TITLE 1. ADMINISTRATION

PART 4. OFFICE OF THE SECRETARY OF STATE

CHAPTER 81. ELECTIONS

The Office of the Secretary of State ("SOS") proposes to revise Subchapters F and G concerning primary election funding by amending Subchapter F, Primary Elections, §§81.101, 81.102, 81.106, 81.107, 81.109, 81.112 - 81.114, 81.118, 81.119, 81.122, 81.123, 81.125 - 81.131, 81.135 and adding new §81.136; and amending Subchapter G, Joint Primary Elections, §81.155. The proposed new and amended sections concern the financing of the 2018 primary elections with state funds, including the determination of necessary and proper expenses relating to the proper conduct of primary elections by party officials and the procedures for requesting reimbursement by the parties for such expenses. In addition, these proposed changes incorporate changes mandated by the 85th Texas Legislature.

The proposed amendments to §81.101 reflect certain changes made by HB 1735, 85th Texas Legislature. Specifically, the proposed amendments require expense reporting by voting system vendors, county chairs, and county elections officers and require direct payment from the SOS to the aforementioned entities. The proposed amendments also describe the reporting payment procedures.

The proposed amendments to §81.107 reflect certain other changes made by HB 1735, 85th Texas Legislature, by extending the deadline to August 31, 2018, for final cost reports and the return of surplus primary funds to the SOS. The proposed amendments also make other stylistic and clarifying changes.

The proposed amendments to §81.109 clarify that no charge may be made for a public building used as a polling place or central counting station if the building is normally open the day of the election, including a charge for personnel, utilities, or other expenses incurred before or after regular business hours. This mimics the language in §43.033, Texas Election Code. The rule also clarifies that the county may not charge for county-owned equipment without statutory authority. Lastly, the rule is being amended to reflect language in HB 1735, 85th Texas Legislature, which prohibits signs indicating the location of a primary election or primary runoff election, with certain content, sizes, and formats.

The proposed amendments to §81.112 reflect certain changes made by HB 1735, 85th Texas Legislature, by requiring county chairs to notify the state chair of replacement nominees for a place on the general election ballot in accordance with §145.036 or §202.006, Texas Election Code. The rule also allows the state chair to comply with the electronic submission requirements of §172.029 of the Texas Election Code on behalf of the county chair in instances where the county chair is unable or unwilling to comply with those requirements. In addition to minor stylistic changes, the proposed amendments to §81.112 also specify procedures for the submission of the electronic affidavit associated with the final list of candidates and results in §§172.029, 172.117, and 172.122 of the Texas Election Code.

The proposed amendment to §81.114 clarifies that a discounted expenditure, such as a reduced rate for leasing space, does not exempt the cost from the conflict of interest rule.

The proposed amendments to §81.119 clarify what costs are attributable to the county chair's compensation authorized under §173.004, Texas Election Code and the county election officer's not-to-exceed ten (10) percent, but no less than $75.00, "general supervision fee" authorized under §31.100, Texas Election Code.

The proposed amendments to §81.122, in addition to a minor stylistic change, clarify that the county chair is responsible for following all applicable federal and state tax laws for all workers paid with primary funds, including election judges and clerks.

The proposed amendment to §81.123 removes election law books and miscellaneous expenses as categories under administrative costs. The proposed repeal to subsection (i) ensures primary funds are maximized for costs directly related to the election rather than administrative costs.

The proposed amendment to §81.126 codifies the standing practice of not reimbursing for meals at the county chair election law seminar hosted by the SOS.

The proposed amendment to §81.128 clarifies that personal landlines and personal cellular phone charges are not reimbursable with primary funds.

The proposed amendments to §81.129 clarify that discounted office space does not exempt the expense from the conflict of interest rule (§81.114, Conflicts of Interest). The proposed amendments also clarify that utilities are subject to a 30% maximum reimbursement if the party maintains the lease unrelated to the conduct of the primary. In addition, the proposed amendments provide that if the party maintains a lease unrelated to the primary, the SOS will not reimburse the party for a second lease without prior approval from the SOS.

The proposed amendments to §81.131 reflect, in part, certain changes made by HB 1735, 85th Texas Legislature. Specifically, the proposed amendments require expense reporting to the SOS by the county election officer pursuant to a primary election service contract who will then receive direct payment from the SOS. They also stipulate that the not-to-exceed ten (10) percent, but no less than $75.00, "general supervision fee" authorized under §31.100, Texas Election Code, will be applied to those costs, except in instances in which the county election officer subcontracts with a third party vendor that assesses a surcharge or administrative fee. The proposed amendments also clarify that the county election officer may not charge a flat fee for a service unless authorized by statute; however, charges may be set at a rate of up to ten (10) percent of the annual license and maintenance fees for the software used to create the ballot style and program the electronic voting equipment.

In addition to minor clarifying changes, the proposed amendments to §81.135 reflect changes made by HB 1735, 85th Texas Legislature, to allow a state party to contract with the county election officer in certain circumstances to conduct a primary election that is required for the nomination of a political party for a multicounty district office (this is also already permitted for statewide and presidential primary elections).

Proposed new §81.136 reflects changes made by HB 1735, 85th Texas Legislature. Specifically, it allows the state chair to fulfill certain administrative duties on behalf of the county chair, including accepting funds, submitting reports, and conducting the ballot drawing in certain circumstances.

The proposed amendments to §81.155 reflect the August 31 submission deadline imposed by HB 1735, 85th Texas Legislature, and modify the language such that it is not limited to the county chair, and thus may also apply to the county election officer.

The proposed amendments to §§81.102, 81.106, 81.113, 81.118, 81.125, 81.127, and 81.130 make stylistic or minor clarifying changes.

The proposed new and amended sections are necessary for the proper and efficient conduct of the 2018 primary elections. It is in the public interest to establish adequate procedures to ensure most efficient use of state funding.

Keith Ingram, Director of Elections, has determined that, for the first five-year period the new section is in effect, there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rules.

Keith Ingram has also determined that, for each year of the first five years the proposed rules are in effect, the public benefit anticipated as a result of enforcing the sections will be the proper conduct of the 2018 primary elections by party officials with the aid of state money appropriated for that purpose. There will be no effect on small or micro-businesses or rural communities. There will be no anticipated economic cost to the state or the county chairs of the Democratic and Republican parties, and, accordingly, no costs are imposed on any regulated persons by the changes.

Written comments of the proposal may be submitted to the Office of the Secretary of State, Keith Ingram, Director of Elections, P.O. Box 12060, Austin, Texas 78711. Comments may also be sent via E-mail to: elections@sos.texas.gov. For comments submitted electronically, please include "Proposed 2018 Primary Rules" in the subject line. Comments must be received no later than twenty (20) days from the date of publication of the proposal in the Texas Register. Comments should be organized in a manner consistent with the organization of the proposed rule. Questions concerning the proposed rule may be directed to Elections Division, Office of the Texas Secretary of State, at (512) 463-5650.

SUBCHAPTER F. PRIMARY ELECTIONS

1 TAC §§81.101, 81.102, 81.106, 81.107, 81.109, 81.112 - 81.114, 81.118, 81.119, 81.122, 81.123, 81.125 - 81.131, 81.135, 81.136

The amendments and new rule are proposed under the Texas Election Code, §31.003, which provides the SOS with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. It also allows the SOS in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule changes are also proposed under Texas Election Code, §173.006, which authorizes the SOS to adopt rules consistent with the Texas Election Code that reduce the cost of the primary elections or facilitate the holding of the elections within the amount appropriated by the legislature for that purpose. §§172.117, 172.122, 172.127, 172.128, 172.130, and 173.0833 (where relevant, as amended by HB 1735, 85th Texas Legislature) of the Texas Election Code, also provide the SOS with rulemaking authority by their terms.

No other sections are affected by the proposed rules.

§81.101.Primary and Runoff Election Cost Reporting [Estimate]; Receipt of State Funds.

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

(1) SOS--Office of the Secretary of State.

(2) Primary--An election held by a political party under Chapter 172 of the Texas Election Code to select its nominees for public office, and, unless the context indicates otherwise, the term includes a presidential primary election.

(3) Runoff--An election held to determine the nomination if no candidate for nomination to a particular office receives the vote required for nomination in the general primary election.

(4) County election officer--County election administrator, county clerk, or county tax assessor-collector, depending on the county, responsible for election duties in the county.

(5) Vendor--Any company with a voting system certified for use in Texas by the SOS.

(b) [(a)] This subchapter applies to the use and management of all primary funds.

(c) [(b)] Approval by the Secretary of State ("SOS") of a primary cost estimate does not relieve the recipient of primary funds including, but not limited to, the state chair of a political party, the county chair of a political party, [any employee paid from the primary fund, or] the county election officer, or a voting system vendor, of their responsibility to comply with administrative rules issued by the SOS, or with any statute governing the use of primary funds.

(d) [(c)] The SOS shall provide a primary cost estimate for each county political party broken into three categories, as applicable:

(1) The SOS will provide an estimate for [to] each expense incurred by the county chair based on 75% of the final approved "non-contracted" costs less non-state appropriated financing sources (e.g., filing fees) for the most recent comparable election for which data is available as determined by the SOS. In order to receive the primary estimate payment, the chair must submit to the SOS a primary cost estimate via the [SOS] online primary finance system prescribed by the SOS. If data is not available to create a pre-populated cost estimate or if the chair wishes to amend the pre-populated estimate, the chair may enter the appropriate data in the SOS online primary finance system.

(2) The SOS will provide an estimate for each expense incurred by the county election officer based on 75% of the final approved "contracted" costs for the most recent comparable election for which data is available as determined by the SOS. In order to receive the primary estimate payment, the county election officer must submit to the SOS a primary cost estimate via the online primary finance system prescribed by the SOS. If data is not available to create a pre-populated cost estimate or if the county election officer wishes to amend the pre-populated estimate, the county election officer may enter the appropriate data in the SOS online primary finance system.

(3) Pursuant to §173.0833 of the Texas Election Code, vendors that provide services and materials for use in a primary election shall invoice the SOS directly. That data will be imported by the SOS into the appropriate county party primary cost estimate. The spreadsheet shall comply with the following requirements:

(A) In October preceding the March primary election, vendors shall submit a single, comprehensive spreadsheet in the format prescribed by the SOS that includes data for each county primary election for which the vendor is providing services or materials.

(B) Only expenses that are billable to the primary fund may be included. Expenses including, but not limited to, early voting kits and supplies, "I Voted" stickers, and party convention supplies, must appear on a separate invoice billed to the county election officer or the party, as appropriate.

(C) If a cost is to be split between both parties, the split costs must appear separately on the spreadsheet.

(D) The vendor must identify whether the county chair or the county election officer is ordering the service. The county chair earns five (5) percent calculated against the cost of the services ordered by the chair, which is paid out by the SOS to the county chair as part of the final cost report, and the county election officer earns ten (10) percent of the cost of the services ordered by the county election officer, which is included in the estimate and final payments issued by SOS.

(E) The SOS will not make estimates available to the county chairs or the county election officers until the SOS receives the vendor spreadsheet described in this section.

(e) [(d)] If a [statewide] runoff election is conducted, the estimate payments will be calculated and paid following the same process prescribed in subsection (d) of this section with the following exceptions:

(1) Filing fees are not factored into the calculation.

(2) The vendor must provide SOS with a comprehensive spreadsheet of the estimated runoff costs within five (5) days after the date of the canvass of the primary election results. [SOS shall provide a runoff cost estimate to each county chair based on 75% of the final approved costs for the most recent comparable election for which data is available as determined by the SOS. In order to receive the runoff estimate payment, the chair must submit to the SOS a runoff cost estimate via the SOS online primary finance system.]

[(e) If data is not available to create a pre-populated cost estimate or if the chair wishes to amend the pre-populated estimate, the chair may enter the appropriate data in the SOS online primary finance system.]

(f) After the primary or runoff election, as applicable, the actual expenditures must be reported to SOS as follows:

(1) The vendors must submit a comprehensive spreadsheet that identifies the final costs and includes all applicable fields prescribed by the SOS.

(A) Only expenses that are billable to the primary fund may be included. Expenses including, but not limited to, early voting kits and supplies, "I Voted Stickers", and party convention supplies, must appear on a separate invoice billed to the county election officer or the party, as appropriate.

(B) If a cost is to be split between both parties, the split costs must appear separately on the spreadsheet.

(C) The vendor must identify whether the county chair or the county election officer is ordering the service. The county chair earns five (5) percent calculated against the cost of the services ordered by the chair, and the county election officer earns ten (10) percent of the cost of the services ordered by the county election officer.

(D) The SOS will not make final payments to the county chairs or the county election officers until the SOS receives the vendor spreadsheet described in this section.

(2) The county chair and the county election officer, if an election service contract is executed between the county executive committee and the county election officer, must submit actual expenditures via the online primary finance system prescribed by the SOS.

(A) Costs incurred by the county chair shall be reported to the SOS by the county chair. Those costs will be calculated consistent with §81.119 of this chapter (relating to County Chair Compensation).

(B) Costs incurred by the county election officer shall be reported to the SOS by the county election officer. Those costs will be calculated consistent with §81.131 of this chapter (relating to Contracting with the County Election Officer).

(g) [(f)] Section 173.0832 [173.031] of the Texas Election Code provides for direct payment from the SOS to a county election officer [of a population of 100,000 or more] who conducts a primary election under an election services contract. The SOS requires all county election officers conducting election services for a primary election to receive direct payment from the SOS. [It is the county's prerogative and responsibility to request direct payment from the state. The state is not responsible for revenue due to the county held by the county chair, such as candidate filing fees.]

[(g) A payment may not be made directly to the county unless the county chair submits the necessary data to the SOS through a primary or runoff election cost estimate or a final primary election cost report.]

[(h) For purposes of Subchapters F and G of this chapter of the Texas Administrative Code, "county election officer" refers to the county clerk, county election administrator, or county tax assessor-collector, depending on the county.]

§81.102.Primary Funds Defined.

(a) Pursuant to §173.031 and §173.032 of the Texas Election Code, a [county] primary fund is created for each [county] executive committee of a political party holding a primary election. The primary fund consists of:

(1) all filing fees accompanying an application for a place on the ballot filed with the [county] chair [and filing fees for a district office distributed by the state chair to the county chair in a county that is wholly or partly in that district];

(2) state funds paid to the [county] chair;

(3) contributions made to the [county] executive committee for the purpose of defraying primary election expenses; and

(4) the income earned by the fund.

(b) Any refund of money expended from a primary fund is considered part of the primary fund.

§81.106.Deposits.

(a) The county chair, or an authorized agent of the county chair, shall:

(1) deposit all filing fees, contributions, and miscellaneous receipts into the primary fund; and

(2) maintain an itemized list detailing the source of all funds deposited into the primary fund including, but not limited to, all candidate filings.

(b) The SOS will verify the itemized list of candidate filings against the data reported pursuant to §172.029 of the Texas Election Code [House Bill 3103, 83rd Legislature, 2013,] and §81.112 of this chapter (relating to List of Candidates and Filing Fees).

§81.107.Primary-Fund Records.

(a) The county chair shall preserve all records relating to primary-election expenses until the later of:

(1) 22 months following the primary elections; or

(2) the conclusion of any relevant litigation or official investigation.

(b) In order to receive approval of a final cost report, the county chair shall transmit copies of receipts, bills, invoices, contracts, competitive bids, petty-cash receipts for items and services and copies of all monthly bank statements, electronic bookkeeping records (i.e., Quicken or Quickbooks) or check register, and any other related materials documenting primary-fund expenditures. Purchase requisitions are not considered receipts and may not be remitted as such. The SOS reserves the right to request all receipts and related documentation.

(c) Unless otherwise provided by the SOS, not later than August 31 [July 1] of the year in which the primary elections occur, the county chair shall:

(1) comply with all final cost reporting requirements;

(2) return all unexpended and uncommitted primary funds upon SOS approval of the final cost report.

(d) If the chair does not file a final cost report, the matter may [will] be reported to the Attorney General's Office for misappropriation of funds in accordance with §81.113 of this chapter (relating to Misuse of State Funds).

§81.109.[Political-Party] Costs not Payable with Primary Funds.

(a) Pursuant to §173.001 of the Texas Election Code, only expenses necessary for and directly related to the conduct of primary elections are payable from primary funds.

(b) Political expenses and expenses for any activity forbidden by statute or rule are not payable from the primary fund. Examples of non-payable expenses include, but are not limited to, the following:

(1) expenses incurred in connection with a convention of a political party;

(2) any food or drink items;

(3) stationery not related to the conduct of the primary election;

(4) costs associated with voter-registration drives or get-out-the-vote campaigns;

(5) election notices, except for public testing announcements;

(6) early voting costs, except for ballots and early voting ballot board costs;

(7) a public building used as a polling place or central counting station if the building is normally open the day of the election, including a charge for personnel, utilities, or other expenses incurred before or after regular business hours [for business during the time of use];

(8) election worker compensation to attend training;

(9) costs for training material available through the SOS;

(10) duties a county election officer is statutorily required to perform as well as salaries of county personnel during regular business hours;

(11) voting by mail kits and postage related to mail ballots;

(12) purchases of MBBs/PEBs or other voting system items transferable to other elections;

(13) voting booths and ballot boxes owned by the county and other county-owned equipment where there is no statutory authority to charge for said equipment including, but not limited to, electronic poll books, removable voting system components, vehicles, etc;[.]

(14) a sign that is used to indicate a location of a polling place for a primary election or primary runoff election that violates any of the following criteria:

(A) a sign that refers to a candidate or measure on the ballot;

(B) a sign in which the size and format is not coordinated between the political parties holding a primary election or primary runoff election in the same county.

§81.112.List of Candidates and Filing Fees.

(a) Submission of information.

(1) Submission of filed application. Pursuant to § §172.029, 172.117, and 172.122 of the Texas Election Code [(the "Code")], for each general primary election, all state and county chairs shall electronically submit information about each candidate who files with the chair an application for a place on the ballot, including an application for the office of a political party, and shall certify the returns and the final list of candidates by electronic affidavit through the electronic submission service prescribed by SOS referenced in paragraph (2) of this subsection.

(2) Method of submission. The chair shall submit candidate information through an electronic submission service prescribed by the SOS. The SOS shall maintain the submitted information in an online database, in accordance with §172.029(b) of the Texas Election Code. The SOS is not responsible for the accuracy of the information submitted by the chair; the SOS is responsible only for providing the electronic submission service, displaying the information publicly on its website, and maintaining the online database.

(3) Information required for submission. The electronic submission service will notate the types of information that must be inputted for a complete submission of candidate information. However, the chair must submit any and all information on the candidate's application for which there is an applicable entry field on the electronic submission service.

(4) Submission deadline. A chair shall submit a candidate's information and a notation of each candidate's status not later than 24 hours after the chair completes the review of the candidate's application, in accordance with §172.029 of the Texas Election Code. By not later than the 8th day after the regular filing deadline, the chair shall submit a candidate's information and a notation concerning the candidate's status for all candidates who filed, in accordance with §172.029 of the Texas Election Code. The county chair will not be able to make modifications to the submitted information or notations on or after the 9th day after the regular filing deadline. If modifications to a candidate's information or notation are required on or after the 9th day after the regular filing deadline, such changes must be made by the state chair.

(5) Submission of nominee by executive committee. If a candidate is nominated by the appropriate executive committee for a place on the general election ballot in accordance with §145.036 or §202.006 of the Texas Election Code, the appropriate chair shall notify the state chair who shall submit the candidate's information and notation through the electronic submission service prescribed by the SOS, in accordance with §172.029 of the Texas Election Code. The submission of the candidate's information and notation shall be completed not later than 5 p.m. on the 71st day before general election day to allow for the preparation of the general election ballot by the authority printing the ballots.

(6) Time for notations. The county chair will be able to update notations to describe the status of each candidate beginning the first day after the day of the primary election. If modification to the notation is needed, the appropriate chair will update the candidate information to reflect the candidate's status from the list of notations available. The notations must be complete and accurate not later than 5 p.m. on the 71st day before general election day to allow for the preparation of the general election ballot by the authority printing the ballots.

(b) Notification of filing.

(1) County chair: delivery of candidate list. Upon submission of information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, the county chair shall notify the applicable county election officer [clerk] that candidate information has been submitted for all candidates, in accordance with §172.029 of the Texas Election Code. Notification may be sent by email, regular mail, or personal delivery, so long as it is delivered by no later than the 9th day after the regular filing deadline.

(2) State chair: notification of submission. Upon submission of information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, the state chair shall notify the applicable county chairs that candidate information has been submitted for all candidates, in accordance with §172.028 and §172.029 of the Texas Election Code. Notification may be sent by email, regular mail, or personal delivery, so long as it is delivered by no later than the ninth day after the regular filing deadline.

(3) Notification. Pursuant to §172.056(b) of the Texas Election Code, the chair shall notify the county chairs, the county election officer [clerk], or the state chair, as applicable, that a candidate filed an application that complied with the applicable requirements during the extended filing period. Notification shall be made by email, regular mail, or personal delivery.

(4) Court order. If a court orders a candidate's name to be placed on the ballot or removed from the ballot, the chair shall immediately notify the state chair [SOS].

(c) Public display and failure to submit.

(1) Public display of information. The SOS will publicly display on its website a limited portion of the information submitted by the chair. For candidates for public office, the SOS will publicly display, via its website, the candidate's name, any public mailing address and any electronic mail address at which the candidate receives correspondence relating to the candidate's campaign provided by the candidate pursuant to §141.031(a)(4)(M) of the Texas Election Code, and office sought, along with the office's corresponding precinct, district or place. For candidates for the office of a political party, the website will publicly display the name of the chair and, if applicable, the corresponding numeric identifier.

(2) Failure to submit information. If a county chair fails to electronically submit candidate information for all candidates who filed and whose applications have been reviewed and accepted for a place on the ballot, [then] the chair is directly responsible for delivering a certified list of all candidates to the state chair to comply with the electronic submission requirements of §172.029 of the Texas Election Code on behalf of the county chair.[:]

[(A) the applicable county chairs, if the submitting chair is a state chair; or]

[(B) the applicable county clerk and state chair, if the submitting chair is a county chair.]

§81.113.Misuse of State Funds.

The SOS shall refer any misuse or misappropriation of primary funds to the appropriate prosecuting authority for the enforcement of all civil and/or criminal penalties. Prosecuting authority includes but is not limited to Office of the Attorney General. Misuse of funds includes not complying with reporting requirements prescribed by the Texas Election Code or this title.

§81.114.Conflicts of Interest.

(a) No disbursements may be made from the primary fund to the county chair personally, or to an entity or business in which the party, the county chair, the county chair's spouse, or the county chair's family has a financial interest, except for payments for:

(1) election day workers;

(2) incidental administrative costs; or

(3) the county chair's compensation.

(b) For the purposes of this section, "family" is defined as individuals related within the third degree of consanguinity (blood) or the second degree of affinity (marriage).

Figure: 1 TAC §81.114(b) (No change.)

(c) Discounted expenditures, such as a reduced rate for leasing space, does not exempt the cost from this section.

§81.118.Flex Scheduling of Precinct Workers.

[(a) The county chair may hire more than two clerks if the formula provided under §81.117 of this title (relating to Number of Election Workers per Polling Place) indicates that more than two clerks are necessary.]

[(b)] The [If the formula in §81.117 of this title indicates that additional election workers are necessary, the] presiding judge may hire individuals to work in shifts. The county chair may assign clerks to work in shifts that end before the examination or counting of the ballots begins.

§81.119.County Chair's Compensation.

(a) Pursuant to §173.004 of the Texas Election Code, a county chair may receive compensation for administering primary elections.

(b) The SOS shall not authorize payment under this section until the county party's final cost report has been received, including the necessary supporting documentation required in §81.107 of this chapter (relating to Primary-Fund Records), and approved by the SOS. The SOS shall notify the county chair of the approval via email. The chair may view the approved costs by line item in the online primary finance system prescribed by SOS.

(c) After all other expenses have been paid and the final cost report has been approved by SOS, the county chair shall be paid with a check drawn on the county's primary-fund account.

(d) The SOS may deny compensation to county chairs who file delinquent final-cost reports.

(e) Legal fees and county election service contract costs incurred and reported to SOS by the county election officer will not be included in the formula for determining the county chair's compensation. [If there are services contracted with the county in which the county works with a third party but the third party is paid directly by the county chair, such as voting system vendors and election workers, the election service contract must stipulate whether the cost is applied to the county's election service contract 10 percent general supervision fee pursuant to §81.131 of this chapter (relating to Contracting with the County Election Officer) or the county chair compensation calculation.]

§81.122.Personnel Payroll Taxes and Benefits.

(a) The county chair shall follow all applicable federal and state laws with respect to payroll taxes, including election day judges and clerks. [(The County Chairs Bookkeeping Guide provides a table that sets out payroll taxes as they apply to election day workers.)]

(b) The county chair may not use primary funds to pay penalties or interest resulting from a failure to file required tax returns or from failure to pay the employer's portion of employment taxes.

(c) The county chair shall maintain copies of all federal and state payroll tax returns and forms, and keep such copies with the [county] primary records. (The county chair shall also transmit copies of these records to the SOS at the SOS's request.)

(d) The county chair may not pay for group medical, dental, life insurance or retirement benefits with primary funds.

§81.123.Administrative Personnel and Overall Administrative Costs Limited.

(a) "Administrative Personnel" means a non-election-day worker.

(b) The employment of administrative personnel is not required for the conduct of the primary elections.

(c) Pursuant to §81.114 of this chapter (relating to Conflicts of Interest), no member of the county chair's family may be paid an administrative salary from primary funds.

(d) If administrative personnel are utilized, salaries or wages for such personnel are payable from the primary fund for a period beginning no earlier than November 1 immediately preceding the primary election and ending no later than the last day of the month in which the primary election or runoff primary election, if applicable, is held.

(e) If the county chair contracts with third parties or the county election officer for election services, the overall administrative personnel costs to be submitted to the SOS for reimbursement cannot include administrative expenses provided by third parties or a county election officer. (Administrative personnel costs include, but are not limited to, polling location services, ballot ordering, and secretarial services.)

(f) The SOS may disallow full payment for administrative personnel if it is determined that the contracting county election officer substantially performed the conduct of the election.

(g) Other administrative costs chargeable to the primary fund include office rental, telephone and utilities, office furniture and equipment rental, computer purchase, office supplies, and bank fees[, election law books, and other miscellaneous expenses].

(h) In addition to the limitations set forth in the Texas statutes and Subchapters F and G of this chapter of the Texas Administrative Code, including but not limited to §§81.127, 81.128, and 81.129 of this chapter (relating to Office Equipment and Supplies, Telephone and Postage Charges, and Office Rental), the funding caps illustrated in Figure: 1 TAC §81.123(h) apply to the total administrative expenses a county chair may charge to the primary fund.

Figure: 1 TAC §81.123(h) (No change.)

[(i) County chairs may request through the online primary finance system compensation for eligible administrative costs beyond the limitations set forth in Figure: 1 TAC §81.123(h). After the SOS concludes it has received a sufficient number of final cost reports and sufficient funding is available, the SOS will distribute amendment payments that are deemed reasonable.]

§81.125.Number of Direct Record Electronic (DRE) Units or Precinct Ballot Counters per Voting Precinct.

(a) The county chair shall use the table set out in the following figure to determine the number of precinct ballot counters and DRE units allowable for each precinct.

Figure: 1 TAC §81.125(a) (No change.)

(b) If a county chair determines that the number of precinct ballot counters and/or DRE units authorized under the formula is inadequate, he or she must acquire permission from the SOS to obtain additional machines, counters, or devices.

(c) Pursuant to federal and state law, there must be at least one accessible voting unit in each precinct. If the county has insufficient accessible voting units to allow each party to conduct a separate primary in all county election precincts, then each party will need to consolidate county election precincts in accordance with §42.009 of the Texas Election Code in order to accommodate the number of accessible voting units that can be allocated to each party by the county election officer in accordance with §51.035 of the Texas Election Code. Alternatively, the parties, with the agreement of a majority of the full membership of county commissioners court and the county election officer, may conduct a joint primary under §172.126 of the Texas Election Code.

(d) In precincts that are conducting a limited joint election for purposes of sharing a polling place and an accessible voting unit, the presiding election judge from the party whose candidate for governor received the highest number of votes in the precinct or consolidated precinct in the most recent gubernatorial general election shall deliver the device(s) containing the vote totals to the general custodian. The presiding judge of the party whose candidate for governor received the highest number of votes in the precinct or consolidated precinct in the most recent gubernatorial general election may designate the presiding judge or clerk of the other party to deliver the device(s) containing the vote totals to the general custodian.

§81.126.Training Reimbursement to Attend County Chairs Election Law Seminar.

(a) Except as provided by this section, the SOS shall reimburse from the state primary fund, the actual travel expenses for the county chair or the county chair's designee who will be responsible for the primary finance bookkeeping to attend the SOS Election Law Seminar for County Chairs. (The SOS shall provide travel reimbursement forms at the seminar.)

(b) The SOS shall reimburse the county chair or the county chair's designee for:

(1) mileage (if driving personal vehicle);

(2) airfare (coach only);

(3) airport transfers;

(4) airport parking;

(5) lodging; and

(6) any other reasonable expenses related to an individual's attendance at the Election Law Seminar for County Chairs.

(c) The SOS shall use an electronic mapping tool available on the internet (including, but not limited to, Mapquest, Google Maps, or Bing Maps) to determine distances traveled to attend the Election Law Seminar for County Chairs. The SOS shall reimburse mileage claims from the county seat to and from Austin using the mileage rate approved by the State Comptroller at the time of the seminar.

(d) The SOS shall reimburse actual lodging expenses in an amount not to exceed the rates approved by the state, plus applicable taxes.

(e) As provided by the Texas General Appropriations Act, the SOS shall not make reimbursements for gratuities or tips. In addition, the SOS will not reimburse for meals.

(f) The county chair or the chair's designee must submit actual receipts to the SOS in order to be reimbursed for airfare, lodging, parking, or airport transfers.

(g) The county chair shall submit request for reimbursement no later than 60 days after the seminar. If a request for reimbursement is submitted after this date, the SOS may deny the request.

(h) Overnight lodging for two nights is approved for counties that are more than 200 miles distance from Austin; otherwise, prior approval for more than one night of lodging must be obtained from SOS.

§81.127.Office Equipment and Supplies.

(a) Rental of office equipment is not required in order to conduct primary elections.

(b) The county chair may lease office equipment necessary for the administration of the primary elections for a period beginning November 1 immediately preceding the primary election and ending not later than the last day of the month in which the primary election or runoff election primary, if applicable, is held.

(c) The county party may not rent or lease equipment in which the party, the county chair, or a member of the county chair's family has a financial interest. (See definition of "family" at §81.114(b) of this chapter (relating to Conflicts of Interest).)

(d) The county chair or party shall rent equipment from an entity that has been in business for at least 18 months and has at least three other bona fide clients and is on file with the corporation department of the SOS or locally.

(e) The purchase of office supplies must be reasonable and/or necessary for the administration of the primary election to be payable from the primary fund. [(This includes, but is not limited to, the purchase of two copies of the Texas Election Code.) ]

(f) The county chair or party may be reimbursed for the cost of incidental supplies used in connection with the primary election. (Examples of reasonable incidental supplies include paper, toner, and staples.)

(g) The county chair may not use primary funds to purchase any single office-supply item or equipment valued at over $1,500. These items are not considered the property of the party chair, rather the property of the county party, and must be transferred to the incoming party chair when a new chair takes office [become a part of the Party Primary Office and are to be transferred to the next county chair].

(h) The county chair may not pay notary public expenses from the primary fund.

(i) Computer serial numbers must be reported to SOS to ensure the asset can be tracked from one election to the next.

(j) Any computer purchased with primary funds is to be used for primary related functions. It is not considered the property of the party chair, rather the property of the county party, and must be transferred to the incoming party chair when a new chair takes office.

(k) A computer purchased with primary funds shall be used for two primary election cycles before a new computer may be purchased using primary funds.

§81.128.Telephone and Postage Charges.

(a) The SOS shall reimburse necessary telephone and postage costs incurred with respect to the administration of the primary elections beginning no earlier than November 1 immediately preceding the primary election and ending no later than the last day of the month in which the primary election or runoff primary election, if applicable, is held.

(b) Personal landline and cellular phone charges will not be reimbursed with primary funds.

§81.129.Office Rental.

(a) The rental of office space is not required for the conduct of the primary elections.

(b) The SOS shall reimburse necessary office space rental expenses incurred with respect to the administration of the primary elections for a period beginning no earlier than November immediately preceding the primary election and ending not later than the last day of the month in which the primary election or runoff primary election, if applicable, is held.

(c) If the rental of office space is necessary, the county party shall rent office space in a regularly rented commercial building. Office rent shall not exceed the fair market rate for comparable office space in the same area.

(d) Unless such services are required in accordance with the lease agreement, no payment may be made with primary funds for janitorial services, parking, or signage.

(e) The county party may not rent or lease office space in which the party, the county chair, the county chair's spouse, or the county chair's family has a financial interest. (See definition of "family" at §81.114(b) of this chapter (relating to Conflicts of Interest).) Discounted office space does not exempt the cost from §81.114 of this chapter, Conflicts of Interest.

(f) If the party leases space for the purpose of the primary only, the county chair shall transmit a copy of the three competitive bids obtained as well as the lease agreement to the SOS, along with a copy of the final cost report. [(Note:]

(g) If the party maintains a lease, unrelated to the conduct of the primary, the cost of that lease will not be reimbursed in excess of 30% of the monthly rental cost by the state as a primary expense, including utilities. In addition, if the party maintains a lease unrelated to the primary, the SOS will not reimburse the party for a second lease without prior approval from the SOS.[)]

§81.130.Payment for Use of County-Owned Equipment.

(a) §123.033 of the Texas Election Code provides for the rental rate that a county may charge for the use of its equipment. (The rental rates are $5 for each unit of tabulating equipment and $5 for each unit of electronic voting system equipment installed at a polling location.) Removable components, such as a flash drive or accessibility component, may not be charged separately.

(b) In addition to subsection (a) of this section, the [county] primary fund may be used to pay the actual expenses incurred by the county in transporting, preparing, programming, and testing the necessary equipment, as well as for staffing the central counting station.

(c) The county chair shall submit all calculations for amounts charged for the use of county-owned and non-county-owned equipment to the SOS for review with the final cost report.

(d) The county chair shall not use primary funds to pay expenses related to the use of non-county-owned equipment, including, but not limited to, ballot boxes and voting booths pursuant to §51.035 of the Texas Election Code, without approval from the SOS.

(e) Pursuant to §51.035 of the Texas Election Code, counties may not charge the county parties for use of county-owned voting booths or ballot boxes and other county-owned equipment where there is no statutory authority to charge for said equipment; however, the primary fund may pay the actual expenses incurred by the county in transporting the equipment to and from the polling places if the county provides that service.

§81.131.Contracting with the County Election Officer.

(a) The SOS has prepared a Primary Election Services Contract and a Joint Primary Election Service Contract (the "Model Contract"). Copies of the appropriate Model Contract may be obtained from the SOS.

(b) The county chair may use the Model Contract when executing an agreement for election services between the county executive committee and the county elections officer. (Contractible election services are listed in Subchapter B of Chapter 31 of the Texas Election Code.)

(c) The Model Contract may be revised as necessary to accommodate the specific agreement between the county chair and county election officer; however, activities not required by law are not payable with primary funds. Accordingly, those activities should be identified in the contract, including a stipulation as to whether the county chair or the county election officer will be responsible for the cost. Each contracting entity shall report the costs for which it is responsible via the online primary finance system prescribed by SOS. The entity that reports said expense(s) will receive direct payment from SOS for those expense(s). Costs reported by the county election officer qualify for the ten percent "general supervision fee" authorized under §31.100 of the Texas Code. Expenses reported by the county chair qualify for the county chair compensation (see §81.119 of this chapter (relating to County Chair's Compensation)).

(d) The [Before the county chair may make final payment, the] county election officer must submit to the county chair an accounting of the actual costs incurred in the performance of the election services contract. In addition, the county election officer shall report the primary-eligible expenses to SOS via the online primary finance system prescribed by SOS. [in a form prescribed by the SOS, which must be included with the final cost report.]

(e) The SOS may only pay actual costs incurred by the county and payable under provisions of the Texas Election Code, an election-services contract, or these administrative rules. Costs prohibited by this chapter that appear in the election service contract are not reimbursable with primary funds and must be articulated as such in the contract. Counties may not charge a flat fee for services unless the county can produce a methodology that demonstrates the fee is equal to or less than the actual costs incurred by the county, except when authorized by statute. Charges may be set at a rate of up to ten (10) percent of the annual license and maintenance fees for the software used to create the ballot style and program the electronic voting equipment.

(f) Salaries of personnel regularly employed by the county may not be paid from or reimbursed to the county from the primary fund even if the employee used their vacation time to perform the duties.

(g) A county election officer may not contract for the performance of any duty or service that he or she is statutorily obligated to perform.

[(h) Pursuant to §31.098 of the Texas Election Code, if authorized in the contract, county election officers who contract or conduct joint primaries must pay all bills for items they order on behalf of the parties, and seek reimbursements from the parties. Conversely, if a contract provides that the contracting authority (the county political party) is to pay the claims of third persons, then the county political party is responsible for payment directly to the claimant.]

(h) [(i)] §31.100 of the Texas Election Code authorizes the election officer to assess a "general supervision fee" of up to 10 percent against the amount of the contract. The general supervision fee will not be applied to any services in which the county election officer subcontracts with another vendor that assesses a surcharge or administrative fee. [If there are services contracted with the county in which the county works with a third party but the third party is paid directly by the county chair, such as voting system vendors and election workers, the election service contract must stipulate whether the cost is applied to the county's election service contract 10 percent general supervision fee or the county chair compensation calculation (see §81.119 of this chapter (relating to County Chair's Compensation)).]

[(j) County chairs are authorized to make deposits to the county election officer for contract election services prior to services being delivered consistent with §31.100 of the Texas Election Code.]

§81.135.Primary Procedure for Counties without County Party Leadership.

(a) The county election officer of a county where the county chair is vacant shall contract with the state chair of a political party under the following circumstances:

(1) There is an insufficient number of members serving on the county executive committee to fill a vacancy on the committee;

(2) The party is unable to establish a temporary executive committee under §171.027 of the Texas Election Code; and

(3) The election is required for the nomination of a political party to a statewide office, a multicounty district office, or a presidential primary election.

(b) The county election officer and the state chair shall enter into an election services contract consistent with §81.131 of this chapter (relating to Contracting with the County Election Officer), which, in accordance with §172.128 of the Texas Election Code, also provides that the county election officer shall be eligible to be reimbursed for primary election expenses in the same manner a county chair would be reimbursed under Subchapter D, Chapter 173.

(c) The state party shall report costs incurred consistent with this section to the SOS [Secretary of State] and receive funding consistent with this chapter.

§81.136.Primary Procedure Upon County Chair Request or Failure to Comply with Certain Duties.

(a) The state chair may, with the consent of the secretary of state and the county executive committee, if one exists for the county, accept money into the state primary fund on behalf of a county party. The state chair must keep records to track the money that is attributable to a county.

(b) The state chair of a party, or the state chair's designee, may submit cost reports prescribed under this chapter on behalf of a county chair if the county chair:

(1) requests the state chair to submit the statement on the county chair's behalf; or

(2) fails to submit the statement by the deadline.

(c) The state chair shall conduct the ballot drawing in accordance with §172.082 of the Texas Election Code if the county chair:

(1) requests that the state chair conduct the drawing; or

(2) fails to conduct the drawing by the deadline set in this section.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2017.

TRD-201703258

Lindsey Aston

General Counsel

Office of the Secretary of State

Earliest possible date of adoption: October 1, 2017

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


SUBCHAPTER G. JOINT PRIMARY ELECTIONS

1 TAC §81.155

The amendments are proposed under the Texas Election Code, §31.003, which provides the SOS with the authority to obtain and maintain uniformity in the application, interpretation, and operation of provisions under the Texas Election Code and other election laws. It also allows the SOS in performing such duties to prepare detailed and comprehensive written directives and instructions based on such laws. The rule changes are also proposed under Texas Election Code, §173.006, which authorizes the SOS to adopt rules consistent with the Texas Election Code that reduce the cost of the primary elections or facilitate the holding of the elections within the amount appropriated by the legislature for that purpose. §§172.117, 172.122, 172.127, 172.128, 172.130, and 173.0833 (where relevant, as amended by HB 1735, 85th Texas Legislature) of the Texas Election Code, also provide the SOS with rulemaking authority by their terms.

No other sections are affected by the proposed rules.

§81.155.Returning Surplus Funds.

Following [Immediately following] final payment of necessary expenses for conducting the joint primary elections, not later than August 31 of the year in which the primary elections occur, and upon the SOS approval of all final costs, [(but no later than July 1), the county chair shall remit any], surplus [in the] primary funds shall be remitted [fund account] to the SOS. [(The county chair shall remit the surplus regardless of whether state funds were requested by the chair.] If [the chair does not file] a final cost report is not filed with the SOS, the matter may [will] be reported to the Attorney General's Office in accordance with §81.113 of this chapter (relating to Misuse of State Funds).[)]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 21, 2017.

TRD-201703259

Lindsey Aston

General Counsel

Office of the Secretary of State

Earliest possible date of adoption: October 1, 2017

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


PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PURCHASED HEALTH SERVICES

The Texas Health and Human Services Commission (HHSC) proposes amendments to §354.1121, Definitions; and §354.1221, Authorized Dentists' Services.

BACKGROUND AND JUSTIFICATION

Current federal Medicaid rules allow Medicaid-enrolled physicians to arrange for a substitute Medicaid-enrolled physician to serve in the billing physician's practice on a short or long-term basis, known as a locum tenens arrangement. House Bill 1661, 84th Legislature, Regular Session, 2015, directed HHSC to adopt rules to allow this practice for dentists in Texas Medicaid, to the extent allowed by federal law.

HHSC staff consulted with the Centers for Medicare & Medicaid Services (CMS) staff on the federal guidance related to substitute arrangements for dentists. CMS informed HHSC that locum tenens arrangements are not allowed for dentists as they are for physicians because of the distinction drawn between "physician" and "dentist" in federal Medicaid law. Specifically, section 1902(a)(32)(C) of the Social Security Act permits a locum tenens arrangement in the case of services provided by a physician, and the definition of "physicians' services" in 42 C.F.R. §440.50 does not include services provided by a dentist.

The proposed rule amendments offer an alternate billing arrangement option to Texas Medicaid dentists. Under the billing arrangement, the substitute dentist is required to be enrolled in Medicaid. The arrangement is time limited unless the reason for the billing agent dentist's absence is active duty as a member of a reserve component in the U.S. Armed Forces.

Since the proposed rule amendments offer dentists the option of using a substitute provider during a temporary absence, the proposed changes could benefit both Medicaid dentists and Medicaid recipients.

SECTION-BY-SECTION SUMMARY

Proposed §354.1121 adds a definition for "billing agent," "HHSC," and "substitute dentist."

Proposed §354.1221 adds the option and accompanying requirements for a dentist to bill for services performed by a substitute dentist under a temporary billing arrangement. Other nonsubstantive updates are also proposed in this rule.

FISCAL NOTE

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first five-year period the amended rules are in effect, there will be no impact to costs or revenues of state or local government.

SMALL BUSINESS AND MICRO-BUSINESS IMPACT ANALYSIS

Ms. Rymal has also determined that there will be no adverse impact on small businesses or micro-businesses to comply with the amended rules, as they will not be required to alter their business practices as a result of the proposed amendments.

ECONOMIC COSTS TO PERSONS AND IMPACT ON LOCAL EMPLOYMENT

There are no anticipated economic costs to persons who are required to comply with the sections as proposed.

There is no anticipated negative impact on local employment.

PUBLIC BENEFIT AND COST

Jami Snyder, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit will be that Medicaid-enrolled dentists will have the option of using a substitute dentist during a temporary absence from their practice, thereby having the ability to continue to serve Medicaid recipients during a temporary absence.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that this proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under §2007.043 of the Government Code.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Kristie Kloss, Medical Benefits Manager, 4900 North Lamar Blvd., Mail Code H370, Austin, Texas 78751-2316; or by e-mail to kristie.kloss@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

DIVISION 10. DEFINITIONS

1 TAC §354.1121

STATUTORY AUTHORITY

This amendment is proposed 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 Medicaid program in Texas.

The proposed amendment relates to Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1121.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Advanced practice registered nurse--A registered nurse authorized by the Texas Board of Nursing to practice as an advanced practice registered nurse. The term includes a nurse practitioner, nurse-midwife, nurse anesthetist, and clinical nurse specialist.

(2) Ambulance service supplier--A person, firm, or institution approved for and participating in Medicare as an air, ground, or specialized ambulance service supplier or provider.

(3) Ambulatory surgical center--A distinct health care entity that operates exclusively for the purpose of providing certain surgical services to patients not requiring overnight inpatient hospital services. The center must meet the conditions for participation described in §354.1211 of this subchapter (relating to Conditions for Participation) and other applicable state and federal requirements.

(4) Approved laboratory--A laboratory that is independent of a hospital or physician's office and that has been approved for and is participating in Medicare and only for the procedures certified to that laboratory under Medicare.

(5) Billing agent--A business agent as described in 42 CFR 447.10(f).

(6) [(5)] Claim--A request for payment for authorized benefits on the applicable approved form meeting the established itemization requirements.

(7) [(6)] Day--With respect to inpatient hospital services, the time period of a day is counted for:

(A) hospital bed occupancy each midnight while under registration in a hospital as an inpatient;

(B) each hospital bed occupancy where admission and discharge occur on the same calendar day while under registration in a hospital as an inpatient.

(8) [(7)] Doctor--Doctor of chiropractic (chiropractor), doctor of optometry (optometrist), doctor of podiatry (podiatrist), or doctor of dentistry (doctor of dental surgery (DDS), doctor of medical dentistry (DMD), and doctor of dental medicine (DDM)).

(9) [(8)] Doctor of chiropractic, doctor of optometry, doctor of podiatry, and doctor of dentistry (DDS, DMD, or DDM)--A licensed doctor legally authorized to practice his specialty at the time and place the service is provided.

(10) [(9)] Eligible provider--An institution, facility, agency, person, partnership, corporation, or association approved for participation in the Texas Medicaid program in accordance with terms of this chapter. "Eligible provider" also includes any person, firm, or institution approved for and participating in Part B Medicare as a supplier or provider of medical services or supplies, who is not otherwise designated as an eligible Title XIX provider, and who meets the requirements stipulated in this definition, except that such eligible provider shall be an eligible Title XIX provider only for Part B Medicare services or supplies and for the Title XIX payment of the deductible and coinsurance liabilities.

(11) [(10)] Eyeglasses--Eyewear dispensed and delivered that is medically necessary and prescribed by a doctor of optometry or physician, is professionally adjudged to be necessary and appropriate for the lens, age, and sex of the eligible recipient, and significantly improves visual acuity or impedes progression of visual problems. The term "eyeglasses" does not include artificial eyes or any item of eyewear for which benefits are not provided in the rules of the Texas Health and Human Services Commission (HHSC) regarding the Medicaid eyeglass program.

(12) [(11)] Eyeglass supplier--A person, firm, or institution that has entered into a written agreement with HHSC or its designee as an eyeglass supplier on a form approved by HHSC; provided that the benefits shall be available for eyeglass services and supplies dispensed by an eyeglass supplier only if the fitting, adjustment, and repair of the eyewear involved is performed by a physician, doctor of optometry, or an optician; and provided that an eyeglass supplier is an eligible provider under this program. Such suppliers must accept the benefits paid as stipulated by HHSC as payment in full for the service and supplies involved, except as otherwise provided.

(13) [(12)] Family planning agency--A facility or institution that has been determined by HHSC or its designee to qualify as a family planning agency under standards of participation established by HHSC, including any amendment of such standards of participation authorized by HHSC. Family planning agencies shall accept as payment in full the amount paid in accordance with the benefits as stipulated by HHSC.

(14) [(13)] Health insuring agency--An organization legally operating within the state that pays for the cost of certain medical services available under the Title XIX state plan to eligible recipients in exchange for premiums paid by HHSC and which assumes an underwriting risk.

(15) HHSC--The Texas Health and Human Services Commission or its designee.

(16) [(14)] Hospital--Any institution licensed as a hospital by the appropriate licensing authority but which is not a mental institution, a health resort, nursing home, rest home, or any other institution primarily providing convalescent or custodial care or which is otherwise excluded under this chapter.

(17) [(15)] Illness--A bodily disorder, bodily injury, disease, or mental disease.

(18) [(16)] Inpatient--A person registered and assigned a medical record number by a hospital for bed occupancy in that hospital.

(19) [(17)] Institution for mental diseases (IMD)--As defined in 25 TAC §419.453(17) (relating to Definitions).

(20) [(18)] Medicaid program--The Texas Medical Assistance Program, a joint federal and state program provided for in Chapter 32, Texas Human Resources Code, and subject to Title XIX of the Social Security Act, 42 U.S.C. §1396 et seq.

(21) [(19)] Mental disease or disorder--Any condition classified as a neurosis, psychoneurosis, psychopathy, psychosis, or personality disorder.

(22) [(20)] National provider identifier--The identification number required under §1128J(e) of the Social Security Act (42 U.S.C. §1320a-7k(e)).

(23) [(21)] Nonmedical public institution--An institution or facility that is either a unit of, or under the administrative control of a state, federal, or local government and that is not approved for participation in the Medicaid program.

(24) [(22)] Out-of-state hospital--A hospital located outside of the State of Texas that participates as a general or acute care hospital or both under Medicare or Title XIX, or both. Examples of institutions that are excluded are institutions primarily for mental disease or pulmonary care, a health resort, a nursing home, a rest home, or any other institution primarily providing convalescent or custodial care or that is otherwise excluded under this chapter.

(25) [(23)] Outpatient--A person registered by a hospital for outpatient services but not as an inpatient.

(26) [(24)] Physician--A doctor of medicine or doctor of osteopathy (MD or DO) legally authorized to practice medicine or osteopathy at the time and place the service is provided.

(27) [(25)] Physical therapist--A graduate of a program of physical therapy approved by the Commission on Accreditation in Physical Therapy Education (or one of the previously recognized accreditation bodies), and licensed by the state in which the services are performed.

(28) [(26)] Physical therapist assistant--A person licensed by the appropriate state licensure board as a physical therapist assistant and who provides physical therapy under the direction of a licensed physical therapist.

(29) [(27)] Physical therapy--Restorative services prescribed by a physician and provided to a recipient by a qualified physical therapist. It includes any necessary supplies and equipment.

(30) [(28)] Prescription--A signed written or electronic order by a physician or other healthcare practitioner acting within the scope of his or her licensure. This includes a verbal order subsequently countersigned by the practitioner or verified by the pharmacist.

(31) [(29)] Psychologist--A person who is licensed to practice as a psychologist in the state in which the service is performed.

(32) [(30)] Recipient month--A calendar month of continuous eligibility for one individual under the Medicaid program. Each month covers eligibility for only one eligible recipient. Multiple recipient months may cover eligibility for one or more eligible recipients or eligibility for the same individual if prior months are involved. Additional months of recipient eligibility may occur due to:

(A) certification of eligibility for up to three months prior to date of application;

(B) eligibility for those individuals who are certified to be eligible recipients after a first of the month;

(C) eligibility certified retroactively;

(D) certification of four months post eligibility for certain individuals in the non-Medicare related aid to families with dependent children coverage group; or

(E) appropriately identified error adjustments.

(33) [(31)] Respiratory care practitioner--A person certified to practice respiratory care as defined in the Occupations Code, Chapter 604, relating to Respiratory Care Practitioners.

(34) [(32)] Semiprivate room--A two-bed, three-bed, or four-bed accommodation.

(35) [(33)] State fiscal year--The 12-month period beginning September 1 and ending August 31.

(36) [(34)] State plan--The plan for administration of the Medicaid program which is approved by the secretary of health and human services in accordance with the provisions of Title XIX of the Social Security Act, as amended.

(37) Substitute dentist--A doctor of dentistry (DDS, DMD, or DDM) who provides services in place of another dentist of the same license type under a billing arrangement. These arrangements must comply with Medicaid policy, billing, reporting, and documentation requirements.

(38) [(35)] Therapeutic optometrist--A person certified by the Texas Optometry Board to practice therapeutic optometry in accordance with the Texas Optometry Act. References in this chapter to optometrists include therapeutic optometrists.

(39) [(36)] Third-party billing vendor--A vendor that submits claims to HHSC, or its designee, for reimbursement on behalf of a provider of medical services under the Medicaid program.

(40) [(37)] Third-party liability--The resources that an eligible recipient may have which serve as a source of payment for services provided under the Medicaid program.

(41) [(38)] Title XIX hospital--A hospital that is participating as a hospital under Medicare, that has in effect a utilization review plan approved by HHSC applicable to all eligible recipients to whom it provides services or supplies, and has been designated by HHSC as a Title XIX hospital or a hospital not meeting all of the requirements listed in this definition but which provides services or supplies for which benefits are provided under Medicare, the Social Security Act, §1814(d), or would have been provided under such section had the recipients to whom the services or supplies are provided been eligible for and enrolled under Part A of Medicare, to the extent of such services and supplies only, and then only if such hospital has been designated by HHSC as a Title XIX emergency care only hospital, or has been approved by HHSC to provide emergency hospital services and agrees that the reasonable cost of such services or supplies, as defined in the Social Security Act, §1902(a)(13), will be such hospital's total charge for such services and supplies.

(42) [(39)] Title XIX spell of illness--With respect to inpatient hospital services, spell of illness is a continuous period of hospital confinement. Successive periods of hospital confinement are considered to be continuous unless the last date of discharge and the date of readmission are separated by at least 60 consecutive days.

(43) [(40)] Utilization review--The methods and procedures related to the review of utilization of covered care and services with respect to medical necessity and to safeguard against inappropriate utilization of care and services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2017.

TRD-201703138

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 1, 2017

For further information, please call: (512) 462-6276


DIVISION 14. DENTISTS' SERVICES

1 TAC §354.1221

STATUTORY AUTHORITY

This amendment is proposed 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 Medicaid program in Texas.

The proposed amendment relates to Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1221.Authorized Dentists' Services.

(a) Dentists' services provided by a doctor of dentistry (DDS, DMD, or DDM), as defined in §354.1121 [§29.1001] of this subchapter [chapter] (relating to Definitions [General Definitions for Purchased Health Services]), are covered by the Texas Medicaid Program [Medical Assistance Program] if the services:

(1) are within the dentist's scope of practice, as defined by state law; and

(2) would be covered by the Texas Medicaid [Medical Assistance] Program when they are provided by a licensed physician (MD or DO).

(b) Substitute dentist. A dentist may act as a billing agent, pursuant to 42 CFR 447.10, to submit claims. To qualify for reimbursement, the billing agent dentist and substitute dentist must comply with the following requirements:

(1) The substitute dentist must be licensed to practice in the state of Texas.

(2) Consistent with the requirements of §371.1605 and §371.1705 of this title (relating to Provider Responsibility and Mandatory Exclusion, respectively), the substitute dentist must be enrolled in Medicaid and not be on the Medicaid or Title XX provider exclusion list.

(3) The substitute dentist's National Provider Identifier (NPI) must be entered on the dental claim form.

(4) The billing agent dentist must submit the claims on behalf of the substitute dentist and may recover no more than the actual administrative cost of submitting the claim on behalf of the substitute dentist. This cost is not reimbursable by Medicaid.

(5) The billing agent dentist may only bill for services furnished by a substitute dentist on a temporary basis, for no longer than a 14-day consecutive period. Except as provided in paragraph (6) of this subsection, the billing agent dentist may not submit a claim for services furnished by a substitute dentist to address long-term absences or vacancies in a dental practice.

(6) A billing agent dentist may submit claims for the services of a substitute dentist for longer than 14 consecutive days, if the billing agent dentist has been called or ordered to active duty as a member of a reserve component of the Armed Forces. Medicaid accepts claims from the billing agent dentist for services provided by the substitute dentist for the duration of the billing agent dentist's active duty as a member of a reserve component of the Armed Forces.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 15, 2017.

TRD-201703139

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: October 1, 2017

For further information, please call: (512) 462-6276