Part 2.
TEXAS ETHICS COMMISSION
Chapter 20.
REPORTING POLITICAL CONTRIBUTIONS AND EXPENDITURES
The Texas Ethics Commission proposes new §20.27 and §20.29
and an amendment to §20.225. New §20.27 authorizes telegram reports
to be filed with the Ethics Commission by electronic transfer. Currently,
those reports may only be hand-delivered or filed by telegram or telephonic
facsimile machine. The campaign finance laws were amended in 1999 to require
certain persons to file campaign finance reports by electronic transfer. Under
the proposed rule, a person required to file a report by electronic transfer
will also be authorized to file telegram reports in the same manner.
New §20.29 authorizes persons required to file campaign finance reports
by electronic transfer to use an alternative method for filing information
about contributions accepted from out-of-state political committees. Currently,
certain documents must be submitted with a campaign finance report if contributions
are accepted from an out-of-state political committee. Under the proposed
rule, certain information from those documents could be submitted by electronic
transfer.
The amendment to §20.225 requires contributions reported in a special
session report to be again reported in the next applicable report.
Karen Lundquist, General Counsel, has determined that for each year of
the first five years these rules are in effect there will be no fiscal implication
for the state and no fiscal implication for local government as a result of
enforcing or administering these rules.
Ms. Lundquist also has determined that for each year of the first five
years these rules are in effect, the public benefit expected as a result of
adoption of the proposed rules are the following: under §20.27, persons
who are required to file campaign finance reports by electronic transfer will
be able to file all campaign finance reports, including telegram reports,
in that manner and the reports will be more accessible to the public; under §20.29,
persons who are required to file campaign finance reports by electronic transfer
will be able to submit information about contributions accepted from out-of-state
political committees in an electronic version rather than a paper copy and
the reports will be more accessible to the public; and under §20.225,
special session reports filed electronically will be easier to process and
the information in those reports will be more accessible to the public. There
is no economic cost to persons who are required to comply with the proposed
rules. Ms. Lundquist has also determined that these rules will have no local
employment impact.
The Texas Ethics Commission invites comments on the proposed rules from
any member of the public. A written statement should be mailed or delivered
to Karen Lundquist, Texas Ethics Commission, P.O. Box 12070, Austin, Texas
78711-2070, or by facsimile (FAX) to (512) 463-5777. A person who wants to
offer spoken comments to the commission concerning the proposed rules may
do so at any commission meeting during the agenda item "Communication to the
Commission from the Public" and during the public comment period at a commission
meeting when the commission considers final adoption of the proposed rule.
Information concerning the date, time, and location of commission meetings
is available by telephoning (512) 463-5800 or, toll free, (800) 325-8506.
Subchapter A. GENERAL RUES
1 TAC §20.27, §20.29
The new sections are proposed under Government Code, Chapter
571, Section 571.062.
The proposal of new §20.27 affects Election Code, Chapter 254, Sections
254.038 and 254.039. The proposal of new §20.29 affects Election Code,
Chapter 253, Section 253.032.
§20.27.Electronic Filing of Telegram Reports.
(a)
A person required to file a report under Section 254.038
or 254.039, Election Code, may file the report by computer diskette, modem,
or other means of electronic transfer if the person uses that method to file
reports under Chapter 254, Election Code.
(b)
A person filing a report under this section must:
(1)
use computer software provided by the commission or computer
software that meets commission specifications for a standard file format;
and
(2)
file the report within the period specified by Section
254.038 or 254.039, Election Code, as applicable.
(c)
A person filing a report under this section by computer
diskette must deliver the diskette to the commission within the period specified
by Section 254.038 or 254.039, Election Code, as applicable.
(d)
A report filed under this section is in lieu of the report
filed by telegram or telephonic facsimile machine or by hand.
§20.29.Information About Out-of-state Committees.
(a)
A person who files a report with the commission by electronic
transfer and who accepts political contributions from an out-of-state political
committee required to file its statement of organization with the Federal
Election Commission shall either:
(1)
enter the out-of-state committee's federal PAC identification
number in the appropriate place on the report; or
(2)
timely file a certified copy of the out-of-state committee's
statement of organization that is filed with the Federal Election Commission.
(b)
A person who files a report with the commission by electronic
transfer and who accepts political contributions from an out-of-state political
committee that is not required to file its statement of organization with
the Federal Elections Commission shall either:
(1)
enter the information required by Section 253.032(a)(1)
or (e)(1), Election Code, as applicable, on the report filed by electronic
transfer; or
(2)
timely file a paper copy of the information required
by Section 253.032(a)(1) or (e)(1), Election Code, as applicable.
(c)
Section 251.007, Election Code, applies to a document filed
under subsection (a)(2) or (b)(2) of this section.
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 March 20, 2000.
TRD-200002033
Tom Harrison
Executive Director
Texas Ethics Commission
Earliest possible date of adoption: April 30, 2000
For further information, please call: (512) 463-5800
1 TAC §20.225
The amendment is proposed under Government Code, Chapter 571,
Section 571.062.
The proposal affects Election Code, Chapter 254, Section 254.0391.
§20.225.Special Session Reports.
(a)
A candidate for a statewide office or for the legislature
who accepts a political contribution during the period that begins on the
date the governor signs a proclamation calling a special legislative session
and ends on the date of final adjournment must file a special session report.
(b)
A special session report must be filed with the commission
no later than the 30th day after the date of final adjournment of the special
session.
(c)
A special session report is a report of contributions only,
not expenditures. Expenditures made during the period covered by a special
session report are required to be reported in the next applicable sworn report
of contributions and expenditures.
(d)
Contributions reported in a special session report are
required to be reported in the next applicable sworn report of contributions
and expenditures
[
(e)
A determination to accept or refuse a political contribution
received during the period covered by a special session report shall be made
no later than the third day after the date the contribution is received.
(f)
A contribution that is refused under subsection (e) of
this section must be returned no later than the 30th day after the date of
final adjournment. A contribution not returned by that date will be deemed
accepted.
(g)
A candidate is not required to file a separate special
session report if another report is due no later than the tenth day after
the date a report required under this section would be due.
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 March 24, 2000.
TRD-200002150
Tom Harrison
Executive Director
Texas Ethics Commission
Earliest possible date of adoption: April 30, 2000
For further information, please call: (512) 463-5800
Chapter 68.
NEGOTIATION AND MEDIATION OF CERTAIN CONTRACT DISPUTES
The Office of the Attorney General ("OAG") proposes new Chapter 68,
Subchapters A-C, §§ 68.1, 68.3, 68.5, 68.7, 68.21, 68.23, 68.25,
68.27, 68.29, 68.31, 68.33, 68.35, 68.37, 68.47, 68.49, 68.51, 68.53, 68.55,
68.57, 68.59, 68.61, relating to procedures for the negotiation and mediation
of certain breach of contract claims asserted by contractors against the State
of Texas pursuant to Section 9 of House Bill 826, 76th. Leg., R.S., Chapter
68 (1999)(codified at Government Code, Chapter 2260). Historically, the State
of Texas has been immune from suit on a contract on the basis of sovereign
immunity. Contractors seeking to assert and recover damages on a breach of
contract claim had to obtain legislative consent to sue and a legislative
appropriation to satisfy any resulting judgment. With the enactment of Chapter
2260, the legislature has established a new and exclusive administrative process
by which a contractor who enters into a written contract with a unit of state
government for goods, services or projects, may pursue a breach of contract
claim for damages. Chapter 2260 requires a contractor who asserts a breach
of contract claim and the contracting unit of state government to attempt
to resolve the contractor's claim and any counterclaim through negotiation,
and authorizes, but does not require, the parties to mediate their dispute.
If the contractor's claim is not resolved in its entirety within the statutory
time frame, the contractor may request a contested case hearing before the
State Office of Administrative Hearings ("SOAH"). Chapter 2260 authorizes
the SOAH administrative law judge to render a non-appealable decision ordering
the unit of state government to pay damages up to $250,000. If the contractor's
claim exceeds $250,000, Chapter 2260 requires the administrative law judge
to issue a written report of his or her findings to the legislature, recommending
that the legislature either appropriate money to pay all or part of a valid
claim or deny such appropriation and withhold consent to sue.
Section 2260.052(c) requires that the OAG and the units of state government
with rulemaking authority adopt rules to establish negotiation and mediation
provisions. The units of state government without rulemaking authority must
follow the rules adopted by the OAG. Section 2260.052(c) also directs the
OAG and the SOAH to provide model rules for negotiation and mediation that
units of state government with rulemaking authority may voluntarily adopt
or modify as they deem appropriate and that units of state government without
rulemaking authority may use as a practice guide. The model rules have no
force and effect in and of themselves and are merely offered as a framework
for agencies with rulemaking authority to consider while drafting their rules.
The model rules can be found by visiting the Site Index at the OAG's website,
http://www.oag.state.tx.us. Additionally, the model rules are published in
the "In Addition" section of this issue of the
Texas
Register
. An interagency dispute resolution working group, co-sponsored
by the OAG and the Center for Public Policy Dispute Resolution at the University
of Texas School of Law and consisting of representatives of state agencies,
legislative offices, and institutions of higher education and representatives
of contractors and vendors who do business with the state, assisted the OAG
and SOAH with the development of both sets of rules.
The proposed rules provide a process sufficiently flexible to permit the
parties to structure a negotiation or mediation in a manner that is most appropriate
for a particular dispute regardless of such variables as the size or organization
of the contracting unit of state government, or the contract's complexity,
subject matter, dollar amount, or method and time of performance.
Proposed Chapter 68 is organized into Subchapter A, B, and C. Subchapter
A (General, §§68.1, 68.3, 68.5, and 68.7.) Section 68.1 states that
Chapter 68 governs the negotiation and mediation of claims of breach of contract
asserted by a contractor against a unit of state government. Section 68.3
defines terms as they relate to this chapter. Section 68.5 provides that the
procedures in Chapter 68 are prerequisites to filing suit under Civil Practice &
Remedies Code, Chapter. 107 and Government Code, Chapter 2260. Section 68.7
advises that the state has not waived sovereign immunity to suit or to liability.
Subchapter B, (Negotiation of Contract Disputes, §§68.21, 68.23,
68.25, 68.27, 68.29, 68.31, 68.33, 68.35, and 68.37.) Section 68.21 sets out
the requirements and procedures of the notice of claim of breach of contract
that contractor must assert. Section 68.23 sets out the requirements and procedures
of the counterclaim that the unit of state government must assert. Section
68.25 announces that the parties must negotiate to settle the dispute. Section
68.27 provides a timetable as it relates the negotiations between the contractor
and the unit of state government. Section 68.29 describes how the parties
may conduct the negotiation. Section 68.31 addresses the parties's settlement
approval procedures. Section 68.33 announces the requirements of any resulting
settlement agreement. Section 68.35 states how the costs of negotiations shall
be handled by the parties. In the event, the breach of contract claim is not
resolved in its entirety Section 68.37 specifies the process by which a contractor
may seek resolution of the dispute by SOAH.
Subchapter C, (Mediation of Contract Disputes §§68.47, 68.49,
68.51, 68.53, 68.55, 68.57, 68.59, and 68.61.) Section 68.47 sets the parameters
for mediation by a neutral third party of breach of contract claims and counterclaims.
Section 68.49 discusses the qualifications, immunities, and duties of a mediator.
Section 68.51 pertains to the confidentiality of a mediation and any resulting
final settlement agreement. Section 68.53 states how the costs of mediation
shall be handled by the parties. Section 68.55 addresses the parties settlement
approval procedures. Section 68.57 details the handling of any resulting settlement
agreement. Section 68.59 states that a final settlement agreement must comply
with the provisions of Section 68.33 of this chapter. Section 68.61 provides
that if mediation does not resolve the dispute the contractor may request
that the claim be referred to SOAH in accordance with Section 68.37 of this
chapter.
Beth Page and Becky Pestana, Assistant Attorneys General, General Counsel
Division, have determined that for each year of the first five years that
the proposed rules are in effect: A. the additional estimated cost to the
state expected as a result of enforcing or administering the rules will be
zero because the rules impose no additional burden on anyone; B. the estimated
reductions in costs to the state and to local governments as a result of enforcing
or administering the rules will be zero because the rules impose no additional
burden on anyone; C. the estimated loss or increase in revenue to the state
or to local governments as a result of enforcing or administering the rules
will be zero because the rules impose no additional burden on anyone.
Ms. Page and Ms. Pestana have also determined that for each year of the
first five years that the proposed rules are in effect, the benefit to the
public will be the more timely and efficient resolution of contract disputes
between contractors and units of state government. The legislature by enacting
Chapter 2260 has determined that such process, with the potential to recover
monetary damages for proven contractual breaches, is of public benefit.
The proposed rules will have no adverse economic effect on small or large
businesses and/or persons that contract with the state. In the past, sovereign
immunity prevented breach of contract claims against the state and the only
process available to the public for resolution of such a claim was to seek
and obtain legislative consent to sue. Chapter 2260 and these proposed rules
will provide a process by which claims for breach of contract and counterclaims
can be asserted and resolved.
The negotiation provisions themselves will impose no economic cost to persons
required to comply with the proposed rules because they do not require the
use of any particular negotiation mode or method. The proposed rules require
only that the parties negotiate to resolve their dispute, and the mode or
method of negotiation can be as simple or as complex as the parties decide.
The proposed rules specify that absent an agreement to the contrary, the parties
are responsible for costs they individually incur in a negotiation or other
alternative dispute resolution process.
Similarly, the mediation provisions themselves will impose no economic
cost to persons required to comply with the proposed rules unless the parties
choose to mediate. If the parties do so, the rules specify that, absent an
agreement to the contrary, the parties will share the costs of the mediator
and each will be responsible for whatever additional costs they decide to
incur for items such as document reproduction, attorneys' fees, experts' fees
and consultants' fees.
The OAG requests comments on the proposed rules from any interested person.
Comments may be submitted, in writing, no later than thirty (30) days after
the date of publication of this notice to Beth Page and Becky Pestana, Assistant
Attorneys General, General Counsel Division, Office of the Attorney General,
Box 12548, Capitol Station, Austin, TX 78701, or faxed to (512) 477- 6040,
or e-mailed to Beth.Page@oag.state.tx.us.
Subchapter A. GENERAL
1 TAC §§68.1, 68.3, 68.5, 68.7
Chapter 68 is proposed under Government Code, Chapter 2260,
Resolution of Certain Contract Claims against the State, § 2260.052,
which authorizes the OAG to adopt rules deemed necessary or advisable to effectuate
Chapter 2260 and which requires the OAG, through coordinated efforts with
the SOAH, to develop rules which shall govern each unit of state government
without rulemaking authority and to develop model rules for negotiation and
mediation under this chapter for voluntary adoption by the units of state
government with rulemaking authority.
The proposed new chapter affects Texas Government Code, Chapter 2260.
§68.1.Purpose and Application.
This chapter governs the negotiation and mediation of a claim of breach
of contract asserted by a contractor against a unit of state government under
the Government Code, Chapter 2260. This chapter is binding upon units of state
government without general rulemaking authority.
§68.3.Definitions.
The following words and terms, when used in this chapter, shall have
the following meaning, unless the context clearly indicates otherwise:
(1)
Chief administrative officer - The commissioner, executive
director, president or other executive officer responsible for the day to
day operations of a unit of state government.
(2)
Contractor - Independent contractor who has entered
into a contract directly with a unit of state government. The term does not
include:
(A)
A contractor's subcontractor, officer, employee, agent,
or other person furnishing goods or services to a contractor;
(B)
An employee of a unit of state government; or
(C)
A student at an institution of higher education.
(3)
Day - A calendar day. If an act is required to
occur on a day falling on a Saturday, Sunday, or holiday, the first working
day which is not one of these day should be counted as the required day for
purpose of this act.
(4)
Parties - The contractor and unit of state government
that have entered into a contract in connection with which a claim of breach
of contract has been filed under this chapter.
(5)
Unit of state government or unit - The state or an
agency, department, commission, bureau, board, office, council, court, or
other entity that is in any branch of state government and that is created
by the constitution or a statute of this state, including a university system
or institution of higher education. The term does not include a county, municipality,
court of a county or municipality, special purpose district, or other political
subdivision of this state.
§68.5.Prerequisites to Suit.
The procedures contained in this chapter are exclusive and required
prerequisites to suit under the Civil Practice & Remedies Code, Chapter
107, and the Government Code, Chapter 2260.
§68.7.Sovereign Immunity.
This chapter does not waive a unit of state government's sovereign
immunity to suit or liability.
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 March 23, 2000.
TRD-200002103
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Earliest possible date of adoption: April 30, 2000
For further information, please call A. G. Younger
(512) 463-2110
1 TAC §§68.21, 68.23, 68.25, 68.27, 68.29, 68.31, 68.33, 68.35, 68.37
Chapter 68 is proposed under Government Code, Chapter 2260,
Resolution of Certain Contract Claims against the State, § 2260.052,
which authorizes the OAG to adopt rules deemed necessary or advisable to effectuate
Chapter 2260 and which requires the OAG, through coordinated efforts with
the SOAH, to develop rules which shall govern each unit of state government
without rulemaking authority and to develop model rules for negotiation and
mediation under this chapter for voluntary adoption by the units of state
government with rulemaking authority.
The proposed new chapter affects Texas Government Code, Chapter 2260.
§68.21.Notice of Claim of Breach of Contract.
(a)
A contractor asserting a claim of breach of contract under
the Government Code, Chapter 2260, shall file notice of the claim as provided
by this section.
(b)
The notice of claim shall:
(1)
be in writing and signed by the contractor or the contractor's
authorized representative;
(2)
be delivered by hand, certified mail return receipt
requested, or other verifiable delivery service, to the officer of the unit
of state government designated in the contract to receive a notice of claim
of breach of contract under the Government Code, Chapter 2260; if no person
is designated in the contract, the notice shall be delivered to the unit's
chief administrative officer; and
(3)
state in detail:
(A)
the nature of the alleged breach of contract, including
the date of the event that the contractor asserts as the basis of the claim
and each contractual provision allegedly breached;
(B)
a description of damages that resulted from the alleged
breach, including the amount and method used to calculate those damages; and
(C)
the legal theory of recovery, i.e., breach of contract,
including the relationship between the alleged breach and the damages claimed.
(c)
The notice of claim shall be delivered no later than 180
calendar days after the date of the event that the contractor asserts as the
basis of the claim; provided, however, that a contractor shall deliver notice
of a claim that was pending before a unit of state government on August 30,
1999, to the unit no later than February 26, 2000.
§68.23.Agency Counterclaim.
(a)
A unit of state government asserting a counterclaim under
the Government Code, Chapter 2260, shall file notice of the counterclaim as
provided by this section.
(b)
The notice of counterclaim shall:
(1)
be in writing;
(2)
be delivered by hand, certified mail return receipt
requested or other verifiable delivery service to the contractor or representative
of the contractor who signed the notice of claim of breach of contract; and
(3)
state in detail:
(A)
the nature of the counterclaim;
(B)
a description of damages or offsets sought, including the
amount and method used to calculate those damages or offsets; and
(C)
the legal theory supporting the counterclaim.
(c)
The notice of counterclaim shall be delivered to the contractor
no later than 90 calendar days after the unit of state government's receipt
of the contractor's notice of claim.
(d)
Nothing herein precludes the unit from initiating a lawsuit
for damages against the contractor in a court of competent jurisdiction.
§68.25.Duty to Negotiate.
The parties shall negotiate in accordance with the timetable set forth
in §68.27 of this title (relating to Timetable) to attempt to resolve
all claims and counterclaims filed under this chapter. No party is obligated
to settle with the other party as a result of the negotiation.
§68.27.Timetable.
(a)
Following receipt of a contractor's notice of claim, the
chief administrative officer of the unit of state government or other designated
representative shall review the contractor's claim and the unit's counterclaim,
if any, and initiate negotiations with the contractor to attempt to resolve
the claim and counterclaim.
(b)
Subject to subsection (c) of this section, the parties
shall begin negotiations within a reasonable period of time, not to exceed
60 calendar days following the later of:
(1)
the date of termination of the contract;
(2)
the completion date, or substantial completion date
in the case of construction projects, in the original contract; or
(3)
the date the unit of state government receives the
contractor's notice of claim.
(c)
The unit of state government may delay negotiations until
after the 180th day after the date of the event giving rise to the claim of
breach of contract by:
(1)
delivering written notice to the contractor that the commencement
of negotiations will be delayed; and
(2)
delivering written notice to the contractor when the
unit is ready to begin negotiations.
(d)
The parties may conduct negotiations according to an agreed
schedule as long as they begin negotiations no later than the applicable deadlines
set forth in subsections (b) or (c) of this section, whichever is applicable.
(e)
Subject to subsection (f) of this section, the parties
shall complete the negotiations that are required by this chapter as a prerequisite
to a contractor's request for contested case hearing no later than 270 days
after the unit of state government receives the contractor's notice of claim.
(f)
The parties may agree in writing to extend the time for
negotiations on or before the 270th day after the unit of state government
receives the contractor's notice of claim. The agreement shall be signed by
representatives of the parties with authority to bind each respective party.
(g)
The contractor may request a contested case hearing before
the State Office of Administrative Hearings (SOAH) pursuant to §68.37
of this title (relating to Request for Contested Case Hearing) after the 270th
day after the unit receives the contractor's notice of claim, or the expiration
of any extension agreed to under subsection (f) of this section.
(h)
The parties may agree to mediate the dispute at any time
before the 270th day after the unit of state government receives the contractor's
notice of claim or before the expiration of any extension agreed to by the
parties pursuant to subsection (f) of this section. The mediation shall be
governed by Subchapter C of this chapter.
(i)
Nothing in this section is intended to prevent the parties
from commencing negotiations earlier than the deadlines established in subsections
(b) and (c) of this section, or from continuing or resuming negotiations after
the contractor requests a contested case hearing before SOAH.
§68.29.Conduct of Negotiation.
(a)
Negotiation is a consensual bargaining process in which
the parties attempt to resolve a claim and counterclaim. A negotiation under
this subchapter may be conducted by any method, technique, or procedure authorized
under the contract or agreed upon by the parties. The parties may conduct
negotiations with the assistance of one or more neutral third parties. The
parties may choose to mediate their dispute in accordance with Subchapter
C of this chapter.
(b)
To facilitate meaningful evaluation and negotiation of
the claims and any counterclaims, the parties may exchange relevant documents
that support their respective claims, defenses, counterclaims or positions.
§68.31.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed prior
to, or at the beginning of negotiations. To the extent possible, the parties
shall select negotiators who are knowledgeable about the subject matter of
the dispute, who are in a position to reach agreement and who can credibly
recommend approval of an agreement.
§68.33.Settlement Agreement.
(a)
A settlement agreement may resolve an entire claim or any
designated and severable portion of a claim.
(b)
To be enforceable, a settlement agreement must be in writing
and signed by representatives of the contractor and the unit of state government
who have authority to bind each respective party.
(c)
A partial settlement does not waive a contractor's rights
under the Government Code, Chapter 2260, as to the parts of the claim that
are not resolved.
§68.35.Costs of Negotiation.
Unless the parties agree otherwise, each party shall be responsible
for its own costs incurred in connection with a negotiation, including, without
limitation, the costs of attorneys' fees, consultant's fees and expert's fees.
§68.37.Request for Contested Case Hearing.
(a)
If a claim of breach of contract is not resolved in its
entirety through negotiation or mediation in accordance with this chapter
on or before the 270th day after the unit receives the notice of claim, or
after the expiration of any extension agreed to by the parties pursuant to §68.27(f)
of this title (relating to Timetable), the contractor may file a request with
the unit of state government for a contested case hearing before SOAH.
(b)
A request for a contested case hearing shall state the
legal and factual basis for the claim, and shall be delivered to the chief
administrative officer of the unit of state government within a reasonable
time after the 270th day or the expiration of any written extension agreed
to pursuant to §68.27(f) of this title.
(c)
The unit of state government shall forward the contractor's
request for contested case hearing to the SOAH within a reasonable period
of time, not to exceed thirty days, after receipt of the request.
(d)
The parties may agree to submit the case to the SOAH before
the 270th day after the notice of claim is received by the unit of state government
if they have achieved a partial resolution of the claim or if an impasse has
been reached in the negotiations and proceeding to a contested case hearing
would serve the interests of justice.
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 March 23, 2000.
TRD-200002104
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Earliest possible date of adoption: April 30, 2000
For further information, please call A. G. Younger
(512) 463-2110
1 TAC §§68.47, 68.49, 68.51, 68.53, 68.55, 68.57, 68.59, 68.61
Chapter 68 is proposed under Government Code, Chapter 2260,
Resolution of Certain Contract Claims against the State, § 2260.052,
which authorizes the OAG to adopt rules deemed necessary or advisable to effectuate
Chapter 2260 and which requires the OAG, through coordinated efforts with
the SOAH, to develop rules which shall govern each unit of state government
without rulemaking authority and to develop model rules for negotiation and
mediation under this chapter for voluntary adoption by the units of state
government with rulemaking authority.
The proposed new chapter affects Texas Government Code, Chapter 2260.
§68.47.Agreement to Mediate.
The parties may agree to mediate a claim through an impartial third
party. For purposes of this subchapter, "mediation" is assigned the meaning
set forth in the Civil Practice and Remedies Code, §154.023. The mediation
is subject to the provisions of the Governmental Dispute Resolution Act, Government
Code, Chapter 2009. The parties may be assisted in the mediation by legal
counsel or other individual.
§68.49.Qualifications and Immunity of the Mediator.
The mediator shall possess the qualifications required under the Civil
Practice and Remedies Code, §154.052, be subject to the standards and
duties prescribed by the Civil Practice and Remedies Code, §154.053 and
have the qualified immunity prescribed by the Civil Practice and Remedies
Code §154.055, if applicable.
§68.51.Confidentiality of Mediation and Final Settlement Agreement.
(a)
A mediation conducted under this subchapter is confidential
in accordance with the Government Code, §2009.054.
(b)
The confidentiality of a final settlement agreement to
which a unit of state government is a signatory that is reached as a result
of the mediation is governed by the Public Information Act, Government Code,
Chapter 552.
§68.53.Costs of Mediation.
Unless the parties agree otherwise in writing, each party shall be
responsible for its own costs incurred in connection with a mediation, including
without limitation, costs of document reproduction, attorney's fees, consultant
fees and expert fees, and the cost of the mediator shall be divided equally
between the parties.
§68.55.Settlement Approval Procedures.
The parties' settlement approval procedures shall be disclosed by the
parties prior to the mediation. To the extent possible, the parties shall
select representatives who are knowledgeable about the subject matter of the
dispute, who are in a position to reach agreement, and who can credibly recommend
approval of an agreement.
§68.57.Initial Settlement Agreement.
Any settlement agreement reached during a mediation shall be signed
by representatives of the contractor and the unit of state government, and
shall describe any procedures that the parties must follow to obtain final
and binding approval of the agreement.
§68.59.Final Settlement Agreement.
A final settlement agreement reached during or as a result of a mediation
that resolves an entire claim or counterclaim, or any designated and severable
portion of a claim or counterclaim, shall comply with §68.33 of Subchapter
B of this chapter (relating to Settlement Agreement).
§68.61.Referral to State Office of Administrative Hearings.
If mediation does not resolve the claim to the satisfaction of the
contractor, the contractor may request that the claim be referred to SOAH
in accordance with §68.37 of Subchapter B of this chapter (relating to
Request for Contested Case Hearing.)
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 March 23, 2000.
TRD-200002105
Elizabeth Robinson
Assistant Attorney General
Office of the Attorney General
Earliest possible date of adoption: April 30, 2000
For further information, please call A. G. Younger
(512) 463-2110
Chapter 355.
MEDICAID REIMBURSEMENT RATES
The Texas Health and Human Services Commission (HSSC) proposes new §355.112,
concerning Attendant Compensation Rate Enhancement; and proposes amendments
to §355.503, concerning Reimbursement Methodology for the Community-based
Alternatives Waiver Program--a 1915(c) Medicaid Home and Community-based Waiver
for Aged and Disabled Adults Who Meet Criteria for Alternatives to Nursing
Facility Care: 1997 and Subsequent Cost Reports; §355.505, concerning
Reimbursement Methodology for the Community Living Assistance and Support
Services Waiver Program--a 1915(c) Medicaid Home and Community-based Waiver
for Persons with Related Conditions: 1997 and Subsequent Cost Reports; §355.5902,
concerning Reimbursement Methodology for Primary Home Care and Family Care
Services: 1997 and Subsequent Cost Reports; and §355.6907, concerning
Reimbursement Methodology for Day Activity and Health Services: 1997 and Subsequent
Cost Reports, in its Medicaid reimbursement rates chapter. The purpose of
the new section and the amendments is to implement appropriations rider 37
regarding community care programs passed by the 76th legislature. The proposal
establishes procedures for providers to obtain additional funds for increased
compensation to attendants in select community care programs (Community Based
Alternatives Waiver, Community Living Assistance and Support Services, Primary
Home Care, Day Activity and Health Services, Deaf-Blind Multiple Disabilities
Waiver, and Residential Care). Providers receiving the additional funds must
demonstrate compliance with spending the increased funds on attendant compensation.
If a participating provider's allowable attendant compensation times 1.07
is less than the revenue accrued, the difference will be recouped by the Texas
Department of Human Services (DHS). Providers who choose not to participate
will have their total direct care staff rate increase each year limited to
adjustments necessitated by increases in the minimum wage. The proposal modifies
the cost areas of these programs to separate the new attendant compensation
cost area from other cost areas. Changes to the Day Activity and Health Services,
Primary Home Care, and Residential Care programs are proposed to combine some
of the cost areas.
The department is simultaneously proposing related policy in DHS's Chapters
20, 46, 47, and 98 in this issue of the
Texas Register
.
Don Green, chief financial officer, has determined that for the first five-year
period the sections are in effect there will be fiscal implications for state
government as a result of enforcing or administering the sections. The effect
on state government for the first five-year period the sections will be in
effect is an estimated additional cost of $10,400,000 in fiscal year (FY)
2001; $10,900,000 in FY 2002; $11,500,000 in FY 2003; $12,000,000 in FY 2004;
and $12,600,000 in FY 2005. There will be no fiscal implications for local
government as a result of enforcing or administering the sections.
Commissioner Don Gilbert has determined that for each year of the first
five years the sections are in effect the public benefit anticipated as a
result of enforcing the sections will a mechanism for increasing compensation
to attendants in certain community care programs. There will be no adverse
economic effect on small or micro businesses, because no changes in practice
are required of any businesses. The proposal will provide some additional
funding for providers that choose to increase the compensation paid to attendants
in their programs. There is no anticipated economic cost to persons who are
required to comply with the proposed section.
The department will hold a public hearing on the proposal on Monday, April
17, 2000, at 1:30 in the John H. Winters Building Public Hearing Room, first
floor, East Tower, 701 West 51st Street, Austin.
For further information, contact local offices of DHS or Carolyn Pratt
(512) 438-4057 in DHS's Rate Analysis Department. Written comments on the
proposal may be submitted to Supervisor, Rules and Handbooks Unit-179, Texas
Department of Human Services E-205, P.O. Box 149030, Austin, Texas 78714-9030,
within 30 days of publication in the
Texas Register
.
Subchapter A. COST DETERMINATION PROCESS
1 TAC §355.112
The new section is proposed under the Government Code, §531.033,
which authorizes the commissioner of the Health and Human Services Commission
to adopt rules necessary to carry out the commission's duties, and §531.021(b),
which establishes the commission as the agency responsible for adopting reasonable
rules governing the determination of fees, charges, and rates for medical
assistance payments under Chapter 32, Human Resources Code.
The new section implements the Government Code, §§531.033 and
531.021(b).
§355.112.Attendant Compensation Rate Enhancement.
(a)
Eligible programs. Providers contracted in the Primary
Home Care, including Family Care (PHC/FC); Day Activity and Health Services
(DAHS); Residential Care (RC); Community Living Assistance and Support Services
(CLASS) - Direct Service Agency; Community Based Alternatives (CBA) - Home
and Community Support Services (HCSS); Deaf-Blind Multiple Disabilities Waiver;
and CBA - Assisted Living/Residential Care (AL/RC) programs are eligible to
participate in the attendant compensation rate enhancement.
(b)
Definition of attendant. An attendant is the unlicensed
caregiver providing direct assistance to the clients with Activities of Daily
Living (ADL) and Instrumental Activities of Daily Living (IADL). In the case
of DAHS, RC, and AL/RC programs, the attendant must perform attendant functions
at least 80% of his or her total time worked. Other staff in these settings
not providing attendant services at least 80% of their total time worked are
not considered attendants. Time studies should be performed for staff that
are not full-time attendants to determine if a staff member meets this 80%
criteria. Attendants do not include the director, administrator, assistant
director, assistant administrator, clerical and secretarial staff, professional
staff, other administrative staff, licensed staff, attendant supervisors,
cooks and kitchen staff, maintenance and ground keeping staff, and laundry
and housekeeping staff. An attendant also includes a driver in the DAHS program.
(c)
Attendant compensation cost center. This cost center will
include employee compensation, contract labor costs, and personal vehicle
mileage reimbursement for attendants as defined in subsection (b) of this
section.
(1)
Attendant compensation is the allowable compensation for
attendants defined in §355.103(b)(1) of this title (relating to Compensation
of Employees) and required to be reported as either salaries and/or wages,
including payroll taxes and workers' compensation, or employee benefits. Benefits
required by §355.103(b)(1)(A)(iii) of this title (relating to Specifications
for Allowable and Unallowable Costs) to be reported as costs applicable to
specific cost report line items, except as noted in paragraph (3) of this
subsection, are not to be included in this cost center.
(2)
Contract labor refers to personnel for whom the contracted
provider is not responsible for the payment of payroll taxes, such as FICA,
Medicare, and federal and state unemployment insurance, and who perform tasks
routinely performed by employees where allowed by program rules. Allowable
contract labor costs are defined in §355.103(b)(2)(C) of this title (relating
to Specifications for Allowable and Unallowable Costs).
(3)
Mileage reimbursement paid to the attendant for the
use of his or her personal vehicle and which are not subject to payroll taxes
are considered compensation for this cost center.
(d)
Rate year. The rate year begins on the first day of September
and ends on the last day of August of the following year.
(e)
Open enrollment. Open enrollment begins on the first day
of July and ends on the last day of that same July preceding the rate year
for which payments are being determined.
(f)
Enrollment contract amendment. All contracted providers
must submit an enrollment contract amendment during the open enrollment period.
On the enrollment contract amendment the provider must specify for each contract
his desire to participate or his desire not to participate. The participating
provider must specify for each program if he wishes to have all participating
contracts be considered as a group or individually for purposes related to
the attendant compensation rate enhancement. The provider also must submit
with the contract amendment all required documentation to the Texas Department
of Human Services (DHS) in a manner specified by DHS. DHS will place on vendor
hold providers failing to submit an acceptable enrollment contract amendment
by the end of the open enrollment period until DHS receives and processes
an acceptable enrollment contract amendment.
(g)
New contracts. For the purposes of this section, for each
rate year a new contract is defined as a contract delivering its first day
of service to a DHS client on or after the first day of the open enrollment
period, as defined in subsection (e) of this section, for that rate year.
Contracts that underwent a contract assignment are not considered new contracts.
New contractors who must complete the enrollment contract amendment specified
in subsection (f) of this section within 30 days of notification by DHS. DHS
will place on vendor hold contracted providers failing to submit an acceptable
enrollment contract amendment within 30 days of notification until DHS receives
and processes an acceptable enrollment contract amendment. Based on the enrollment
contract amendment information received, the contracted provider's attendant
compensation rate will be adjusted effective on the sixty-first day of the
contract with DHS. New facilities will receive the attendant compensation
rate as specified in subsection (l) of this section for the first 60 days
of their contract with DHS.
(h)
Attendant Compensation Report submittal requirements. Attendant
Compensation Reports must be submitted by participating contracted providers
as follows.
(1)
Annual report. Participating contracted providers will
provide DHS, in a method specified by DHS, an annual Attendant Compensation
Report reflecting the activities of the provider while delivering contracted
services from the first day of the rate year through the last day of the rate
year. This report must be submitted for each participating contract if the
provider requested participation individually for each contract, or if the
provider requested participation as a group the report must be submitted as
a single aggregate report covering all participating contracts within one
program of the provider. The aggregate report must include terminated, excluded
from participation, new and contract assignment contracts, as defined in subparagraphs
(A)-(E) of this paragraph, which were part of the group for any portion of
the rate year. This report will be used as the basis for determining compliance
with the spending requirements and recoupment amounts as described in subsection
(s) of this section. Contracted providers failing to submit an acceptable
annual Attendant Compensation Report within 30 days of the end of the rate
year will be placed on vendor hold until such time as an acceptable report
is received and processed by DHS. Contracted providers participating for less
than a full year must provide attendant compensation reports as follows.
(A)
A participating provider whose contract is terminated either
voluntarily or involuntarily before the end of the rate year must submit an
Attendant Compensation Report within 30 days after the date recognized by
DHS as the contract termination date, covering the period from the beginning
of the rate year to the date recognized by DHS as the contract termination
date. This report will be used as the basis for determining recoupment as
described in subsection (s) of this section.
(B)
In cases where a participating provider changes ownership
through a contract assignment from one legal entity to another legal entity,
the owner prior to the change of ownership must submit an Attendant Compensation
Report within 30 days from the date of the contract assignment as determined
by DHS, covering the period from the beginning of the rate year to the effective
date of the contract assignment as determined by DHS. The owner after the
change of ownership must submit an Attendant Compensation report within 30
days of the end of the rate year, covering the period from the effective date
of the contract assignment as determined by DHS to the end of the rate year.
This report will be used as the basis for determining recoupment as described
in subsection (s) of this section.
(C)
A participating provider who is excluded from participation
as per subsection (u) of this section must submit an Attendant Compensation
Report within 30 days from the date of notification of the exclusion, covering
the period from the beginning of the rate year to the date of exclusion as
determined by DHS. DHS will use this report as the basis for determining recoupment
as described in subsection (s) of this section.
(D)
A participating provider who voluntarily withdraws from
participation as per subsection (x) of this section must submit an Attendant
Compensation Report within 30 days from the date of withdrawal as determined
by DHS, covering the period from the beginning of the rate year through the
date of withdrawal as determined by DHS. DHS will use this report as the basis
for determining recoupment as described in subsection (s) of this section.
(E)
A participating provider who is a new contract as per subsection
(g) of this section must submit an Attendant Compensation Report within 30
days of the end of the rate year, covering the period from the sixty-first
day of the contract as determined by DHS through the end of the rate year.
(2)
Six-month report. Participating contracted providers
will provide DHS, in a method specified by DHS, a six-month Attendant Compensation
Report reflecting the activities of the provider while delivering contracted
services from the first day of the rate year through the last day of February
of the rate year. DHS will place on vendor hold contracted providers failing
to submit an acceptable six-month Attendant Compensation Report within 30
days of the last day of February of the rate year until DHS receives and processes
an acceptable report. The report must be submitted for each participating
contract if the provider requested participation individually for each contract;
or, if the provider requested participation as a group, the report must be
submitted as a single aggregate report covering all participating contracts
within one program of the provider. If the provider requested participation
as a group the report must be submitted as a single aggregate report covering
all participating contracts within one program of the provider. Participating
providers will use this six-month report to assist them in determining their
level of compliance with the spending requirements and to take any appropriate
action necessary to come into compliance with the spending requirements. The
provider is responsible for the management of attendant compensation expenditures
in compliance with the spending requirements stated in subsection (s) of this
section.
(3)
Other reports. DHS may require other reports from
all contracts as needed.
(4)
Vendor hold. DHS will place on hold the vendor payments
for any contractor who does not submit an Attendant Compensation Report completed
in accordance with all applicable rules and instructions by the due dates
described in this subsection. This vendor hold will remain in effect until
an acceptable Attendant Compensation Report is received by DHS.
(i)
Attendant Compensation Report contents. Each Attendant
Compensation Report will include the following information:
(1)
attendant hours worked for attendants as defined in subsection
(b) of this section for the reporting period;
(2)
attendant compensation cost center costs for attendants
as defined in subsection (b) of this section for the reporting period;
(3)
total units of service accrued during the reporting
period; and
(4)
other information determined necessary by DHS.
(j)
Completion of compensation reports. All Attendant Compensation
Reports must be completed in accordance with the provisions of §§355.102-355.105
of this title (relating to General Principles of Allowable and Unallowable
Costs, Specifications for Allowable and Unallowable Costs, Revenues, and General
Reporting and Documentation Requirements, Methods, and Procedures) and may
be reviewed or audited in accordance with §355.106 of this title (relating
to Basic Objectives and Criteria for Audit and Desk Review of Cost Reports).
(k)
Enrollment. Providers choosing to participate in the attendant
compensation rate enhancement must submit to DHS a signed enrollment contract
amendment as described in subsection (f) of this section. Participation is
determined separately for each program specified in subsection (a) of this
section. Participation will remain in effect, subject to availability of funds,
until the provider notifies DHS, in accordance with subsection (x) of this
section, that it no longer wishes to participate or until DHS excludes the
contract from participation for reasons outlined in subsection (u) of this
section. Contracts voluntarily withdrawing from participation will have their
participation end effective with the date of withdrawal as determined by DHS.
Contracts excluded from participation will have their participation end effective
on the date determined by DHS.
(l)
Determination of attendant compensation rate component
for participating contracts. For each of the programs identified in subsection
(a) of this section an attendant compensation rate component will be calculated
for participating contracts from subsection (k) of this section and for the
first 60 days of a new contract from subsection (g) of this section as follows.
(1)
Determine for each contract included in the cost report
data base used in the determination of rates in effect on September 1, 1999,
the attendant compensation cost center from subsection (c) of this section.
(2)
Adjust the cost center data from paragraph (1) of
this subsection, as specified in §355.108 of this title (relating to
Determination of Inflation Indices), to inflate the costs to the prospective
rate year.
(3)
For each contract included in the cost report data
base used in the determination of rates in effect on September 1, 1999, divide
the result from paragraph (2) of this subsection by the units of service and
multiply the result by 1.044 for all programs in subsection (a) of this section
except for RC and AL/RC which are multiplied by 1.07. The result is the attendant
compensation rate component for participating contracts and the first 60 days
of new contracts.
(4)
The cost base from paragraph (1) of this subsection
used in determining the attendant compensation rate component will not change
over time, except for adjustments for inflation from paragraph (2) of this
subsection. DHS may recommend adjustments to the rates in accordance with §355.109
of this title (relating to Adjusting Reimbursement When New Legislation, Regulations,
or Economic Factors Affect Costs).
(m)
Determination of attendant compensation rate component
for nonparticipating contracts. For each of the programs identified in subsection
(a) of this section DHS will calculate an attendant compensation rate component
will be calculated for nonparticipating contracts as follows.
(1)
Determine for each contract included in the cost report
data base used in determination of rates in effect on September 1, 1999, the
attendant compensation cost center from subsection (c) of this section.
(2)
Adjust the cost center data from paragraph (1) of
this subsection in order to account for inflation utilizing the inflation
factors used in the determination of the September 1, 1999 rates.
(3)
For each contract included in the cost report data
base used in determination of rates in effect on September 1, 1999, divide
the result from paragraph (2) of this subsection by the units of service and
multiply the result by 1.044 for all programs in subsection (a) of this section
except for RC and AL/RC which is multiplied by 1.07. The result is the attendant
compensation rate component for nonparticipating contracts.
(4)
The attendant compensation rate component will remain
constant over time, except for adjustments necessitated by increases in the
minimum wage. In such cases, adjustments to the nonparticipating rates are
limited to ensuring that these rates are adequate to cover mandated minimum
wage levels.
(n)
Determination of attendant compensation rate enhancements.
DHS will determine attendant compensation rate enhancement increments associated
with each enhanced attendant compensation level. The attendant compensation
rate enhancement increments will be determined by using data from sources
such as cost reports, surveys, and/or other relevant sources. The attendant
compensation rate enhancement increments will be determined by taking into
consideration quality of care, labor market conditions, economic factors,
and budget constraints. The attendant compensation rate enhancement increments
will be determined on a per-unit-of-service basis applicable to each program
or service.
(o)
Enhanced attendant compensation. Participating contracts
desiring to provide attendant compensation above the level included in subsection
(l) of this section may request attendant compensation increments from an
array of enhanced attendant compensation options and associated add-on payments
determined in subsection (n) of this section during open enrollment.
(p)
Granting additional attendant compensation rate enhancement
increments. DHS divides all requests for attendant compensation rate enhancement
increments into two groups: pre-existing rate enhancement increments which
providers requested to carry over from the prior year and newly requested
rate enhancement increments. Newly requested rate enhancement increments may
be requested from providers that were nonparticipants in the prior year or
by providers which were participants during the prior year desiring to be
granted additional rate enhancement increments. Using the process described
herein, DHS first determines the distribution of carry-over rate enhancement
increments. If funds are available after the distribution of carry- over rate
enhancement increments, DHS determines the distribution of newly requested
rate enhancement increments as follows:
(1)
DHS determines projected units of service for contracts
requesting each enhancement increment and multiplies this number by the enhancement
rate add-on amount associated with that enhancement increment as determined
in subsection (n) of this section.
(2)
DHS compares the sum of the products from paragraph
(1) of this subsection to available funds.
(A)
If the product is less than or equal to available funds,
all requested enhancements are granted.
(B)
If the product is greater than available funds, enhancements
are granted in a proportional manner. Based upon an examination of existing
compensation levels and compensation needs, DHS may grant certain enhancement
options priority for proportional distribution.
(q)
Notification of granting of enhancements. Participating
contracts are notified, in a manner determined by DHS, as to the disposition
of their request for additional attendant compensation rate enhancement increments.
(r)
Total attendant compensation rate for participating contracts.
Each participating contract will receive an attendant compensation rate equal
to the attendant compensation rate component for participating contracts from
subsection (l) of this section, plus any additional attendant compensation
rate enhancement payments granted to the contract.
(s)
Spending requirements for participating contracts. DHS
will determine from the Attendant Compensation Report, as specified in subsection
(h) of this section, the amount of attendant compensation spending per unit
of service delivered. The providers' compliance with the spending requirement
is determined based on the total attendant compensation spending as reported
on the Attendant Compensation Report for each participating contract if the
provider requested participation individually for each contract. If the provider
specified that he wished to have all participating contracts be considered
as a group for purposes related to the attendant compensation rate enhancement,
as specified in subsection (f) of this section, compliance with the spending
requirement is based on the total attendant compensation as reported on the
single aggregate attendant compensation report described in subsection (h)
of this section. Compliance with the spending requirement is determined separately
for each program specified in subsection (a) of this section. DHS will calculate
recoupment, if any, as follows.
(1)
The attendant compensation spending per unit of service
will be multiplied by 1.07 to determine the adjusted attendant compensation
per unit of service.
(2)
The adjusted attendant compensation per unit of service
from paragraph (1) of this subsection will be subtracted from the accrued
attendant compensation revenue to determine the amount to be recouped by DHS.
If the adjusted attendant compensation per unit of service is greater than
or equal to the accrued attendant compensation revenue per unit of service,
there is no recoupment.
(3)
The amount paid for attendant compensation per unit
of service after adjustments for recoupment must not be less than the amount
determined in subsection (m) of this section.
(t)
Notification of recoupment. Providers will be notified
in a manner specified by DHS within 90 days of the due date of their annual
Attendant Compensation Report as described in subsection (h)(1) of this section
or within 90 days of the date the report is submitted, whichever is later,
of the amount to be repaid to DHS. If a subsequent review or audit results
in audit adjustments to the annual Attendant Compensation Report that changes
the amount to be repaid to DHS, the provider will be notified in writing of
the adjustments and the adjusted amount to be repaid to DHS. DHS will recoup
any amount owed from a provider's vendor payment(s) following the date of
the notification letter.
(u)
Exclusion from participation. If the attendant compensation
report described in subsection (h)(1) of this section indicates that the participating
provider did not spend 90% of the accrued total attendant compensation rate
described in subsection (r) of this section on attendant compensation spending
as determined from subsection (s) of this section, DHS will notify the provider
of the noncompliance. If the subsequent six-month compensation report from
subsection (h)(2) of this section indicates that the provider has not spent
90% of the attendant compensation revenue on attendant compensation spending,
the contract will be excluded from participation in the attendant rate enhancement
effective immediately upon notice of failure to meet the spending requirement.
The contract will be excluded from participation in the attendant compensation
rate enhancement and will remain a nonparticipant for the remainder of the
rate year plus an additional rate year.
(v)
Contract terminations.
(1)
For terminating participants who are not part of a group
of participating contracts as defined in subsection (f) of this section, DHS
will place a vendor hold on the payments of the contracted provider until
DHS receives an acceptable Attendant Compensation Report, as specified in
subsection (h)(1)(A) of this section, and funds identified for recoupment
from subsection (s) of this section are repaid to DHS. DHS will recoup any
amount owed from the provider's vendor payments that are being held. In cases
where funds identified for recoupment cannot be repaid by the terminating
provider's last vendor payment, the responsible entity from subsection (cc)
of this section will be jointly and severally liable for any additional payment
due to DHS. Failure to repay the amount due or submit an acceptable payment
plan within 60 days of notification will result in placement of a vendor hold
on all DHS contracts controlled by the responsible entity and will bar the
responsible entity from enacting new contracts with DHS until repayment is
made in full.
(2)
For terminating participants that are a part of a
group of participating contracts in a program, the Attendant Compensation
Report required in subsection (h)(1)(A) of this section will be used, as specified
in subsection (s) of this section, to determine compliance with the spending
requirements.
(w)
Contract assignments. The following applies to contract
assignments.
(1)
Participation in the attendant compensation rate enhancement
confers to the provider or legal entity accepting the contract assignment.
(2)
When the contract assignment is a change only in the
organizational structure or name of the legal entity, the provider or legal
entity accepting the contract assignment is responsible for the reporting
requirements in subsection (h) of this section and for any recoupment amount
owed to DHS for the entire rate year identified, even if part of the rate
year was under the responsibility of the previous legal entity.
(3)
When the contract assignment is an ownership change
from one legal entity to a different legal entity and the prior legal entity
has no other remaining active participating contracts in a program:
(A)
DHS will place a vendor hold on the payments of the existing
contracted provider until DHS receives an acceptable Attendant Compensation
Report specified in subsection (h)(1)(B) of this section and until funds identified
for recoupment from subsection (s) of this section are repaid to DHS. DHS
will recoup any amount owed from the provider's vendor payments that are being
held.
(B)
In cases where funds identified for recoupment cannot be
repaid by the existing contracted provider's vendor payments that are being
held, the responsible entity from subsection (cc) of this section will be
jointly and severally liable for any additional payment due to DHS. Failure
to repay the amount due or submit an acceptable payment plan within 60 days
of notification will result in placement of a vendor hold on all DHS contracts
controlled by the responsible entity and will bar the responsible entity from
enacting new contracts with DHS until repayment is made in full.
(4)
When the contract assignment is an ownership
change from one legal entity to a different legal entity and the contract
is a part of a group of participating contracts in a program, DHS will use
the Attendant Compensation Report, which is required in subsection (h)(1)(B)
of this section, as specified in subsection (s) of this section to determine
compliance with the spending requirement.
(x)
Voluntary withdrawal. Participating contracts wishing to
withdraw from the attendant compensation rate enhancement must notify DHS
in writing by certified mail. Contracts voluntarily withdrawing must remain
nonparticipants for the remainder of the rate year and are excluded from participation
the following rate year.
(y)
Adjusting attendant compensation requirements. Providers
that determine that they will not be able to meet their attendant compensation
requirements may request a reduction to their attendant compensation requirements
and associated enhancement payment. These requests will be effective the first
of the month following 30 days from the receipt of the request.
(z)
All other rate components. All other rate components will
continue to be calculated as specified in the program-specific reimbursement
methodology and will be uniform for all providers.
(aa)
Failure to document spending. Undocumented attendant compensation
expenses will be disallowed and will not be used in the determination of the
attendant compensation spending per unit of service in subsection (s) of this
section.
(bb)
Appeals. Subject matter of informal reviews and formal
appeals is limited as per §355.110 of this title (relating to Informal
Reviews and Formal Appeals).
(cc)
Responsible entities. The contracted provider, owner,
or legal entity which received the attendant compensation rate enhancement
is responsible for the repayment of the recoupment amount.
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 March 17, 2000.
TRD-200002012
Marina Henderson
Executive Deputy Commissioner
Texas Health and Human Services Commission
Earliest possible date of adoption: April 30, 2000
For further information, please call: (512) 438-3108
Subchapter C. REPORTING REQUIREMENTS FOR A CANDIDATE
not to be reported in any other report
].
Part 3.
OFFICE OF THE ATTORNEY GENERAL
Subchapter B. NEGOTIATION OF CONTRACT DISPUTES
Subchapter C. MEDIATION OF CONTRACT DISPUTES
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Subchapter E. COMMUNITY CARE FOR AGED AND DISABLED