TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 371. MEDICAID AND OTHER HEALTH AND HUMAN SERVICES FRAUD AND ABUSE PROGRAM INTEGRITY

The Texas Health and Human Services Commission (HHSC) adopts amendments to Subchapter B, Office of Inspector General, §371.1, concerning Definitions; and Subchapter E, Provider Disclosure and Screening, §371.1005, concerning Disclosure Requirements; §371.1009, concerning Verifications Required for Each Screening Level; §371.1011, concerning Recommendation Criteria; and §371.1015, concerning Types of Provider Enrollment Recommendations, without changes to the proposed text as published in the August 12, 2016, issue of the Texas Register (41 TexReg 5850) and will not be republished.

BACKGROUND AND JUSTIFICATION

HHSC adopts these amendments to align enrollment regulations with statute, to clarify the enrollment regulations, and to delete obsolete provisions.

The amendments to §371.1011 implement Texas Government Code §531.1032, adopted in 2015 by the passage of Senate Bill 207 (S.B. 207). See Act of May 31, 2015, 84th Leg., R.S., ch. 945, §2, 2015 Tex. Gen. Laws. S.B. 207 amended various provisions in Texas Government Code Chapter 531 related to the Office of Inspector General's (OIG's) authority and duties. Texas Government Code §531.1032, as adopted by S.B. 207, requires the adoption of rules that outline the criminal history record information, by provider type, that could result in exclusion of a person from Medicaid as a provider. The statute also prohibits the OIG from conducting a criminal history record check on healthcare providers whose licensing authority already requires the submission of fingerprints for criminal background checks unless the check is required or appropriate for other reasons, such as a fraud, waste, or abuse investigation.

The amendments to §371.1 clarify that the enrollment procedures apply to reenrollment. Obsolete definitions are repealed.

The amendments to §371.1005 also clarify that providers, applicants, and persons are subject to disclosure screenings.

In addition, the amendments to §371.1009 implement guidance issued by the Centers for Medicare & Medicaid Services (CMS) that states may rely upon on-site inspection visits performed by CMS. The amendments also reassign the on-site inspection function to the HHSC Medicaid/CHIP Division.

Finally, the amendments to §371.1015 lengthen the amount of time that the applicant has to request an informal desk review by the OIG, based on concern expressed by previous applicants.

HHSC intends that any obligations or requirements that accrued under Chapter 371 before the effective date of these rules will be governed by the prior rules in Chapter 371, and that those rules continue in effect for this purpose. HHSC does not intend for the amendments to the rules in Chapter 371 to affect the prior operation of the rules; any prior actions taken under the rules; any validation, cure, right, privilege, obligation, or liability previously acquired, accrued, accorded, or incurred under the rules; any violation of the rules or any penalty, forfeiture, or punishment incurred under the rules before their amendment; or any investigation, proceeding, or remedy concerning any privilege, obligation, liability, penalty, forfeiture, or punishment. HHSC additionally intends that any investigation, proceeding, or remedy may be instituted, continued, or enforced, and the penalty, forfeiture, or punishment imposed, as if the rules had not been amended.

HHSC intends that should any sentence, paragraph, subdivision, clause, phrase, or section of the amended or new rules in Chapter 371 be determined, adjudged, or held to be unconstitutional, illegal, or invalid, the same shall not affect the validity of the subchapter as a whole, or any part or provision hereof other than the part so declared to be unconstitutional, illegal, or invalid, and shall not affect the validity of the subchapter as a whole.

COMMENTS

The 30-day comment period ended September 12, 2016. During this period, HHSC received comments regarding the rules from one commenter: the Texas Medical Association. A summary of the comments relating to the rules and HHSC’s responses follows.

Comment: The commenter supports the new rules, as they are consistent with the intent of Senate Bill 207.

Response: HHSC appreciates the commenter's support.

Comment: The commenter is concerned that the amendments to §371.1011 do not allow a provider to explain the circumstances behind the provider's criminal history. The commenter notes that the rule requires the Inspector General to consider a number of factors when making a recommendation concerning the provider's enrollment, such as the extent of the provider's rehabilitation efforts, but the amendments only require that the provider submit information concerning "the degree to which a person could interact with Medicaid recipients as a provider." The commenter asks that §371.1011 be further amended to allow the provider an opportunity to explain the circumstances behind the provider's criminal history.

Response: HHSC made no changes in response to this comment. An informal desk review process, outlined in 1 TAC §371.1015, already allows the provider an opportunity to explain the circumstances behind the provider's criminal history.

Comment: The commenter is concerned that the rules as amended do not require the Inspector General to consider whether convictions were expunged or thrown out. The commenter acknowledges that prior convictions are relevant to the determination that the Inspector General makes concerning a provider's fitness to enroll in Medicaid; however, the fact that those convictions may have been thrown out is also relevant and less weight should be given to those convictions.

Response: HHSC made no changes in response to this comment. As noted in the response to the previous comment, an informal desk review process exists that allows the provider to provide information concerning the provider's criminal history, including aggravating and mitigating factors, which will be considered to the extent allowed by federal and state law.

Comment: The commenter is also concerned that the rules as amended impose stricter standards for Medicaid eligibility than those for a medical license. The Occupations Code requires persons seeking a medical license to submit information regarding felonies and certain serious and relevant misdemeanors. The rules as amended seek information about all felonies and all misdemeanors, including those that have been expunged or thrown out.

Response: HHSC made no changes in response to this comment. State and federal law requires consideration of a provider's criminal history, without limitation, before making a determination about enrolling a provider. As noted in previous responses, an informal desk review process allows the provider to provide context concerning the provider's criminal history.

Comment: Finally, the commenter expressed concern that the amendments to §371.1011 do not give a provider enough time to provide the information required under the rule. The amended rule requires the provider to provide the information "within three business days of an IG request." The commenter believes that this timeline is unreasonable and ambiguous, as it does not specify whether those three days start on the date of the IG request or some other date, and is too tight for a provider.

Response: HHSC made no changes in response to this comment. Texas Government Code §531.1034 gives the Inspector General 10 days to provide a recommendation to HHSC, and the three day deadline is included in this rule to accommodate that. However, the Inspector General's office may grant additional time upon request, if appropriate.

SUBCHAPTER B. OFFICE OF INSPECTOR GENERAL

1 TAC §371.1

STATUTORY AUTHORITY

The amendment is adopted under Texas Government Code §531.102(a-2), which requires the Executive Commissioner to work in consultation with the Office of Inspector General to adopt rules necessary to implement a power or duty of the office; 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, to administer Medicaid funds, and to adopt rules necessary for the proper and efficient regulations of the Medicaid program. The rule specifically implements Texas Government Code §531.1032.

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 January 23, 2017.

TRD-201700309

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: February 12, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 424-6900


SUBCHAPTER E. PROVIDER DISCLOSURE AND SCREENING

1 TAC §§371.1005, 371.1009, 371.1011, 371.1015

STATUTORY AUTHORITY

The amendments are adopted under Texas Government Code §531.102(a-2), which requires the Executive Commissioner to work in consultation with the Office of Inspector General to adopt rules necessary to implement a power or duty of the office; 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, to administer Medicaid funds, and to adopt rules necessary for the proper and efficient regulations of the Medicaid program. The rule specifically implements Texas Government Code §531.1032.

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 January 23, 2017.

TRD-201700310

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Effective date: February 12, 2017

Proposal publication date: August 12, 2016

For further information, please call: (512) 424-6900