Part 2.
TEXAS ETHICS COMMISSION
Chapter 20.
REPORTING POLITICAL CONTRIBUTIONS AND EXPENDITURES
Subchapter B. GENERAL REPORTING RULES
1 TAC §20.52, §20.61
The Texas Ethics Commission adopts new §20.52 and an
amendment to §20.61, relating to rules that would require the description
of a political expenditure for travel outside of Texas to include detailed
information regarding travel. The rules are adopted without changes to the
proposed text as published in the May 27, 2005, issue of the
Texas Register
(30 TexReg 3073) and will not be republished.
Section 20.52 requires the description of an in-kind political contribution
for travel outside of Texas to include the name of the persons traveling on
whose behalf the travel was accepted and certain detailed information regarding
the travel.
Section 20.61 requires the description of a political expenditure for travel
outside of Texas to include the name of the persons traveling on whose behalf
the expenditure for travel was made and certain detailed information regarding
the travel.
No comments were received regarding adoption of the new rule and amendment.
The amendment and new rule are adopted under Government Code,
Chapter 571, §571.062, which authorizes the commission to adopt rules
concerning the laws administered and enforced by the commission.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 21, 2005.
TRD-200502965
David A. Reisman
Executive Director
Texas Ethics Commission
Effective date: August 10, 2005
Proposal publication date: May 27, 2005
For further information, please call: (512) 463-5800
Chapter 113.
PROCUREMENT DIVISION
Subchapter A. PURCHASING
1 TAC §113.4
The Texas Building and Procurement Commission adopts amendments
to 1 TAC §113.4, Centralized Master Bidders List. The amendments are
adopted with no changes to the text as published in the May 6, 2005, issue
of the
Texas Register
(30 TexReg 2627).
The amendments revise the rule to correct errors in the rule title and
in the name of the catalog information systems vendors. The amendments add
more specificity to the citation of statutory authority for removing a vendor
from the Centralized Master Bidders List (CMBL).
The rule title is amended to include "Master" to reflect the full and correct
name of the CMBL. Subsections (a), (d)(1), (f), and (g) are amended to change
any reference to the agency from commission to TBPC.
Subsection (a) is amended to correct the reference to information system
vendors to the currently accepted catalog information systems vendors (CISV)
Subsection (d)(3) is amended to give more specific statutory citations
relating to the removal of a vendor from the CMBL. Government Code §2155.070
gives TBPC the authority to act against a vendor who delivers goods that do
not meet contract specification. Government Code §2155.077 gives TBPC
the authority to debar a vendor from state contracts, gives the reasons acceptable
for debarment and prescribes that the TBPC promulgate procedures by which
debarment is decided and the length of time of the debarment. The amendments
ensure that the entire debarment process is referenced.
The period for public comments ended June 6, 2005. There were no comments.
The amendments to §113.4 are adopted under the authority
of the Government Code §2152.003, which provides the Texas Building and
Procurement Commission with the authority to promulgate rules necessary to
implement the section.
The following codes are affected by the rule: Government Code, §§2152.003,
2155.070, 2155.077, 2155.262 - 2155.270 and 2157.062.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503007
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: May 6, 2005
For further information, please call: (512) 463-4257
1 TAC §113.9
The Texas Building and Procurement Commission adopts amendments
to 1 TAC §113.9, Contract Administration, with no changes to the text
as published in the June 3, 2005, issue of the
Texas
Register
(30 TexReg 3187).
The amended rule removes unneeded debarment language because new debarment
rules, §§113.101 - 113.108, are being adopted concurrently and published
elsewhere in this issue. Also, "TBPC" is substituted for "Commission" when
referring to the agency.
Subsections (a)(1) - (2), (b), (c)(1) and (4), (d)(2) and new subsection
(d)(3) reflect the change from Commission to TBPC when referring to the agency.
Original subsection (d)(3) contained information regarding debarment and
reinstatement. This section is deleted because new rules on debarment are
being adopted concurrently and may be found in §§113.101 - 113.108.
Removing the language in subsection (d)(3) clarifies the rules and improves
the public's understanding of the debarment process.
The period for public comments ended July 5, 2005. There were no public
comments.
The amendments are adopted under the authority of the Government
Code, §§2152.001, 2152.003, and 2156.077.
The following code is affected by the rule: Government Code, §2155.077.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503008
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: June 3, 2005
For further information, please call: (512) 463-4257
1 TAC §113.33, §113.34
The Texas Building and Procurement Commission (TBPC) adopts
amendments to 1 TAC §113.33, concerning Selection of Items for Development
of Texas Uniform Standards and Specifications, and §113.34, concerning
Development of Texas Uniform Standards and Specifications. Section 113.33
is adopted with changes to the proposed text as published in the May 6, 2005,
issue of the
Texas Register
(30 TexReg 2628).
An error in the citation to the Texas Government Code in §113.33(1)(B)
was corrected. Section 113.34 is adopted without changes to the proposed text
as published.
The amendments reflect current statutory responsibilities for developing
Texas school bus specifications and clarify the role and responsibilities
of TBPC in procurement of school buses, pursuant to Local Government Code, §271.083.
The amendments also include minor revisions to remove a gender related reference
to purchasers and to reflect the correct name of the Commission and division
that is responsible for procurement. Section 113.33(1)(A) places the responsibility
for the development of specifications for safety standards with the Texas
Department of Public Safety and the Texas Education Agency and stipulates
that the specifications are to be referenced in solicitations and made a part
of any contract awarded by TBPC as a result of a requisition received from
a school district. The specifications are also to be posted on the TBPC website.
Section 113.33(1)(B) is amended to change "commission" to "TBPC" when referring
to the agency.
Section 113.33(2) is amended to reflect the correct name of the procurement
division.
Section 113.33(3) is amended to remove a gender-specific reference to purchasers.
Section 113.34(c)(1) is amended to reflect the correct name of the procurement
division.
The period for public comments ended June 6, 2005. There were no public
comments.
The amendments to §113.33 and §113.34 are adopted under
the authority of the Government Code, §2152.003 which provides the TBPC
with the authority to promulgate rules necessary to implement procurement
related statutes.
The following codes are affected by the adoption: Government Code, §§2155.066,
2155.068, 2155.069, 2155.070, 2155.204; Local Government Code, §271.083;
Education Code, §34.001; and Transportation Code, §547.7015.
§113.33.Selection of Items for Development of Texas Uniform Standards and Specifications.
Items are selected for specification development by or through one
or more of the following methods.
(1)
Required by statute.
(A)
School buses. Pursuant to the Texas Education Code, §34.002,
the Texas Department of Public Safety, with advice from the Texas Education
Agency, establishes safety standards for school buses used to transport students.
Pursuant to the Texas Education Code, §34.001, specifications developed
by the Texas Department of Public Safety in compliance with the Texas Transportation
Code, §547.7015, shall be referenced in solicitations and made a part
of any contract awarded by the TBPC as result of a requisition received from
a school district pursuant to the Texas Local Government Code, §271.083.
For the convenience of qualified purchasing entities the specifications shall
be posted on the TBPC website.
(B)
Prison-made products and raw materials. Pursuant to Texas
Government Code, Subtitle G, Subchapter B, §497.027, an article or product
produced under Subchapter B must meet specifications established by the TBPC
that are in effect when the article or product is produced.
(2)
Requests from using agencies. If a using agency finds that
it is having difficulty in obtaining a certain item to meet a particular requirement,
then the agency can communicate this need to the standards and specifications
section of the Procurement Division.
(3)
Requests from purchasers. If a state purchaser is having
difficulty in securing bids on a particular item in the absence of adequate
uniform standards and specifications, the purchaser may request the standards
and specification section to investigate the feasibility of developing a uniform
standard and specification to cover the purchase of this item.
(4)
Requests from vendors and/or bidders. Bidders may petition
the standards and specification section to ascertain the feasibility of developing
a specification on an article bid by agencies.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503012
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: May 6, 2005
For further information, please call: (512) 463-4257
1 TAC §§113.101 - 113.108
The Texas Building and Procurement Commission (TBPC) adopts
new 1 TAC §§113.101 - 113.108, concerning vendor performance and
debarment program, with no changes to the proposed text as published in the
May 6, 2005, issue of the
Texas Register
(30
TexReg 2629). TBPC adopts the new rules to protect the interests of the state
and to enhance public confidence in the integrity of the state's procurement
policies and practices. The rules replace current §113.102, concerning
vendor performance and debarment which is contemporaneously being repealed
in this issue of the
Texas Register
.
The new rules provide more detailed notice of the factors TBPC will consider
when making a decision to debar a vendor. Vendors doing business with the
state will have a clearer understanding of the expected performance and ethical
standards. The rules also provide procedures to ensure that the vendor has
an opportunity to be heard prior to a finding by TBPC.
Section 113.101, concerning the purpose and applicability these rules,
describes the reasons for the rules and that they apply to all procurement
conducted under the authority of Government Code, Title 10, Subtitle D.
Section 113.102, concerning definitions, provides definitions for terms
not otherwise defined by statute or in §113.2 and, in the case of the
debarment definition, adds language to the definition in §113.2.
Section 113.103, concerning protecting the state's interest when there
is a failure to meet specifications, lists the factors TBPC shall consider
when proposing an action based on a vendor's failure to meet specifications.
Section 113.104, concerning protecting the state's interest when there
is a failure to meet contract requirements, contains the factors TBPC shall
consider when evaluating a vendors performance measured by the vendor performance
tracking system and the categories listed therein.
Section 113.105, concerning debarment, describes actions TBPC may take
and the general reasons for debarment including the time periods of debarment.
Section 113.105(a) describes TBPC's potential actions. Section 113.105(b)
requires notice of potential action. Section 113.105(c) provides that TBPC
may assess actual damages and costs against a vendor who fails to perform
as specified under a contract. Section 113.105(d) provides that a vendor may
be debarred upon finding that the vendor has engaged in the conduct prohibited
by that subsection. Section 113.105(e) provides that a vendor may be debarred
upon a finding that the vendor's performance was substandard. Section 113.105(f),
(g), and (h), concerning failure to meet specifications, describe actions
upon a first and subsequent failures to meet specifications.
Section 113.106, concerning procedures for investigations and debarment,
provides that TBPC shall provide notice to the vendor of a proposed action
and also describes the time periods for vendor response, investigations, and
TBPC finding. The section also contains mitigating circumstances and remedial
measures TBPC may consider when determining the appropriate action.
Section 113.107, concerning request for review, provides a process for
a review of TBPC action. The Executive Director conducts the review and has
discretion to revise the finding.
Section 113.108, concerning the vendor performance tracking system, describes
the parameters for the system and requires state agencies to report vendor
performance for contracts over $25,000.
The public comment period ended June 6, 2005. There were no public comments.
The new §§113.101 - 113.108 are adopted under the authority
of the Government Code, §155.070 and §2155.077(c).
The following codes are affected by this adoption: Government Code, Chapters
2156, 2157, 2158, 2161, 2162, 2163, 2165, 2166, 2167, 2170, 2171, 2172, 2175,
2177; Local Government, Chapter 271; and Transportation Code, Chapters 223
and 224.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503010
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: May 6, 2005
For further information, please call: (512) 463-4257
1 TAC §113.102
The Texas Building and Procurement Commission (TBPC) adopts
the repeal of 1 TAC §113.102, concerning vendor performance and debarment,
with no changes to the proposal as published in the May 6, 2005, issue of
the
Texas Register
(30 TexReg 2633). The section
is repealed because it is being replaced by new §§113.101 - 113.108,
which are adopted and published contemporaneously elsewhere in this issue
of the
Texas Register
.
Section 113.102 is no longer necessary because of the adoption of the new
rules. The new rules will provide the public with more detail about TBPC's
debarment process.
The public comment period ended June 6, 2005. There were no public comments.
The repeal of §113.102 is adopted under the authority of
the Government Code, §2152.003 and §2155.077.
The following codes are affected by this adoption: Government Code, Chapters
2156, 2157, 2158, 2161, 2162, 2163, 2165, 2166, 2167, 2170, 2171, 2172, 2175,
2177; Local Government Code, Chapter 271; and Transportation Code, Chapters
223 and 224.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503009
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: May 6, 2005
For further information, please call: (512) 463-4257
1 TAC §113.125, §113.126
The Texas Building and Procurement Commission (TBPC) adopts
amendments to 1 TAC §113.125, concerning Buying under Contract Established
by an Agency Other Than Commission, and §113.126, concerning Purchasing
from Interstate Compacts and Cooperative Agreements with no changes to the
proposed text as published in the May 6, 2005, issue of the
Texas Register
(30 TexReg 2634).
The adopted amendments update the current rules to reflect the correct
name of the Commission in both the rules and the subchapter Table of Contents.
The revisions add clarity and a sequential approach to the notification process
for purposes under another agency's contract and the responsibilities of the
Commission.
In the heading for Subchapter G, the name of the agency is changed from
General Services Commission to Texas Building and Procurement Commission to
be in compliance with the statutes.
Section 113.125(a) is amended to change the name of the agency from General
Services Commission (GSC) to Texas Building and Procurement Commission (TBPC).
New §113.125(b) is adopted to replace the existing subsection. The
new language describes the process an agency must use to justify a request
to make purchases under another agency's contract.
Section 113.125(c) and (d) are amended to change the agency reference from
Commission to TBPC.
Section 113.125(c) is also amended to add overall best value as criteria
to be used when considering the authorization of a request to purchase of
another state agency contract.
Section 113.126(a) and (b) is amended to change the agency reference from
Commission to TBPC.
Section 113.126(b) is amended to reflect the current title of the procurement
director.
Section 113.126(b) is amended to also give the Executive Director the authority
to approve proposals regarding cooperative purchases.
The public comment period ended June 6, 2005. There were no public comments.
The amendments to §113.125 and §113.126 are adopted
under the authority of the Government Code, §2152.003 which provides
the TBPC with the authority to promulgate rules necessary to implement procurement
related statutes.
The following codes are affected by the adoption: Government Code, §§2155.079,
2155.132 and 2155.502.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 22, 2005.
TRD-200503013
Ingrid K. Hansen
General Counsel
Texas Building and Procurement Commission
Effective date: August 11, 2005
Proposal publication date: May 6, 2005
For further information, please call: (512) 463-4257
Chapter 353.
MEDICAID MANAGED CARE
The Health and Human Service Commission (HHSC) adopts amendments and
repeals in Chapter 353, Medicaid Managed Care.
HHSC adopts the following amendments: §353.1, Rules of Other Agencies; §353.2,
Definitions; §353.3, Experience Rebate in the STAR and STAR+PLUS Programs; §353.101,
Purpose; §353.102, Provider and Member Education Programs Generally; §353.104,
Member Education Program; §353.105, Provider Education Program; §353.201,
Purpose; §353.202, Member Bill of Rights; and §353.203, Member Bill
of Responsibilities; §353.403, Enrollment; §353.405, Marketing; §353.407,
Selection of Managed Care Organization (MCOs); §353.409, Scope of Services; §353.411,
Accessibility of Services; §353.413, Managed Care Benefits and Services
for Children Under 21 Years of Age; §353.415, Member Complaint Procedures
and §353.417, Quality Improvement, without changes to the proposed text
as published in the January 21, 2005, issue of the
Texas Register
(30 TexReg 173) and will not be republished. Section
353.419, Financial Standards, is adopted with minor changes to the proposed
text as published in the January 21, 2005, issue of the
Texas Register
(30 TexReg 173). The text of the rule will be republished.
HHSC adopts the following repeals without changes to the proposal as published
in the January 21, 2005, issue of the
Texas Register
(30 TexReg 173): §353.103, Contract Compliance; §353.204,
Construction; §353.301, Purpose; §353.302, Pilot Program Study; §353.303,
Federal Waiver; §353.304, Expiration; §353.401, General Provisions;
and §353.402, Definitions. The text of the rules will not be republished.
HHSC amended Chapter 353, Medicaid Managed Care, as outlined in this section-by-section
summary. Chapter 353, Subchapter A, General Provisions, describes general
information for the Medicaid Managed Care program. Amended section §353.1,
Rules of Other Agencies, describes the criteria a health maintenance organization
(HMO) participating in Medicaid must meet, in addition to those in Chapter
353. The amended §353.1 updates the title of the rule and the references
contained within the rule. In addition, new language is added to this section
that is deleted from other rules within Chapter 353 for the purpose of streamlining
the rules. Section §353.2, Definitions, updates and re-orders the definitions
and terms used throughout Chapter 353. The amended §353.3, Experience
Rebate in the STAR and STAR+PLUS Programs, adds new language to clarify the
intent of the rule and updates the reimbursement methodology.
Subchapter B, Provider and Member Education Programs, describes the provider
and member education requirements for the Health Maintenance Organizations
(HMOs) participating in Medicaid. Amended rule §353.101, Purpose, outlines
the authority for establishing the requirements in this subchapter. The amendments
update the references to legacy agencies listed in the rule.
The amended rule §353.102, Provider and Member Education Programs
Generally, requires HMOs to offer education programs to providers and members.
The proposed amendments to this rule update the references.
Amended rule §353.103, Contract Compliance, establishes that HMOs
must provide education programs for providers and members. The Commission
proposes to repeal this rule; new language regarding contract compliance is
included in §353.1, Purpose.
Amended rule §353.104, Member Education Program, describes the components
for the member education programs required of an HMO participating in Medicaid.
The amendments to the rule add clarifying language, including language concerning
the HMO's obligation to educate members about their right to request a fair
hearing.
The amended rule §353.105, Provider Education Program, describes the
required elements for provider education regarding Medicaid Managed Care.
The amendments to the rule update references and add new language for clarity.
Subchapter C, Member Bill of Rights and Responsibilities, sets out the
requirements for these documents. Amended rule §353.201, Purpose, describes
the Commission's authority to adopt rules for the Member Bill of Rights and
Responsibilities. The proposed amendment to the rule updates the statutory
reference for HHSC's authority to adopt rules.
HHSC mandates that HMOs provide a written document that describes the member's
bill of rights. The bill of rights for clients participating in the Medicaid
Managed Care program is attached to §353.202, Member Bill of Rights.
The amendment adds the language contained in the Member Bill of Rights to
the rule to assist in distribution of consistent information to members by
the HMOs.
The amended rule §353.203, Member Bill of Responsibilities, sets out
the requirement that each HMO must provide a Bill of Responsibilities to all
Members. The amendment adds the mandatory language that must be included in
the Bill of Responsibilities to aid in distribution by the HMOs of consistent
information to the members.
Repealed rule §353.204, Construction, distinguishes the requirements
of Subchapter C, Member Bill of Rights and Responsibilities, for contracts
in place prior to August 1, 1996, and those contracts that were renewed or
extended after August 1, 1996. The Commission repealed this section because
it is no longer necessary.
Subchapter D, Telephone-Based Health Care Systems Pilot Program, describes
a Medicaid Managed Care pilot program offering a telephone-based health care
system. The pilot program was mandated by S.B. 10, 74th Legislature, Regular
Session, 1995. The Commission repealed Subchapter D because the pilot program
expired January 1, 1998.
Subchapter E, Standards for STAR and STAR+PLUS Programs, sets forth the
standards for the STAR and STAR+PLUS programs. HHSC repealed rule §353.401,
General Provision, which identified rules other than those of HHSC with which
Medicaid HMOs must comply. The language has been updated and restated in amended
rule §353.1, Purpose. In addition, HHSC repealed §353.402, Definitions.
The language in this rule is revised, updated, and incorporated into amended
rule §353.2, Definitions.
The criteria and standards for enrollment in a Medicaid managed care organization
are described in rule §353.403. The amended rule §353.403, Enrollment,
removes language that makes separate reference to the Primary Care Case Management
(PCCM) program. PCCM is included in the term "health plan" for the purposes
of this Chapter only. The amendment to the rule also replaces the term "department"
with the term "Commission," as contracts are now with HHSC, not the Texas
Department of Health. In addition, the amendments set forth criteria under
federal law for participating in Medicaid managed care.
The amended rule §353.405, Marketing, sets forth the requirements
for HMOs with regard to marketing plans, materials, and practices. The Commission
amends the rule by replacing the term "department" with the term "Commission,"
as contracts are with HHSC, not the Texas Department of Health.
The requirements for HMOs, subcontractors of HMOs, and the required compliance
with policy set forth by the Commission are listed in rule §353.407,
Selection of Health Maintenance Organizations (HMOs). HHSC amended this section
by revising the title of the rule to more appropriately describe the intent
of the rule. In addition, the amendments replace the term "department" with
the term "Commission" and update references within the rule.
Services HMOs must provide are described in §353.409, Scope of Services.
The Commission amended §353.409, by replacing the term "department" with
"Commission." The amendment requires Medicaid HMOs to provide the services
that are defined in this title under Chapter 354, Medicaid Health Services.
The amendment also deletes language that is no longer necessary because of
the addition of the definition of value-added services.
The amended rule §353.411, Accessibility of Services, outlines an
HMO's obligation to provide services that are accessible to clients. HHSC
amended the rule by replacing the term "department" with the term "Commission."
In addition, the amendments add language requiring HMOs to ensure no member
must travel more than thirty miles to access "acute care hospitals."
The HHSC amended rule §353.413, Managed Care Benefits and Services
for Children under 21 Years of Age. This rule outlines the HMOs' obligations
with regard to services provided to children less than 21 years of age. The
amendment replaces the term "department" with "Commission" and "STAR" with
"Medicaid Managed Care."
Procedures HMOs are mandated to follow with regards to complaints from
members are defined in §353.415, Member Complaint Procedures. HHSC amended
rule §353.415 by replacing the term "department" with the term "Commission"
and the word "recipients" with "clients." The amendment also adds language
requiring inclusion of the right to a fair hearing in the HMOs' notice to
the clients.
The amended rule §353.417, Quality Improvement, identifies the expectations
of the state pertaining to quality improvement programs for the HMOs. The
Commission amended this section by updating the title to "Quality Assessment
and Performance Improvement." In addition, the amendments include revised
language to update the standards, references, and requirements for the HMOs'
quality improvement program.
The Commission amended rule §353.419, Financial Standards by replacing
the words "department" with "Commission" and "STAR" with "Medicaid Managed
Care." The amendments update the language about profit sharing arrangements
and add a reference to §353.3, which discusses experience rebates.
HHSC received comments regarding the proposed rule during the comment period
from the Coalition for Nurses in Advanced Practice, the Office of Inspector
General, and the Texas Association for Home Care, and an individual. A summary
of the comments and HHSC's responses follows.
Comment:
HHSC received a comment concerning rule §353.2(2), Definitions, from
the Coalition for Nurses in Advanced Practice requesting that the Health and
Human Services Commission revise the proposed definition of acute care, §353.2(2),
published in the January 21st, 2005, issue of the
Texas Register
. The coalition requested that the language "under the
direction of a physician" be removed from the rule.
Response:
HHSC acknowledges the comment received from the Coalition for Nurses in
Advanced Practice. The recommendation has been reviewed and considered but
was not incorporated into the rule because the rule is consistent with current
contract language. No change was made to the rules in response to this recommendation.
Comment:
HHSC received several comments concerning the rule §353.202(8), Member
Bill of Rights, from the Office of Inspector General (OIG) requesting that
HHSC revise the Medicaid Managed Care proposed rules. OIG recommended that §353.202(8),
Member Bill of Rights, include a statement encouraging clients to report a
client (a person who receives benefits) or provider (e.g., doctor dentist,
counselor, etc.) suspected of committing waste, abuse or fraud, to his or
her HMO and the Office of Inspector General.
Response:
HHSC acknowledges the comments received from the Office of Inspector General.
The Commission considered this comment. In an effort to align the Medicaid
managed care and fee-for-service programs, HHSC will address the recommendation
from OIG as it applies to all Medicaid recipients at a later date. No change
was made to the rules in response to this recommendation.
Comment:
HHSC received a comment from the Office of Inspector General (OIG) concerning
rule §353.203, Member Bill of Responsibility. OIG suggested revising
the rule to include language regarding working with the agency and providers
to ensure appropriate medical care is received and clarifies reporting requirements
for Medicaid clients.
Response:
HHSC acknowledges the comments received from the Office of Inspector General.
The Commission considered this comment. In an effort to align the Medicaid
managed care and fee-for-service programs, HHSC will address the recommendation
from OIG as it applies to all Medicaid recipients at another time. No change
was made to the rules in response to these recommendations.
Comment:
HHSC received a comment concerning rule §353.2(1)(C), Definitions,
from the Texas Association for Home Care (TAHC) requesting that HHSC revise
the definition for the term "Action." Currently "Action" is defined as failure
to provide services in a timely manner or the failure of an HMO to act within
the timeframes set forth by the Commission and state and federal law. TAHC
request that HHSC delete the term "Action" and use the term "Violation." TAHC
suggested that the term "Violation" be defined as, "Failure to provide services
in a timely manner and failure of an HMO to act within the timeframes set
forth by the commission and state and federal law."
Response:
HHSC acknowledges the comment received from TAHC. The rule, as written,
is a federal requirement found at 42 CFR 438.400. No change was made to the
rule in response to the recommendation.
Comment:
HHSC received a comment concerning rule §353.2(42)(B), Definitions,
from the Texas Association for Home Care (TAHC) requesting that HHSC revise
the definition for "Medically necessary health services". Currently, "Medically
necessary health services" is defined as "(B) provided at appropriate facilities
and at the appropriate levels of care for the treatment of the member's medical
conditions;"
Response:
HHSC acknowledges the comment received from TAHC. Rule §353.2(42)(E),
Definitions, contains the same language addressing the concerns submitted
by TAHC. No change was made to the rule in response to the comment.
Comment:
HHSC received a comment concerning rule §353.413(a), Managed Care
Benefits and Services for Children Under 21 Years of Age, from the Texas Association
for Home Care (TAHC) requesting that HHSC revise the rule. The previous language
concerning the actual discretionary authority of the HHSC regarding EPSDT
services cited 42 United States Code §1396d(r) and the Texas Health Steps
Program (THSteps) found at Chapter 33 of this title (relating to Early and
Periodic Screening, Diagnosis and Treatment) as the authority. The amended
rule §353.413(a), Managed Care Benefits and Services for Children Under
21 Years of Age, currently states "...as determined by the Commission" as
it pertains to discretionary authority regarding Early and Periodic Screening,
Diagnosis, and Treatment Program (EPSDT) services.
Response:
HHSC acknowledges TAHC's comment concerning rule §353.413(a), Managed
Care Benefits and Services for Children under 21 Years of Age. The Commission
prefers that the rule does not include specific citations listed in the rule
because the reference may change, which would require a rule change to update
the citation. No change was made to the rule in response to the recommendation.
Comment:
HHSC received a comment concerning rule §353.415(a), Member Complaint
Procedures, from the Texas Association for Home Care (TAHC) requesting that
HHSC revise the rule. TAHC states that this section only addresses "member"
complaints. Under rule §353.415(12), Definitions, providers are included
in the definition of a "complainant", however are given no formal mechanism
to lodge a complaint.
Response:
HHSC acknowledges TAHC's comment concerning rule §353.415(a), Member
Complaint Procedures. Requirements for the HMOs to accept, track and process
provider complaints are outlined in the HMO contracts. The definitions for
"complainant" found in §353.415(12), Definitions, is contract language.
No change to the rule was made in response to the comment.
Comment:
One commenter suggested that, for Early and Periodic Screening, Diagnostic
and Treatment (EPSDT) recipients, HHSC should revise the definitions of "medically
necessary behavioral health services" and "medically necessary health services"
in proposed §353.2 to reflect the language of the Social Security Act:
"necessary health care, diagnostic services, treatment, and other measures
described elsewhere in the Act) to correct or ameliorate defects and physical
and mental illnesses and conditions."
Response:
HHSC recognizes the commenter's concerns. However, HHSC believes that the
proposed definitions not only accommodate the Social Security Act requirements
for EPSDT recipients but also incorporate additional requirements and standards
that the Medicaid managed care organizations are contractually bound by. The
proposed language has been retained to align the administrative rules with
the contract requirements and to preclude any confusion that would likely
arise if the contract requirements and rule requirements were dissimilar.
No change was made to the rules in response to this recommendation.
Comment:
One commenter contended that §353.104, Member Education Program, is
contrary to a term of a litigation-related consent decree because it does
not allow Medicaid managed care enrollees (Members) to bypass a Medicaid managed
care organization's internal complaint systems and "go straight to the Medicaid
fair hearing process," as permitted by §531.0211, Government Code (formerly,
Section 16, Article 4413 (502), Revised Statutes, added by SB601, 74th Leg.,
R.S., 1995).
Response:
HHSC acknowledges the comment but disagrees that the amended rule precludes
a Member from directly accessing the Medicaid fair hearing process. Indeed,
the rule specifically requires that the Medicaid health maintenance organizations
(MHMO) include in its Member education materials information on the Member's
right to request a fair hearing and the process for requesting one. The rule
does not impose a contingent requirement that the recipient first access the
MHMO's internal complaint procedure.
In addition, §353.415(c) requires that an MHMO's internal complaint
procedure "contain prominent notice" that the recipient "retains all rights
... to a fair hearing through the Commission, in addition to the health maintenance
organization's complaint process." HHSC notes that §531.0211, Government
Code, requires that the MHMOs tell Members of their "right to bypass the managed
care organization's internal complaint system and use the notice and appeal
procedures otherwise required by the Medicaid program." Section 531.0211 does
not in any way change the Medicaid notice and appeal "the fair hearing" process.
It merely permits use of the fair hearing process, without resort to an MHMO's
internal process, pursuant to the fair hearing system's rules. Under the fair
hearing system rules, a Member may access the fair hearing process only if
the underlying complaint meets the threshold requirements of the fair hearing
process, which are spelled out in 1 T.A.C. §357.1(a), relating to the
purpose and scope of the Medicaid fair hearing process. One of the threshold
requirements is that there have been an adverse "action" taken by HHSC or
an agency that operates any portion of the Medicaid program. If the Member's
complaint meets the fair hearing threshold requirements, the Member may "go
straight to the Medicaid fair hearing process." If the complaint does not
meet a fair hearing threshold requirement, the Member must resolve the issue
with the MHMO. Chapter 353 defines a "complaint" to mean "[a] any dissatisfaction"
expressed by a Complainant to the MCO other than an "action," which provides
for the Member to access the fair hearing process. A "complaint" may or may
not constitute an "action." No change was made to the rules in response to
this recommendation.
Comment:
One commenter expressed concern that sections 353.105, Provider Education
Program, and 353.411(i), Accessibility of Services, are contrary to paragraph
194 of a litigation-related consent decree, which requires training for all
health care providers and their staff about the relevant provisions of the
consent decree.
Response:
HHSC disagrees that either §353.105 or §353.411(i) violates paragraph
194 of the consent decree. Paragraph 194 requires only that providers be trained
on, among other topics, the relevant provisions of the consent decree. Paragraph
194 does not require that its own terms be incorporated into an administrative
rule. The topics to be covered in provider training identified in §353.105
and §353.411(i) are not exhaustive. No change was made to the rules in
response to this recommendation.
Comment:
One commenter expressed concern that the travel distance limits in proposed
rule §353.411, Accessibility of Services - 30 miles to see a primary
care provider and 75 miles to see a specialist - are too long for most areas
in the state. The commenter suggests that HHSC reduce the 30- and 75-mile
limits for most areas of the state and establish separate travel standards
only for "extremely rural or frontiers areas" of the state, either through
separate regulations or through the exceptions process already established
by §353.411(c) and (g).
Response:
The Commission disagrees with the comment and believes it is unrealistic
to reduce the travel distance limits to less that 30 miles for primary care
providers and 75 miles for specialist, given the scarcity of both types of
providers in much of the state. In 2004 80 percent of licensed medical specialists
were concentrated in 20 metropolitan counties. During the same period there
were 120 counties in which there were no medical specialists at all. For example,
there are 41 pediatric neurologists in the state of Texas, all of them located
in 13 counties. All of the child psychiatrists in the state are located in
33 counties. Again, in 2004, 64 percent of all pediatric dentists in Texas
were located in only six counties. In addition, the 30- and 75-mile travel
limits are identical to those that commercial health plans are required by
the Texas Department of Insurance to meet 28 T.A.C. §11.1607. No change
was made to the rules in response to this recommendation.
Comment:
One commenter expressed concern that proposed §353.417, Quality Assessment
and Performance Improvement, would be contrary to paragraph 197 of a litigation-related
consent decree. The commenter stated that the proposed rule eliminates required
studies of the timeliness of care provided by the managed care organizations,
as required by current §353.417(a)(7) and (8).
Response:
The Commission disagrees that revised §353.417 is in any way inconsistent
with paragraph 197. The comment suggests that both paragraph 197 and current §353.417(a)(7)
and (8) require studies of the timeliness of care. The Commission disagrees.
Under paragraph 197, the Commission must assure, by various means that managed
care organizations have a sufficient network of providers to provide timely
care to members. Paragraph 197 does not require timeliness studies. Nor does
paragraph 197 require that the obligation that the managed care organizations
have a sufficient network of providers be imposed in an administrative rule
as opposed to, for example, by contract. In addition, current §353.417(a)(7)
and (8) do not require timeliness studies. But §353.417(a)(7) and (8)
currently do require that a managed care organization's own quality improvement
program contain performance standards for accessibility to care and time standards
within which managed care network providers must respond to the medically
necessary health needs of their members. No change was made to the rules in
response to this recommendation.
Comment:
One commenter expressed concern that §353.417(d) is inconsistent with
paragraph 199 of a litigation-related consent decree. The commenter believes
that the revised rule gives HHSC the discretion to decide whether or not to
evaluate access to care and quality of care instead of mandating review.
Response:
HHSC disagrees that proposed §353.417(d) is inconsistent with paragraph
199. The only proposed change to subsection (d) is to change the current reference
from "MCOs" to "HMOs." This proposed change does not affect the Commission's
decision to evaluate access to or quality of care provided by the Medicaid
HMOs. The change to health maintenance organization (HMO) was made to conform
to the revised definitions in §353.2. No other revisions to subsection
(d) were proposed. The Commission cannot consider comments to provisions within
a rule to which revisions were not proposed and, therefore, no notice given
to the public that changes were being considered. Nonetheless, the Commission
notes that subsection (d) continues to mandate independent evaluations of
each HMO's quality of services, member access, and quality of care. No change
was made to the rules in response to this recommendation.
Comment:
One commenter objected to the proposed change in §353.413(a), Managed
Care Benefits and Services for Children Under 21 Years of Age, stating that
the rule appears to change the source of EPSDT requirements from federal law
to the Commission. The commenter goes on to add that the Commission cannot
reduce or change the scope of benefits that are guaranteed to class members
by federal law.
Response:
HHSC acknowledges the comment and the concern expressed. However, the proposed
revision does not reduce or change the scope of benefits that are guaranteed
to EPSDT recipients. The revised language serves only to clarify that it is
HHSC's obligation, rather than that of the participating health maintenance
organizations, to determine what level and frequency of care meet the federal
EPSDT requirements and to reflect HHSC's obligation, under 42 CFR §440.230(d),
to determine what constitutes medically necessary care. No change was made
to the rules in response to this recommendation.
Subchapter A. GENERAL PROVISIONS
1 TAC §§353.1 - 353.3
The amendments are adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on July 21, 2005.
TRD-200502967
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
1 TAC §§353.101, 353.102, 353.104, 353.105
The amendments are adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 21, 2005.
TRD-200502968
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
1 TAC §353.103
The repeal is adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 21, 2005.
TRD-200502969
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
1 TAC §§353.201 - 353.203
The amendments are adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 21, 2005.
TRD-200502970
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
1 TAC §353.204
The repeal is adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 21, 2005.
TRD-200502971
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
1 TAC §§353.301 - 353.304
The repeals are adopted under the Texas Government Code, §531.033,
which provides the executive commissioner of HHSC with broad rulemaking authority;
the Human Resources Code, §32.021, and the Texas Government Code, §531.021(a),
which provide HHSC with the authority to administer the federal medical assistance
(Medicaid) program in Texas.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on July 21, 2005.
TRD-200502972
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 10, 2005
Proposal publication date: January 21, 2005
For further information, please call: (512) 424-6900
Part 5.
TEXAS BUILDING AND PROCUREMENT COMMISSION
Subchapter C. SPECIFICATION
Subchapter F. VENDOR PERFORMANCE AND DEBARMENT PROGRAM
Subchapter G. BUYING UNDER CONTRACT ESTABLISHED BY AN AGENCY OTHER THAN THE TEXAS BUILDING AND PROCUREMENT COMMISSION
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION
Subchapter B. PROVIDER AND MEMBER EDUCATION PROGRAMS
Subchapter C. MEMBER BILL OF RIGHTS AND RESPONSIBILITIES
Subchapter D. TELEPHONE-BASED HEALTH CARE SYSTEMS PILOT PROGRAM
Subchapter E. STANDARDS FOR THE STATE OF TEXAS ACCESS REFORM (STAR)