TITLE 1.ADMINISTRATION

Part 4. OFFICE OF THE SECRETARY OF STATE

Subchapter I. IMPLEMENTATION OF THE HELP AMERICA VOTE ACT OF 2002

The Office of the Secretary of State, Elections Division, proposes a new rule, §81.171, concerning creation of an administrative complaint procedure to comply with §402 of the federal Help America Vote Act of 2002 ("HAVA").

Ann McGeehan, Director of Elections, has determined that for the first five-year period that this rule is in effect, there will be no fiscal implications to state or local governments as a result of enforcing or administering the rule.

Ms. McGeehan has also determined that for each year of the first five years that the rule is in effect, the public benefit anticipated as a result of enforcing the rule will be: (1) for the Secretary of State to provide citizens with a grievance process for violations of HAVA and (2) for the state to comply with §402 of HAVA as necessary to receive federal requirements payments. There will be no effect on small or micro-businesses. There are no anticipated economic costs to persons who are required to comply with the proposed rule.

Comments on the proposal may be submitted to Ann McGeehan, Director of Elections, Office of the Secretary of State, P.O. Box 12060, Austin, Texas 78711-2060.

The new rule is proposed pursuant to §13, House Bill 1549, 78th Legislative Session, 2003, which requires the Secretary of State to adopt rules establishing an administrative complaint procedure to remedy grievances. The rule must comply with §402 of HAVA.

No other article, statute, or code is affected by this proposed new rule.

§81.171.Administrative Complaint Procedures for Violations of Title III of the Help America Vote Act of 2002.

(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.

(1) HAVA--The federal Help America Vote Act.

(2) Party or parties--The person making the complaint and any political subdivisions, office-holders, or individuals against whom the complaint is being alleged.

(3) Secretary of State--The currently appointed Secretary of State or his or her designee.

(b) A person who believes that a violation of Title III of the Help America Vote Act of 2002 has occurred may file a complaint with the secretary of state. Violations of Title III include but are not limited to:

(1) failure to comply with federal voting system standards, as set out in §301(a) of HAVA, including standards for accessibility for individuals with disabilities and alternate language accessibility;

(2) failure to comply with provisional voting procedures in an election as required by §302(a) of HAVA;

(3) failure to create statewide voter registration system in the manner set out in HAVA; and

(4) failure to post required voter information at the polling place as required by §302(b).

(1) be in writing, signed and notarized by the complainant.

(2) include the full name, telephone number, and mailing address of the complainant.

(3) include a description of the alleged violation of Title III sufficient to apprise the Secretary of State of the nature and specifics of the complaint.

(4) include a statement requesting a hearing on the record if desired.

(d) The complaint shall be reviewed by an employee of the Secretary of State to determine if the complaint meets the requirements as to form and content and identifies a violation of Title III of HAVA. The complaint shall also be reviewed to determine whether it alleges a Title III violation that falls within the direct authority of the Secretary of State or a Title III violation that falls within the authority of another jurisdiction. If the complaint does not meet the requirements as to form and content, it shall be returned to the complainant with an explanation as to its insufficiency. If the complaint meets the requirements, it shall be assigned a unique number and receipt date. Notice that the complaint has been accepted shall be mailed to all parties.

(e) Within 60 days of the receipt of the complaint by the Secretary of State, the Secretary of State shall review the alleged violation and make an initial determination as to whether there is a violation of Title III of HAVA.

(f) If the Secretary of State determines that there is a violation of a provision of Title III of HAVA, the Secretary of State shall inform the complainant in writing and provide the appropriate remedy. The remedy may not include any award of monetary damages, costs or attorney fees, and may not include the invalidation of any election or a determination of the validity of any ballot or vote.

(g) If the Secretary of State determines that no violation of a provision of Title III of HAVA has occurred, the Secretary of State shall inform the complainant in writing. The notice to the complainant shall inform the complainant of his or her right to a hearing.

(h) Upon the initial determination of the Secretary of State, the complainant may make a written request for a hearing on the record, which shall be held at the Secretary of State's offices in Austin, unless otherwise determined by the Secretary of State. If the nature of the complaint concerns a matter over which the Secretary of State has direct authority, the hearing shall be conducted by the Secretary of State. The hearing shall proceed as follows:

(1) The hearing shall be tape recorded, and the tape shall constitute the official record of the hearing.

(2) Written notice of the hearing shall be given to all parties including the date, time, and place of the hearing, and notice shall be sent to the mailing addresses set out in the complaint. Notice must be sent at least seven (7) days prior to the date of the hearing.

(3) If, in the discretion of the Secretary of State, the hearing is held via conference telephone call or video teleconferencing, the notice shall so state and further provide for the mechanics of the teleconference.

(4) The hearing may only be continued to a new date upon a determination of the Secretary of State that finds good cause, and in no event may it be continued more than once, or in no event may it be continued so as to make it difficult to issue a final determination within ninety (90) days of the filing of the complaint.

(5) At the hearing, each party shall be given an opportunity to explain their positions, and present evidence to support their position. At the sole discretion of the Secretary of State, this presentation may include documents, witnesses, oral argument, and tangible items relevant to the determination of the complaint. The record of the hearing shall consist of the written complaint, the written response(s), the tape of the hearing, and any documents/exhibits introduced at the hearing.

(6) If the Secretary of State permits witnesses to testify, they must be sworn in prior to their testimony being given.

(7) If a complainant fails to appear at the hearing, the complaint shall be dismissed with prejudice.

(i) If the Secretary of State fails to make a final determination within 90 days after the original receipt of the complaint, or an extended period if the Secretary of State determines that more time is required to resolve the issue and the complainant agrees to the extension, the complainant may request resolution of the complaint under an alternative dispute resolution process as agreed upon by the Secretary of State and the parties to the dispute.

(j) The Secretary of State may consolidate complaints filed under this rule if the Secretary of State determines that the complaints concern the same violation.

(k) Complaints, information filed with the Secretary of State in connection with complaints, and the Secretary of State's response to the complaint are public records.

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 August 18, 2003.

TRD-200305357

Geoffrey S. Connor

Assistant Secretary of State

Office of the Secretary of State

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 463-5650

Part 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

Chapter 352. QUALITY ASSURANCE FEE FOR LONG-TERM CARE FACILITIES

1 TAC §§352.1 - 352.5

The Health and Human Services Commission (HHSC) proposes amendments to §352.1 concerning the purpose and duration of chapter 352, §352.2 concerning definitions, §352.3, concerning quality assurance fee, §352.4, concerning required reports, and §352.5, concerning payment and collection of the quality assurance fee. In accordance with SB 1862, 78th Legislature, Regular Session, the amendments implement a statutorily required change that: makes the quality assurance fee applicable to facilities owned by the Texas Department of Mental Health and Mental Retardation (MHMR) beginning with the state fiscal year ending on August 31, 2003; requires payment by MHMR of fees for those facilities by that date; expands the possible uses of the funds; changes the definition of patient days; and, changes the time for facilities to file required reports from the 10th to the 20th day after the last day of a month. The amendments also increase the quality assurance fee from 5.5 to 6 percent beginning September 1, 2003, in accordance with projected revenues and related federal matching funds specified in the General Appropriations Act for the 2004-2005 biennium.

The quality assurance fee was originally established in 2001 as a result of the enactment of SB 1839 by the 77th Legislature which added subchapter H to chapter 252, Health and Safety Code. On June 20, 2003, amendments to chapter 252 became effective (SB 1862, 78th Legislature, Regular Session) which require proposed rule amendments making the quality assurance fee applicable to MHMR facilities from the current state fiscal year, requiring MHMR to make payment by August 31, 2003, and changing the definition of patient days and the time for facilities to file required reports. In addition, projected revenues and related federal matching funds specified in the 2004-2005 General Appropriations Act make necessary a proposed rule amendment changing the quality assurance fee from 5.5 to 6 percent beginning on September 1, 2003. These rule amendments are proposed pursuant to HHSC's authority under §531.033, Government Code and under §252.205 Health and Safety Code. HHSC is simultaneously adopting these amendments on an emergency basis elsewhere in this issue of the Texas Register .

Thomas Suehs, Deputy Commissioner for Financial Services, has determined that for each year of the first five years the amendments are in effect, the public will benefit from adoption of the amendments. The anticipated public benefit as a result of the amendments will be a greater level of services to persons with mental retardation than would be possible if the amendments were not adopted.

Mr. Suehs has also determined that for state fiscal year 2003 there will be an estimated $17,375,199 in additional federal matching funds available as a result of the application of the fee to MHMR facilities, and for the next four years there will be an estimated $67,053,076 additional federal funds available. For the first five years that the fee is increased from 5.5 to 6 percent there will be an estimated additional $21,345,820 in total funds available consisting of an additional $13,083,015 federal funds and $8,262,805 state funds. No additional costs will be borne by local governments as a result of the amendments. The proposed amendments will not result in additional costs to persons required to comply with them, nor do they have any adverse impact on small or micro-businesses. The amendments will not affect local employment.

HHSC has determined that none of the proposed amendments is a "major environmental rule" as defined by §2001.0225, Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks 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 the state or a sector of the state. None of the proposed amendments is specifically intended to protect the environment or reduce risks to human health from environmental exposure.

The Health and Human Services Commission has determined that the proposed rules do not restrict or limit an owner's right to their property that would otherwise exist in the absence of governmental action and therefore do not constitute a taking under Texas Government Code, §2007.043. The following is a summary of that assessment. The proposed rules are reasonably taken to fulfill requirements of state law.

A hearing to accept oral and written testimony from members of the public concerning the proposal has been scheduled for 8:30 A.M., Friday, August 29, 2003, in the Public Hearing Conference Room of the Riata Building at 12555 Riata Vista Circle, Bldg.3, in Austin, Texas. Persons wishing to attend must enter through 12545 Riata Vista Circle, Austin, Texas, and obtain a pass from Security for the Public Hearing Conference Room. Persons requiring accommodations for a disability should notify Tony Arreola, at least 72 hours prior to the hearing at (512) 685-3124.

Public comment may be submitted in writing to Steve Lorenzen, Director, Rate Analysis, Health and Human Services Commission, by mail addressed to P.O. Box 13247, Austin, Texas 78711, or by facsimile to (512) 424-6586. Comments must be submitted within 30 days after the date of this publication. Further information may be obtained by calling Mr. Lorenzen at (512) 794-6845.

The amendments are proposed pursuant to HHSC's authority under §531.033, Government Code and under §252.205 Health and Safety Code.

The amendments affect Health & Safety Code §252.202 and House Bill 7, 78th Leg. §11.

§352.1.Purpose and Duration of Chapter.

(a) This chapter implements the determination, assessment, collection, and enforcement of the quality assurance fee authorized under chapter 252, Health and Safety Code, subchapter H.

(b) The purpose of the quality assurance fee established under this chapter is to improve the quality of care provided to persons with mental retardation as follows:

(1) The quality assurance fee is intended to support and/or maintain an increase in reimbursement to licensed intermediate care facilities for the mentally retarded and facilities operated according to the requirements of chapter 252, Health and Safety Code and owned and/or operated by a community mental health and mental retardation center as described in chapter 534, subchapter A, Health and Safety Code, and a facility owned by the Texas Department of Mental Health and Mental Retardation that participate in Medicaid program, subject to legislative appropriation for this purpose; and

[ ~~(2)~~ If funds generated from the collection of quality assurance fees under this chapter are available following fulfillment of the purpose described in subsection (b)(1) of this section, such funds may be allocated to the Home and Community Based waiver program and the Mental Retardation Local Authority waiver program established pursuant to 42 U.S.C. §1396n(c).]

(2) [ ~~(3)~~ ] The Commission or its designee may also offset allowable expenses to administer the quality assurance fee program against revenues generated by the collection of the quality assurance fee.

(c) This chapter will expire on September 1, 2005, unless chapter 252, subchapter H, Health and Safety Code, is extended by the 79th Texas Legislature.

§352.2.Definitions.

As used in this chapter, the following terms shall have the meanings prescribed below, unless the context clearly indicates otherwise:

(1) "Facility" means:

(A) An intermediate care facility for the mentally retarded or the corporate parent of an intermediate care facility for the mentally retarded licensed under chapter 252, Health and Safety Code; or

(B) A facility operated according to the requirements of chapter 252, Health and Safety Code, and owned and/or operated by a community mental health and mental retardation center as described in chapter 534, subchapter A, Health and Safety Code ; or [ . ]

(2) "Gross receipts" means money paid to a facility as compensation for services provided to patients, including client participation, but does not include charitable contributions to a facility.

(3) "Total patient days" means the sum, computed on a monthly basis, of the following:

(A) The total number of patients occupying a facility bed immediately before midnight on each day of the month; and

[ ~~(B)~~ The total number of facility beds that are on hold on each day of the month and that have been placed on hold for a period not to exceed three consecutive calendar days during which a patient is in a hospital during the month; and]

(B) [ ~~(C)~~ ] The total number of beds that are on hold on each day of the month and that have been placed on hold for a period not to exceed three consecutive calendar days during which a patient is on therapeutic [ ~~home~~ ] leave during the month.

(C) [ ~~(D)~~ ] The total number of days a patient is discharged from a facility are not counted in the calculation of the total patient days under this chapter.

§352.3.Quality Assurance Fee Determination Methodology.

(a) Quality [ ~~Interim quality~~ ] assurance fee on State facilities . As provided in section 1(b) [ ~~9.02~~ ] of the Act of June 20, 2003, 78th Leg. [ ~~May 28, 2001, 77th Leg.~~ ] R.S., (Senate Bill 1862 [ ~~1839~~ ]), not later than August 31, 2003, the Texas Department of Mental Health and Mental Retardation shall pay for each facility owned by the department the quality assurance fee for patient days occurring between September 1, 2002, and July 31, 2003. [ the quality assurance fee for the month September 2001, and for each month thereafter until implementation of a final quality assurance fee under subsection (b) of this section is the total number of patient days reported by a facility under §352.4 of this chapter multiplied by $5.25. ]

(b) Quality assurance fee. Beginning September 1, 2003, [ ~~November 1, 2001~~ ] the quality assurance fee for a facility is in the amount of six [ ~~5.5~~ ] percent of each reimbursement or payment rate received, including those received from the resident, for each resident in the facility during a calendar month, provided the amount of all such quality assurance fees assessed for the facility during the 12-month period following assessment of the quality assurance fee do not exceed six percent of the facility's total annual gross receipts in Texas.

(c) Not later than July 31, 2002, and every six months thereafter, the commission or its designee will review each individual facility's quality assurance fee calculation. A facility's liability for the quality assurance fee may be adjusted following this review to ensure that the quality assurance fee does not exceed six percent of annual revenue.

§352.4.Required reports.

(a) The following reports must be filed by a facility in accordance with the instructions of the Commission or its designee:

(1) The monthly patient day report required under subsection (c) of this section; and

(2) The semi-annual report of gross receipts required under subsection (d) of this section.

(b) Amended reports.

(1) A facility may amend a report required under subsections (c) or (d) of this section;

(2) An amended monthly patient day report must be filed no later than 10 calendar days following the filing of the report required under subsection (c) of this section.

(3) An amended report of gross receipts must be filed no later than 10 calendar days following the filing of the report required under subsection (d) of this section.

(1) A facility must report, not later than the 20th [ ~~10th~~ ] calendar day after the last day of a month, the total number of patient days for the facility during the preceding month.

(2) A facility must file the report required by this subsection on forms or in the format and according to the instructions prescribed by the commission or its designee.

[ ~~(3)~~ The first report required under this subsection is not due until the 10th day after the end of the month this chapter takes effect. This report will cover the months September 1, 2001 through the end of the month this chapter takes effect.]

(d) Reporting of gross receipts.

(1) A facility must report, not later than the 10th calendar day following the last day of the sixth month following the effective date of this chapter, the total gross receipts the facility received during the preceding 6-month period.

(2) A facility must file the report required by this subsection on forms or in the format and according to the instructions prescribed by the commission or its designee.

§352.5.Payment and Collection of Quality Assurance Fee.

A facility must:

(1) Pay the amount of the quality assurance fee in accordance with the instructions of the commission or its designee not later than the 30th day after the last day of the month for which the fee is assessed ; or

(2) Pay the amount of the quality assurance fee in accordance with the instructions of the commission or its designee and request an informal review of the calculation of the quality assurance fee in accordance with §352.8 of this chapter.

(3) Not later than August 31, 2003, the Texas Department of Mental Health and Mental Retardation shall pay for each facility owned by the department the quality assurance fee imposed under §352.3(a) of this title for patient days occurring between September 1, 2002, and July 31, 2003.

[ ~~(3)~~ The first payment required under this section is not due until the 30th day after the end of the month this chapter takes effect. That payment will cover all the months beginning September 1, 2001 through the end of the month this chapter takes effect.]

(4) The commission or its designee may review the calculation of the quality assurance fee to ensure its accuracy and instruct the facility to correct its calculation and payment.

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 August 13, 2003.

TRD-200305181

Steve Aragón

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: September 28, 2003

For further information, please call: (512) 424-6576