Part 1. DEPARTMENT OF STATE HEALTH SERVICES
The Executive Commissioner of the Health and Human Services Commission (commission) on behalf of the Department of State Health Services (department) adopts the repeal of 25 Texas Administrative Code (TAC), Chapter 460, Miscellaneous, in its entirety. Specifically, the commission on behalf of the department adopts the repeal of §§460.11 - 460.29, 460.31 - 460.35, 460.37, 460.38, 460.40, 460.45, 460.51 - 460.67, 460.101, 460.102, and 460.103 - 460.105, concerning miscellaneous rules from the legacy agencies that were consolidated into the department by Acts 2003, 78th Legislature, Regular Session, Chapter 198 (House Bill 2292). The repeals are adopted without changes to the proposal as published in the December 14, 2007, issue of the Texas Register (32 TexReg 9250), and, therefore, the sections will not be republished.
BACKGROUND AND PURPOSE
The repeals are necessary to eliminate duplication and to recognize the effect of House Bill 2292 on department rules. When the department's legacy agencies Texas Department of Health (TDH), the mental health division of the Texas Department of Mental Health and Mental Retardation (TDMHMR), the Texas Commission on Alcohol and Drug Abuse (TCADA), and the Texas Health Care Information Council (THCIC) were consolidated into the department, 25 TAC, Part 1, was designated as the location for all department rules. Chapter 460 was designated for rules from the department's legacy agencies that did not need to be retained. The rules in Chapter 460 concern legacy agency powers and duties that transferred to the commission through House Bill 2292, were duplicative of the law establishing the department or other law applicable to the department, or were expected to be established by department policy rather than by rule. The rules in Chapter 460 were transferred there in 2004 with the intent of eventual repeal.
SECTION-BY-SECTION SUMMARY
The rules in Chapter 460, Subchapter A, Divisions 2 - 4 are legacy TDMHMR rules. Repeal of Division 2, §§460.11 - 460.29, Fraud and Abuse and Recovery of Benefits, is necessary because powers and duties concerning Medicaid fraud and abuse investigation and recovery were transferred from the legacy agencies to the commission, Office of Inspector General (OIG), on September 1, 2004, pursuant to House Bill 2292. Some of the sections in Division 2 are internal policies and procedures that do not need to be in rules. The sections concerning grounds for sanctions against providers, grounds for further referrals for administrative or judicial action, and the recovery of overpayments are set out in the contracts with providers and in the OIG rules. The OIG rules, which were adopted effective January 9, 2005, are located in 1 TAC, Part 15, Chapter 371.
Repeal of Division 3, §§460.31 - 460.35, 460.37, 460.38, 460.40, and 460.45, Interagency Agreements, is necessary because those legacy TDMHMR rules are duplicative of department rules or policies. The sections in Division 3 all were transferred effective September 1, 2004, from TAC, Title 25, Chapter 411 to Chapter 460. Section 460.31, Purpose, §460.32, Application, and §460.33, Definitions, are unnecessary because they refer to the legacy agency TDMHMR, which no longer exists. Section 460.34, concerning Provision, Regulation, and Funding of Services in Hospitals and Long-Term Care Facilities, is duplicative because a rule adopting this memorandum of understanding (MOU) is already found at 25 TAC, §111.2. State law requires the MOU to be adopted by rule. Section 460.35, concerning Coordination of Services to Disabled Persons, is duplicative because a rule adopting this MOU is already found at 25 TAC, §1.121. State law requires the MOU to be adopted by rule. Section 460.37, concerning Coordination of Delivery of Mental Health and Mental Retardation Services to Hearing-Impaired or Deaf Persons, is duplicative because a rule adopting this MOU is already found at 25 TAC, §37.193. State law does not require the MOU to be adopted by rule. Section 460.38, concerning Coordination of Exchange and Distribution of Public Awareness Information, is duplicative because a rule adopting this MOU is already found at 25 TAC, §1.101. State law requires the MOU to be adopted by rule. Section 460.40, concerning Training Requirements for Identifying Abuse, Neglect, and Unprofessional or Unethical Conduct in Health Care Facilities is duplicative because department rules adopting this MOU or incorporating its requirements are already found at 25 TAC, §133.47, §134.46, §411.490, §411.641, and §448.603. Section 460.45, Distribution, is duplicative because the distribution requirements for the MOUs are found in internal department policies.
Repeal of Division 4, §§460.51 - 460.67, Internal Audits and Investigations, is necessary because the department's internal and external audit powers and duties reside in policy rather than in rule. The Texas Internal Auditing Act, found in Texas Government Code, Chapter 2102, does not require agencies to adopt rules for internal auditing practices.
Repeal of the rules in Chapter 460, Subchapter B, §460.101 and §460.102, Procurement, and Subchapter C, §§460.103 - 460.105, Miscellaneous Provisions, is necessary because the sections in both subchapters are legacy TCADA rules concerning powers and duties which either were transferred to the commission in House Bill 2292, exist elsewhere in state law or department or commission rules, reside in department policy rather than in rule, or refer to legacy agency TCADA. Section 460.101, Procurement, and §460.102, Procurement Protests, are redundant because they are part of the requirements placed on health and human services agencies by state law at Texas Government Code, §2155.144, Procurements by Health and Human Services Agencies; commission procurement rules found in 1 TAC, Chapter 391; state law and Texas Building and Procurement Commission rules concerning historically underutilized businesses (HUB); and current department rules concerning HUBs at 25 TAC, §1.171. Sections 460.103 - 460.105 are rules specific to TCADA, which no longer exists.
COMMENTS
The department, on behalf of the commission, did not receive any comments regarding the proposed rules during the comment period.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Lisa Hernandez, certifies that the rules, as adopted, have been reviewed by legal counsel and found to be a valid exercise of the agencies' legal authority.
Subchapter A. TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL RETARDATION
Division 2. FRAUD AND ABUSE AND RECOVERY OF BENEFITS
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 February 22, 2008.
TRD-200801077
Lisa Hernandez
General Counsel
Department of State Health Services
Effective date: March 13, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 458-7111 x6972
25 TAC §§460.31 - 460.35, 460.37, 460.38, 460.40, 460.45
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 February 22, 2008.
TRD-200801078
Lisa Hernandez
General Counsel
Department of State Health Services
Effective date: March 13, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 February 22, 2008.
TRD-200801079
Lisa Hernandez
General Counsel
Department of State Health Services
Effective date: March 13, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 February 22, 2008.
TRD-200801080
Lisa Hernandez
General Counsel
Department of State Health Services
Effective date: March 13, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 458-7111 x6972
STATUTORY AUTHORITY
The repeals are authorized by Government Code, §531.0055, and Health and Safety Code, §1001.075, which authorize the Executive Commissioner of the Health and Human Services Commission to adopt rules and policies necessary for the operation and provision of health and human services by the department and for the administration of Health and Safety Code, Chapter 1001.
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 February 22, 2008.
TRD-200801081
Lisa Hernandez
General Counsel
Department of State Health Services
Effective date: March 13, 2008
Proposal publication date: December 14, 2007
For further information, please call: (512) 458-7111 x6972