (512) 424-6900