TITLE 1. ADMINISTRATION

PART 2. TEXAS ETHICS COMMISSION

CHAPTER 12. SWORN COMPLAINTS

SUBCHAPTER C. INVESTIGATION AND PRELIMINARY REVIEW

1 TAC §12.85

The Texas Ethics Commission (the Commission) adopts an amendment to Texas Ethics Commission Rules §12.85, which sets procedures for preliminary review hearings. The amendment is adopted without changes to the proposed text as published in the October 13, 2017, issue of the Texas Register (42 TexReg 5606) and will not be republished.

Rule 12.85 states that the executive director and respondent may present relevant evidence at a preliminary review hearing. The amendment provides that Commission staff may present such evidence, as the executive director assists the Commission during hearings. The amended rule also clarifies that staff and a respondent may present an opening and closing statement at a preliminary review hearing.

No public comments were received on this amended rule.

The amended rule §12.85 is adopted under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Chapter 571 of the Government Code.

The amended rule §12.85 affects Subchapter E of Chapter 571 of the Government Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 12, 2017.

TRD-201705095

Seana Willing

Executive Director

Texas Ethics Commission

Effective date: January 1, 2018

Proposal publication date: October 13, 2017

For further information, please call: (512) 463-5800


1 TAC §12.87

The Texas Ethics Commission (the Commission) adopts an amendment to Texas Ethics Commission Rules §12.87, which sets procedures for preliminary review hearings. The amendment is adopted without changes to the proposed text as published in the October 13, 2017, issue of the Texas Register (42 TexReg 5607) and will not be republished.

The rule is amended to codify the process after the Commission determines there is credible evidence of a violation following a preliminary review hearing. The rule provides that after such a determination, Commission staff will send a proposed resolution to the respondent within 10 days. Within 30 days after the respondent receives the proposed resolution (or by a later date determined by the Commission), staff must receive from the respondent either the signed proposed resolution, a written counter offer, or a written request to hold a formal hearing. Staff can also request a formal hearing if the respondent does not respond as required by the rule. Staff would be required to report to the Commission any written counter offer or request for a formal hearing. After a written counter offer or written request for a formal hearing is reported to the Commission, the Commission shall, by at least six votes, either accept the counter offer (if any) or order a formal hearing.

The amended rule also clarifies that the Commission's authority to agree to the settlement of a complaint is not limited by the rule. This allows the Commission to send revised proposed orders to a respondent or reach an agreement with a respondent at any time.

Currently, §12.87 requires a complaint to be dismissed if the Commission does not "issue a decision under §571.126 of the Government Code" within 180 days after a preliminary review hearing. The amendment requires dismissal if no formal hearing is ordered within 180 days after a preliminary review hearing concludes. The executive director could also extend that deadline under existing rules.

No public comments were received on this amended rule.

The amended rule §12.87 is adopted under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Chapter 571 of the Government Code.

The amended rule §12.87 affects Subchapter E of Chapter 571 of the Government Code.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 12, 2017.

TRD-201705096

Seana Willing

Executive Director

Texas Ethics Commission

Effective date: January 1, 2018

Proposal publication date: October 13, 2017

For further information, please call: (512) 463-5800


PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER F. PHARMACY SERVICES

DIVISION 4. LIMITATIONS

1 TAC §354.1863

The Texas Health and Human Services Commission (HHSC) adopts amended §354.1863, concerning Prescription Requirements, with changes to the proposed text as published in the July 28, 2017, issue of the Texas Register (42 TexReg 3717).

BACKGROUND AND JUSTIFICATION

The Code of Federal Regulations, 42 CFR §455.410, requires that all ordering and referring physicians or other professionals providing services under the Medicaid state plan or under a waiver of the plan be enrolled as participating providers.

This amendment aligns §354.1863 with federal law, requiring that a prescribing provider be enrolled in Texas Medicaid.

The Centers for Medicare & Medicaid Services recently clarified that CFR §455.410 applies only to fee-for-service providers and in-network managed care providers, and does not apply to out-of-network managed care providers.

COMMENTS

The 30-day comment period ended August 25, 2017.

During this period, HHSC received comments regarding the proposed rule from the Alliance of Independent Pharmacists and the Coalition for Nurses in Advanced Practice.

Comment: One commenter expressed concern that requiring prescribing providers to be enrolled with Medicaid might impact clients' access to medications. The commenter suggested allowing for a grace period for a limited time during which pharmacies would have the ability to override denials of claims due to the prescriber not being enrolled.

Response: HHSC did not amend the rule as a result of the comment, but will be implementing a temporary grace period.

Comment: One commenter stated that when state law and HHSC policy do not allow an advanced practice registered nurse (APRN) to prescribe certain medications, medical devices, or medical supplies that are medically necessary, the APRN's delegating physician must sign the prescription. According to the commenter, if the delegating physician is not enrolled in Medicaid, then the client will incur additional costs as a result of the proposed rule. The commenter stated that an exemption similar to the one included for prescriptions signed by resident physicians, should also be provided for a physician delegating prescriptive authority to an APRN enrolled as a Texas Medicaid provider.

Response: HHSC did not amend the rule as a result of the comment. Federal law allows state Medicaid agencies to exempt provider types that cannot enroll in the Medicaid program from the ordering and referring enrollment requirement. Since physician residents participating in a postgraduate training program do not have full licensure, and therefore cannot enroll in Medicaid, HHSC exempted these providers from the ordering and referring enrollment requirement; however, their licensed supervising physician must be reported as the ordering, referring, or prescribing provider on claims for services that are ordered, referred, and prescribed and must be enrolled. Federal law does not allow state Medicaid agencies to exempt provider types that can enroll in Medicaid from the ordering and referring enrollment requirement. Since physicians can enroll in Medicaid, HHSC cannot exempt these providers from the ordering and referring enrollment requirement.

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which provide HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas.

§354.1863.Prescription Requirements.

(a) Payment for pharmaceuticals can be made only when these pharmaceuticals are prescribed by a practitioner that is either:

(1) licensed to prescribe legend drugs and enrolled as a Texas Medicaid provider; or

(2) a physician resident participating in a postgraduate training program and under the supervision of a teaching physician who is enrolled as a Texas Medicaid provider.

(b) The pharmacist must ensure that the original prescription conforms to the Texas State Board of Pharmacy rules concerning the records to be maintained by a pharmacy. A signed prescription must be maintained in the dispenser's file and available for audit at any reasonable time. Telephone orders, where legal, must be documented in writing. The name of the prescriber and the signature of the dispensing pharmacist must be documented. If a pharmacy maintains prescription records in a data processing system, a hard copy of the prescription must be retained on file unless the daily log includes all the information required in §354.1901 of this title (relating to Pharmacy Claims). The provider must conform to all regulations issued by the Drug Enforcement Administration and Texas State Board of Pharmacy concerning the recording of prescriptions in a data processing system.

(c) Pharmaceuticals dispensed in disasters under §354.1868 of this subchapter (relating to Exceptions in Disasters) are not subject to the requirements in subsection (b) of this section.

(d) Prescriptions for covered pharmaceuticals submitted to a pharmacy in written form are eligible for payment only if the prescription is executed on tamper-resistant prescription paper, as required by §1903(i)(23) of the Social Security Act (42 U.S.C. §1936b(i)(23)).

(e) The dispensing pharmacist must date the prescription and initial the refills.

(f) A teaching physician as described in subsection (a) of this section is not required to co-sign orders written by a resident, provided the Medicaid recipient's medical record clearly documents the teaching physician's identifiable supervision of the resident.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on December 14, 2017.

TRD-201705179

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: January 15, 2018

Proposal publication date: July 28, 2017

For further information, please call: (512) 487-3434