PART 8. TEXAS JUDICIAL COUNCIL
CHAPTER 173. INDIGENT DEFENSE GRANTS
The Texas Indigent Defense Commission (Commission) is a permanent Standing Committee of the Texas Judicial Council. The Commission adopts the repeal of §§173.101 - 173.109, 173.201 - 173.205, 173.301 - 173.311, and 173.401 - 173.402, concerning rules for grant administration as published in the September 30, 2022, issue of the Texas Register (47 TexReg 6333). The Commission adopts new §§173.101, 173.103 - 173.109, 173.201 - 173.205, 173.301 - 173.303, 173.305 - 173.307, 173.309 - 173.311, and 173.402, concerning rules for grant administration without changes to the proposed text published in the September 30, 2022, issue of the Texas Register (47 TexReg 6333) and will not be republished. The Commission adopts new §§173.102, 173.304, 173.308, and 173.401 concerning rules for grant administration with changes to the proposed text published in the September 30, 2022, issue of the Texas Register (47 TexReg 6333) and will be republished.
The rules establish the guidelines for the administration of the Commission's grant program, which is designed to promote compliance by counties with the requirements of state law relating to indigent defense. The new sections also implement Texas Government Code §79.037(a)(2)(E) to establish procedures for awarding and administering grants to nonprofit corporations to provide indigent defense services.
The commission received no comments on the proposed repeal of the rules or the proposed new rules.
SUBCHAPTER A. GENERAL FUNDING PROGRAM PROVISIONS
The repeal of the rules is adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted repeal of the rules.
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 March 3, 2023.
TRD-202300993
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The new rules are adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted new rules.
§173.102.Definitions.
The following words and terms, when used in this chapter, will have the following meanings, unless otherwise indicated:
(1) "Applicant" is a county or other eligible entity that has submitted a grant application, grant renewal documentation, or other request for funding from the Commission.
(2) "Application" is any formal request for funding submitted to the Commission.
(3) "Program income" means gross income earned by the grantee that is directly generated by a supported activity of the grant or earned as a result of the grant award during the period of performance. Program income includes, but is not limited to, fees for services performed.
(4) "Crime" means
(A) a misdemeanor punishable by confinement; or
(B) a felony.
(5) "Defendant" means a person accused of a crime or a juvenile offense.
(6) "Improvement Grant" means discretionary funding awarded on a competitive basis to implement or expand new programs or processes in Texas counties designed to improve the quality of indigent defense services, promote and assist counties' compliance with the requirements of state law relating to indigent defense, or build the knowledge base regarding indigent defense through research, program evaluation, or pilot projects.
(7) "Extraordinary Disbursement Grant" means discretionary funding to reimburse a county for actual extraordinary expenses for providing indigent defense services in a case or series of cases causing a financial hardship for the county.
(8) "Fair Defense Account" is an account in the general revenue fund that may be appropriated to the Commission for the purpose of implementing the Texas Fair Defense Act.
(9)"Fiscal Monitor" is an employee of the Commission who monitors counties' fiscal processes and records to ensure that financial data reported to the Commission is accurate and that grant funds are spent appropriately in accordance with the Texas Fair Defense Act, the Texas Grant Management Standards promulgated by the Comptroller, and other applicable rules and standards.
(10) "Formula Grant" means funding awarded to counties through a formula approved by the Commission.
(11) "Grant" is a funding award made by the Commission to a Texas county or other eligible entity.
(12) "Grantee" means a county or other eligible entity that is the recipient of a grant or other funds from the Commission.
(13) "Juvenile offense" means conduct committed by a person while younger than 17 years of age that constitutes:
(A) a misdemeanor punishable by confinement; or
(B) a felony.
(14) "Special condition" means a prerequisite placed on a grant because of a need for information, clarification, or submission of an outstanding requirement of the grant that may result in a hold being placed on the Commission-funded portion of a grant project.
(15) "Sustainability Grant" means a type of Improvement Grant that is discretionary funding awarded to assist counties in maintaining regional public defender programs.
(16) "Technical Support Grant" means a type of Improvement Grant awarded for special projects to improve the quality of indigent defense services through research, program evaluation, or pilot projects that raise the knowledge base about indigent defense, and may establish processes that can be generalized to similar situations in other counties.
(17) "Texas Indigent Defense Commission" (Commission) is the governmental entity established and governed by §79.002 of the Texas Government Code.
(18) "TxGMS" means the Texas Grant Management Standards promulgated by the Office of the Comptroller.
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 March 3, 2023.
TRD-202300994
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The repeal of the rules is adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the repeal of the rules.
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 March 3, 2023.
TRD-202300995
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The new rules are adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted new rules.
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 March 3, 2023.
TRD-202300997
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The repeal of the rules is adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the repeal of the rules.
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 March 3, 2023.
TRD-202300999
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The new rules are adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted new rules.
§173.304.Expenditure Reports.
(a) Recipients of grants must submit program expenditure reports to the Commission in addition to the annual expenditure report required for all counties under Texas Government Code §79.036(e).
(b) The Commission will provide the appropriate forms and instructions for expenditure reports and deadlines for their submission. The financial officer shall be responsible for submitting the expenditure reports.
(c) Grantees must ensure that actual expenditures are comprehensively documented. Documentation may include, but is not limited to, ledgers, purchase orders, travel records, time sheets, earnings statements, bank statements, credit card statements, other payroll documentation, invoices, receipts, contracts, mileage records or maps, and other documentation that verifies the expenditure amount, allowability, and appropriateness to the funded program. Expenditure documentation must be provided to the Commission upon request.
§173.308.Term of Grant.
(a) The term of a grant shall be specified in the Statement of Grant Award or other funding document.
(b) If a grantee wishes to terminate a grant in whole or in part before the end of the award period, the grantee must notify the Commission in writing. The Commission or its designee will arrange with the grantee an early termination of the award, which may include transfer or disposal of property and return of unused funds.
(c) The Commission may terminate any grant, in whole or in part, when:
(1) the grantee and the executive director of the Commission agree to do so;
(2) the grantee fails to comply with any term, condition, statute, rule, regulation, or guideline;
(3) indigent defense funds are no longer available;
(4) operational conditions exist that make it unlikely that grant or program objectives will be accomplished; or
(5) The grantee has acted in bad faith.
(d) A grantee may submit a written request for an extension of the funding period. The Commission must receive requests for funding extensions at least 30 days prior to the end of the funding period. The executive director of the Commission may approve extensions of the funding period for up to six months. Requests to extend the funding period beyond six months of the original term must be approved by the Commission.
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 March 3, 2023.
TRD-202301001
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The repeal of the rules is adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted repeal of the rules.
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 March 3, 2023.
TRD-202301004
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
The new rules are adopted under the Texas Government Code §79.037. The Commission is authorized to distribute funds, including grants, to counties for indigent defense services under the Texas Government Code §79.037. This section further authorizes the Commission to monitor grants and enforce compliance with grant terms and to develop policies to ensure funds are allocated and distributed to counties in a fair manner. The Commission interprets §79.037(c) to require the Commission to adopt rules governing the process for distributing grant funds. No other statutes, articles, or codes are affected by the adopted new rules.
§173.401.Fiscal Monitoring.
(a) The Commission or its designees will monitor the activities of grantees as necessary to ensure that Commission grant funds are used for authorized purposes in compliance with laws, regulations, and the provisions of grant agreements.
(b) The monitoring program may consist of formal audits, monitoring reviews, and technical assistance. The Commission or its designees may implement monitoring through on-site review at the grantee location or through a desk review based on grantee reports. In addition, the Commission or its designees may require grantees to submit relevant information to the Commission to support any monitoring review. The Commission may contract with an outside provider to conduct the monitoring.
(c) Grantees must make available to the Commission or its designees all requested records relevant to a monitoring review. The Commission or its designees may make unannounced monitoring visits at any time. Failure to provide adequate documentation upon request may result in disallowed costs or other remedies for noncompliance as detailed under §173.307 of this chapter (relating to Remedies for Noncompliance).
(d) After a monitoring review, the fiscal monitor shall issue a report to the authorized official and financial officer as soon as is practicable, but no later than 90 days following the final submission of requested county financial data, unless a documented exception is provided by the executive director. The report shall contain each finding of noncompliance.
(e) Within 60 days of the date the report is issued, the authorized official or financial officer shall respond in writing to each finding of non-compliance and shall describe the proposed corrective action to be taken by the grantee. The grantee may request the executive director to grant an extension of up to 60 days.
(f) The corrective action plan will include the:
(1) titles of the persons responsible for implementing the corrective action plan;
(2) corrective action to be taken; and
(3) anticipated completion date.
(g) If the grantee believes corrective action is not required for a noted deficiency, the response will include an explanation, specific reasons, and supporting documentation.
(h) The Commission or its designees will approve the corrective action plan and may require modifications prior to approval. The grantee's replies and the approved corrective action plan, if any, will become part of the final report.
(i) The grantee will correct deficiencies identified in the final report within the time frame specified in the corrective action plan.
(j) The fiscal monitor shall conduct an additional on-site visit or remote follow-up review when the fiscal monitor determines that the report includes significant noncompliance findings. The follow-up visit or desk review shall occur within 12 months following receipt of a county's response to the report. The fiscal monitor shall review a grantee's implementation of corrective actions and shall report to the grantee and Commission any remaining issues not corrected. Within 30 days of the date the follow-up report is issued by the fiscal monitor, the authorized director or financial officer shall respond in writing to each finding of noncompliance, and shall describe the proposed corrective action to be taken by the grantee. The grantee may request the director to grant an extension of up to 30 days.
(k) If a grantee fails to respond to a monitoring report or follow-up report within the required time, then a certified letter will be sent to the authorized official, financial officer, county judge, local administrative district court judge, local administrative statutory county court judge, and chair of the juvenile board notifying them that formula grant payments will be automatically withheld if no response to the report is received by the Commission within 10 days of receipt of the letter. The Commission may also authorize withholding of improvement grant funds. If funds are withheld under this section, then the funds will not be reinstated until the Commission or the Grants and Reporting Committee approves the release of the funds.
(l) If a grantee fails to correct any noncompliance findings, the Commission may impose a remedy under §173.307 of this title.
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 March 3, 2023.
TRD-202301005
Wesley Shackelford
Deputy Director
Texas Judicial Council
Effective date: March 23, 2023
Proposal publication date: September 30, 2022
For further information, please call: (512) 936-6994
CHAPTER 366. MEDICAID ELIGIBILITY FOR WOMEN, CHILDREN, YOUTH, AND NEEDY FAMILIES
SUBCHAPTER D. MEDICAID FOR BREAST AND CERVICAL CANCER
1 TAC §§366.403, 366.405, 366.409
The Texas Health and Human Services Commission (HHSC) adopts amendments to §366.403, concerning Definitions; §366.405, concerning Eligible Group; and §366.409, concerning Application Requirements and Processing.
The amendments to §366.403 and §366.405 are adopted without changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8079). These rules will not be republished.
The amendment §366.409 is adopted with changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8079). This rule will be republished.
BACKGROUND AND JUSTIFICATION
The amendments are necessary to update rules related to the application process for Medicaid for Breast and Cervical Cancer (MBCC) and correct outdated language. The amendments include updates to reference current statute, program titles, and clarification of the role of HHSC. The proposed amendments are also necessary to reflect the transition of authority from the Texas Department of State Health Services (DSHS) to HHSC and other non-substantive administrative updates.
COMMENTS
The 31-day comment period ended on January 9, 2023.
During this period, HHSC received comments regarding the proposed rules from the Texas Medical Association (TMA). A summary of comments relating to the rules and HHSC's response follows.
Comment: TMA expressed concerns that amendments to §366.409 could cause unintended violations of Texas laws on scope of practice, as some program providers may not be permitted to diagnose medical conditions based on their licensure. TMA suggested new language to clarify that the rules are not intended to conflict with licensure guidelines.
Response: HHSC agrees and revises the rule as suggested.
STATUTORY AUTHORITY
The amendments are adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies, and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which authorize HHSC to administer the federal medical assistance (Medicaid) program. The rules are specifically authorized by Texas Human Resources Code §32.024(y) and (y-1).
§366.409.Application Requirements and Processing.
(a) An applicant is identified through the Texas Health and Human Services Commission (HHSC) Breast and Cervical Cancer Services (BCCS) Program.
(b) A BCCS Program provider, acting only to the extent permitted by applicable scope of licensure laws under the Texas Occupations Code, screens and diagnoses qualifying medical conditions and makes a determination of presumptive eligibility.
(c) BCCS Program providers have been designated as qualified entities for presumptive eligibility determinations.
(d) A BCCS Program provider sends the applicant's application packet containing the provider's determination of presumptive eligibility and an application for assistance to HHSC within five working days after the date the presumptive eligibility determination is made. HHSC determines eligibility no later than 15 days from the application's file date.
(e) The period of presumptive Medicaid eligibility is specified in 42 U.S.C. §1396r-1b(b)(1) as beginning with the date a qualified entity determines eligibility under the State Plan, based upon preliminary information, and ends with (and includes) the earlier of:
(1) the date an eligibility determination is made by HHSC; or
(2) the last day of the month following the month presumptive eligibility was determined.
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 February 28, 2023.
TRD-202300954
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: March 20, 2023
Proposal publication date: December 9, 2022
For further information, please call: (512) 438-3098
The Texas Health and Human Services Commission (HHSC) adopts an amendment to 1 Texas Administrative Code (TAC) §393.3, concerning Informal Dispute Resolution for Texas Home Living (TxHmL) and Home and Community-Based Service (HCS) providers.
Section 393.3 is adopted without changes to the proposed text as published in the December 9, 2022, issue of the Texas Register (47 TexReg 8081). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
The amendment is necessary to ensure the Informal Dispute Resolution (IDR) rule aligns with current regulatory processes. House Bill 2590, 85th Legislature, Regular Session, 2017 required HHSC to develop and contract IDR services for HCS and TxHmL providers. Section 393.3 was originally adopted on February 15, 2021, and reflected the regulatory and IDR processes at the time of adoption. Since adoption, regulatory processes were modified for HCS and TxHmL providers and some of the changes impacted the IDR process. Amending the rule will ensure the rule aligns with current practices and terminology.
COMMENTS
The 31-day comment period ended January 9, 2023.
During this period, HHSC did not receive any comments regarding the proposed rule.
STATUTORY AUTHORITY
The amendment is authorized by Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services agencies; Texas Government Code §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program; and Texas Human Resources Code §161.0892(a), which provides that the Executive Commissioner of HHSC by rule establish an informal dispute resolution process for HCS and TxHmL waiver providers.
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 February 28, 2023.
TRD-202300953
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: March 20, 2023
Proposal publication date: December 9, 2022
For further information, please call: (512) 589-8618