HUMAN RESOURCES CODE
CHAPTER 32. MEDICAL ASSISTANCE PROGRAM
SUBCHAPTER A. GENERAL PROVISIONS
§ 32.001. PURPOSE OF CHAPTER. The purpose of this
chapter is to enable the state to provide medical assistance on
behalf of needy individuals and to enable the state to obtain all
benefits for those persons authorized under the Social Security Act
or any other federal act.
Acts 1979, 66th Leg., p. 2348, ch. 842, art. 1, § 1, eff. Sept. 1,
1979.
§ 32.002. CONSTRUCTION OF CHAPTER. (a) This chapter
shall be liberally construed and applied in relation to applicable
federal laws and regulations so that adequate and high quality
health care may be made available to all children and adults who
need the care and are not financially able to pay for it.
(b) If a provision of this chapter conflicts with a
provision of the Social Security Act or any other federal act and
renders the state program out of conformity with federal law to the
extent that federal matching money is not available to the state,
the conflicting provision of state law shall be inoperative to the
extent of the conflict but shall not affect the remainder of this
chapter.
Acts 1979, 66th Leg., p. 2348, ch. 842, art. 1, § 1, eff. Sept. 1,
1979.
§ 32.003. DEFINITIONS. In this chapter:
(1) "Board" means the Health and Human Services
Commission or the governing body of an agency operating part of the
medical assistance program, as appropriate.
(2) "Commissioner" means the Health and Human Services
Commission or the commissioner or executive director of an agency
operating part of the medical assistance program, as appropriate.
(3) "Department" means the Health and Human Services
Commission or an agency operating part of the medical assistance
program, as appropriate.
(4) "Medical assistance" includes all of the health
care and related services and benefits authorized or provided under
federal law for needy individuals of this state.
Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1995, 74th Leg., ch. 6, § 2, eff. March 23,
1995.
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
§ 32.021. ADMINISTRATION OF THE PROGRAM. (a) The
department is the state agency designated to administer the medical
assistance program provided in this chapter.
(b) The department shall enter into agreements with any
federal agency designated by federal law to administer medical
assistance when the department determines the agreements to be
compatible with the state's participation in the medical assistance
program and within the limits of appropriated funds. The
department shall cooperate with federal agencies designated by
federal law to administer medical assistance in any reasonable
manner necessary to qualify for federal funds.
(c) The department shall establish methods of
administration and adopt necessary rules for the proper and
efficient operation of the program.
(d) The department shall include in its contracts for the
delivery of medical assistance by nursing facilities provisions for
monetary penalties to be assessed for violations as required by 42
U.S.C. Section 1396r, including without limitation the Omnibus
Budget Reconciliation Act (OBRA), P. L. 100-203, Nursing Home
Reform Amendments of 1987, provided that the department shall:
(1) provide for an informal dispute resolution process
in the Health and Human Services Commission as provided by Section
531.058, Government Code; and
(2) develop rules to adjudicate claims in contested
cases, including claims unresolved by the informal dispute
resolution process of the Health and Human Services Commission.
(e) Rules governing the application of penalties shall
include the following:
(1) specific and objective criteria which describe the
scope and severity of a contract violation which results in a
recommendation for each specific penalty. Penalties must be
appropriate to the violation, and the most severe financial
penalties must be reserved for situations which create an immediate
and serious threat to the health and safety of residents;
"immediate and serious threat" means a situation in which there is a
high probability that serious harm or injury to patients could
occur at any time or already has occurred and may well occur again
if patients are not protected effectively from the harm or if the
threat is not removed;
(2) a system to ensure standard and consistent
application of penalties among surveyors and different areas of the
state;
(3) due process for nursing facilities providers,
including an appeals procedure consistent with Chapter 2001,
Government Code; and
(4) per diem and/or minimum penalties. The department
may by rule prescribe a minimum penalty period; however, once a
facility gives the department notice that deficiencies have been
corrected, if surveyors are unable to revisit the facility within
five days and the deficiencies are later shown to be corrected, the
per diem penalties cease as of the day the facility gave notice to
the department or on the last day of the minimum penalty period
established by the department, whichever is later.
(f) To encourage facilities to provide the best possible
care, the department shall develop an incentive program to
recognize facilities providing the highest quality care to Medicaid
residents.
(g) Funds collected as a result of the imposition of
penalties shall be applied to the protection of the health or
property of residents of nursing facilities, including the cost of
relocation of residents to other facilities and maintenance or
operation of a facility pending correction of deficiencies or
closure, or to incentive programs which recognize the highest
quality care to residents who are entitled to Medicaid.
(h) Medicaid nursing facilities shall also comply with
state licensure rules, which may be more stringent than the
requirements for certification. The department shall use
appropriate civil, administrative, or criminal remedies authorized
by state or federal law with respect to a facility that is in
violation of a certification or licensing requirement.
(i) Repealed by Acts 2003, 78th Leg., ch. 204, §
16.03(1).
(j) Repealed by Acts 2001, 77th Leg., ch. 1284, § 3.04,
eff. June 15, 2001.
(k) Repealed by Acts 2003, 78th Leg., ch. 204, §
16.03(1).
(l) The department may not include as a reimbursable item to
a nursing facility an administrative or civil penalty assessed
against the facility under this chapter or under Chapter 242,
Health and Safety Code.
(m) Notwithstanding any provision of law to the contrary,
the department shall terminate a nursing facility's provider
agreement if the department has imposed required Category 2 or
Category 3 remedies on the facility three times within a 24-month
period unless the department makes an affirmative finding that good
cause exists to waive this requirement to facilitate a change in
ownership to protect residents of a facility. In this subsection,
"Category 2 remedies" and "Category 3 remedies" have the meanings
assigned by 42 C.F.R. Section 488.408.
(n) An assessment of monetary penalties under this section
is subject to arbitration under Subchapter J, Chapter 242, Health
and Safety Code.
(o) In any circumstance in which a nursing facility would
otherwise be required to admit a resident transferred from another
facility, because of an emergency or otherwise, the nursing
facility may not admit a resident whose needs cannot be met through
service from the facility's staff or in cooperation with community
resources or other providers under contract. If a nursing facility
refuses to admit a resident under this subsection, the nursing
facility shall provide a written statement of the reasons for the
refusal to the department within a period specified by department
rule. A nursing facility that fails to provide the written
statement, or that includes false or misleading information in the
statement, is subject to monetary penalties assessed in accordance
with this chapter.
(p) In order to increase the personal needs allowance under
Section 32.024(v), as added by Chapter 1333, Acts of the 76th
Legislature, Regular Session, 1999, the department shall develop an
early warning system to detect fraud in the handling of the personal
needs allowance and other funds of residents of long-term care
facilities.
(q) The department shall include in its contracts for the
delivery of medical assistance by nursing facilities clearly
defined minimum standards that relate directly to the quality of
care for residents of those facilities. The department shall
consider the recommendations made by the nursing facility quality
assurance team under Section 32.060 in establishing the standards.
The department shall include in each contract:
(1) specific performance measures by which the
department may evaluate the extent to which the nursing facility is
meeting the standards; and
(2) provisions that allow the department to terminate
the contract if the nursing facility is not meeting the standards.
(r) The department may not award a contract for the delivery
of medical assistance to a nursing facility that does not meet the
minimum standards that would be included in the contract as
required by Subsection (q). The department shall terminate a
contract for the delivery of medical assistance by a nursing
facility that does not meet or maintain the minimum standards
included in the contract in a manner consistent with the terms of
the contract.
(s) Not later than November 15 of each even-numbered year,
the department shall submit a report to the legislature regarding
nursing facilities that contract with the department to provide
medical assistance under this chapter and other nursing facilities
with which the department was prohibited to contract as provided by
Subsection (r). The department may include the report required
under this section with the report made by the long-term care
legislative oversight committee as required by Section 242.654,
Health and Safety Code. The report must include:
(1) recommendations for improving the quality of
information provided to consumers about the facilities;
(2) the minimum standards and performance measures
included in the department's contracts with those facilities;
(3) the performance of the facilities with regard to
the minimum standards;
(4) the number of facilities with which the department
has terminated a contract or to which the department will not award
a contract because the facilities do not meet the minimum
standards; and
(5) the overall impact of the minimum standards on the
quality of care provided by the facilities, consumers' access to
facilities, and cost of care.
Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.22,
eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49),
eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1049, § 1, eff.
Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 2.01, eff.
Sept. 1, 1997; Acts 2001, 77th Leg., ch. 974, § 2, eff. Sept. 1,
2001; Acts 2001, 77th Leg., ch. 1284, § 3.01, 3.04, 7.04, eff.
June 15, 2001; Acts 2003, 78th Leg., ch. 198, § 2.92(a), eff.
Sept. 1, 2003; Acts 2003, 78th Leg., ch. 204, § 16.03(1), eff.
Sept. 1, 2003.
§ 32.0211. RESTRICTIONS ON MEMBERS OF THE BOARD,
COMMISSIONERS, AND THEIR PARTNERS. (a) After service in the
department ends, a former member of the board or a former
commissioner may not knowingly represent a person before an agency
or court:
(1) in a matter related to the medical assistance
program in which the department or the federal government has a
direct interest and in which the board member or commissioner
participated personally while employed with the department; or
(2) for two years after the date on which service ends
in a matter related to the medical assistance program if the
department or the federal government has a direct interest in the
matter, the matter was pending during his last year of service to
the department, and the matter was one for which the board member or
commissioner had responsibility.
(b) Subsection (a) of this section does not apply to a
former board member or commissioner who holds one of the following
positions and is acting in the scope of that position:
(1) employee or officer of federal, state, or local
government;
(2) employee of a nonprofit hospital or medical
research organization; or
(3) employee of an accredited degree-granting college
or university.
(c) A current board member or commissioner may not knowingly
participate in the course of his service in a matter related to the
medical assistance program in which the department or the federal
government has a direct interest and in which he, his spouse, minor
child, or business partner has a substantial financial interest.
(d) A business partner of a current board member or
commissioner may not knowingly represent a person before an agency
or court in a matter related to the medical assistance program:
(1) in which the board member or commissioner
participates or has participated personally and substantially; or
(2) that is under the official responsibility of the
board member or commissioner.
(e) Past or present board members or commissioners are
subject to a civil penalty of $5,000 for each violation of this
section. A partner of a current board member or commissioner is
subject to a civil penalty of $2,500 for each violation of this
section. Each appearance before an agency or court constitutes a
separate offense.
(f) If it appears that this section has been violated, the
department may request the attorney general to conduct a suit in the
name of the State of Texas to enjoin the prohibited activity and to
recover the penalty provided for in this section.
Added by Acts 1981, 67th Leg., p. 755, ch. 287, § 1, eff. Aug. 31,
1981.
§ 32.0212. DELIVERY OF MEDICAL
ASSISTANCE. Notwithstanding any other law and subject to Section
533.0025, Government Code, the department shall provide medical
assistance for acute care through the Medicaid managed care system
implemented under Chapter 533, Government Code.
Added by Acts 2003, 78th Leg., ch. 198, § 2.95, eff. Sept. 1,
2003.
§ 32.0213. NURSING FACILITY BED CERTIFICATION AND
DECERTIFICATION. (a) The department by rule shall establish
procedures for:
(1) controlling the number of Medicaid beds in nursing
facilities;
(2) decertification of unused Medicaid beds in nursing
facilities; and
(3) reallocation of nursing home beds decertified
under Subdivision (2) to other nursing facilities.
(b) The procedures established under this section must take
into account the occupancy rate of the nursing facility.
(c) The department may exempt a nursing facility from the
procedures established under this section if the facility:
(1) is affiliated with a state-supported medical
school;
(2) is located on land owned or controlled by the
state-supported medical school; and
(3) serves as a teaching facility for physicians and
related health care professionals.
Added by Acts 1997, 75th Leg., ch. 1159, § 2.02, eff. Sept. 1,
1997. Amended by Acts 1999, 76th Leg., ch. 1487, § 1, eff. June
19, 1999.
§ 32.0215. HOME OR COMMUNITY CARE PROVIDERS: CIVIL
MONETARY PENALTIES. (a) The department may include in a contract
for the delivery of medical assistance by a home or community care
provider a provision for monetary penalties to be assessed for a
contract violation or any violation of home or community care
requirements, as required by 42 U.S.C. Section 1396t(j).
(b) The department shall develop rules governing the
application of civil money penalties, including rules prescribing:
(1) criteria that describe when and how a civil money
penalty may be assessed and the amount of the penalty;
(2) a system to ensure standard and consistent
application of the penalties throughout the state; and
(3) an administrative appeals process to adjudicate
claims in contested cases in accordance with Chapter 2001,
Government Code.
(c) Rules adopted under this section must be designed to
minimize the time between the identification of a violation and the
final imposition of a penalty. Rules adopted under this section may
authorize the imposition of a penalty that assesses and collects a
monetary penalty, with interest, for a minimum penalty period and
on a subsequent per diem basis.
(d) A penalty must be appropriate to the violation. The
department may assess incrementally more severe penalties for
repeated or uncorrected violations.
(e) The department shall review a penalized provider within
10 working days after the provider notifies the department that the
deficiency that caused the imposition of the penalty has been
corrected. If the department is unable to review the provider
within that 10-working-day period, the penalty ceases on the
earlier of the last day of the minimum penalty period or the date
the provider gives notice to the department.
(f) Money collected as a result of the imposition of
penalties may be used for the protection of the health or property
of an individual whose personal property was lost due to a failure
of a home or community care provider to meet the requirements for
participation as a provider of home or community care.
Added by Acts 1993, 73rd Leg., ch. 132, § 1, eff. Sept. 1, 1993.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995.
§ 32.022. MEDICAL AND HOSPITAL CARE ADVISORY
COMMITTEES. (a) The board, on the recommendation of the
commissioner, shall appoint a medical care advisory committee to
advise the board and the department in developing and maintaining
the medical assistance program and in making immediate and
long-range plans for reaching the program's goal of providing
access to high quality, comprehensive medical and health care
services to medically indigent persons in the state. To ensure that
qualified applicants receive services, the committee shall
consider changes in the process the department uses to determine
eligibility.
(b) The board shall appoint the committee in compliance with
the requirements of the federal agency administering medical
assistance. The appointments shall provide for a balanced
representation of the general public, providers, consumers, and
other persons, state agencies, or groups with knowledge of and
interest in the committee's field of work.
(c) The department shall adopt rules for membership on the
committee to provide for efficiency of operation, rotation,
stability, and continuity.
(d) The board, on the recommendation of the commissioner,
may appoint regional and local medical care advisory committees and
other advisory committees as considered necessary.
(e) The board, on the recommendation of the commissioner,
shall appoint a hospital payment advisory committee. The committee
shall advise the board and the department on necessary changes in
hospital payment methodologies for inpatient hospital prospective
payments and on adjustments for disproportionate share hospitals
that will ensure reasonable, adequate, and equitable payments to
hospital providers and that will address the essential role of
rural hospitals. The board shall appoint to the committee persons
with knowledge of and an interest in hospital payment issues.
Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 2.01, eff.
Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1027, § 10, eff. Sept.
1, 1989.
§ 32.023. COOPERATION WITH OTHER STATE
AGENCIES. (a) The department's plan for administering medical
assistance must include procedures for using health services
administered by other state agencies pursuant to cooperative
arrangements.
(b) The department may enter into agreements with
appropriate state agencies that will enable the department to
implement Title XIX of the federal Social Security Act to provide
medical assistance for individuals in institutions or in alternate
care arrangements. The agreements must comply with federal law and
rules. The department may make medical assistance payments in
accordance with the agreements. The agreements are not subject to
the Interagency Cooperation Act (Article 4413(32), Vernon's Texas
Civil Statutes).
(c) State agencies responsible for the administration or
supervision of facilities to which medical assistance payments may
be made under federal law shall enter into the agreements with the
department and maintain compliance with the agreements so that the
department may receive federal matching funds to support the
medical assistance program.
(d) The department may pay medical assistance to other
facilities as required under federal law and rules.
Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1,
1979.
§ 32.0231. ANNOUNCEMENT OF FUNDING OR PROGRAM
CHANGE. (a) The department shall publish notice in the Texas
Register of:
(1) any attempt to obtain a waiver of federal
regulations in the medical assistance program;
(2) any attempt to obtain or the receipt of funding
under Title XIX of the federal Social Security Act (42 U.S.C.
Section 301 et seq.) for a pilot program; and
(3) any amendment to the state medical assistance
plan.
(b) The notice must include the name and telephone number of
a department employee who can provide information relating to the
matter for which notice was published under this section.
(c) The department shall provide to any requestor
information relating to a matter for which notice was published,
including the effect and cost of the change, any possible cost
savings, the criteria for receiving services, and the number of
people to be served.
Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989.
§ 32.024. AUTHORITY AND SCOPE OF PROGRAM;
ELIGIBILITY. (a) The department shall provide medical assistance
to all persons who receive financial assistance from the state
under Chapter 31 of this code and to other related groups of persons
if the provision of medical assistance to those persons is required
by federal law and rules as a condition for obtaining federal
matching funds for the support of the medical assistance program.
(b) The department may provide medical assistance to other
persons who are financially unable to meet the cost of medical
services if federal matching funds are available for that purpose.
The department shall adopt rules governing the eligibility of those
persons for the services.
(c) The department shall establish standards governing the
amount, duration, and scope of services provided under the medical
assistance program. The standards may not be lower than the minimum
standards required by federal law and rule as a condition for
obtaining federal matching funds for support of the program, and
may not be lower than the standards in effect on August 27, 1967.
Standards or payments for the vendor drug program may not be lower
than those in effect on January 1, 1973.
(d) The department may establish standards that increase
the amount, duration, and scope of the services provided only if
federal matching funds are available for the optional services and
payments and if the department determines that the increase is
feasible and within the limits of appropriated funds. The
department may establish and maintain priorities for the provision
of the optional medical services.
(e) The department may not authorize the provision of any
service to any person under the program unless federal matching
funds are available to pay the cost of the service.
(f) The department shall set the income eligibility cap for
persons qualifying for nursing home care at an amount that is not
less than $1,104 and that does not exceed the highest income for
which federal matching funds are payable. The department shall set
the cap at a higher amount than the minimum provided by this
subsection if appropriations made by the legislature for a fiscal
year will finance benefits at the higher cap for at least the same
number of recipients of the benefits during that year as were served
during the preceding fiscal year, as estimated by the department.
In setting an income eligibility cap under this subsection, the
department shall consider the cost of the adjustment required by
Subsection (g) of this section.
(g) During a fiscal year for which the cap described by
Subsection (f) of this section has been set, the department shall
adjust the cap in accordance with any percentage change in the
amount of benefits being paid to social security recipients during
the year.
(h) Subject to the amount of the cap set as provided by
Subsections (f) and (g) of this section, and to the extent permitted
by federal law, the income eligibility cap for community care for
aged and disabled persons shall be the same as the income
eligibility cap for nursing home care. The department shall ensure
that the eligibility requirements for persons receiving other
services under the medical assistance program are not affected.
Text of subsec. (i) as amended by Acts 2003, 78th Leg., ch. 198,
§ 2.96
(i) The department in its adoption of rules may establish a
medically needy program that serves pregnant women, children, and
caretakers who have high medical expenses, subject to availability
of appropriated funds.
Text of subsec. (i) as amended by Acts 2003, 78th Leg., ch. 1251,
§ 6
(i) Subject to appropriated state funds, the department in
its adoption of rules shall establish a medically needy program
that serves pregnant women, children, and caretakers who have high
medical expenses.
(j) The department in its adoption of rules shall in fiscal
year 1990 restore three percent of the 10 percent reduction in
provider reimbursement.
(k) The department in its adoption of rules shall in fiscal
year 1991 restore 4.5 percent of the 10 percent reduction in
provider reimbursement.
(l) The department shall set the income eligibility cap for
medical assistance for pregnant women and infants up to age one at
not less than 130 percent of the federal poverty guidelines.
(m) The department shall set the income eligibility cap for
medical assistance for children up to age four at not less than 100
percent of the federal poverty guidelines for state fiscal year
1990 and for children up to age six for state fiscal year 1991.
(n) The department in its adoption of rules and standards
governing the scope of hospital and long-term services shall
authorize the providing of respite care by hospitals.
(o) The department, in its rules and standards governing the
scope of hospital and long-term services, shall establish a swing
bed program in accordance with federal regulations to provide
reimbursement for skilled nursing patients who are served in
hospital settings provided that the length of stay is limited to 30
days per year and the hospital is located in a county with a
population of 100,000 or less. If the swing beds are used for more
than one 30-day length of stay per year, per patient, the hospital
must comply with the Minimum Licensing Standards as mandated by
Chapter 242, Health and Safety Code, and the Medicaid standards for
nursing home certification, as promulgated by the department.
(p) The department shall provide home respiratory therapy
services for ventilator-dependent persons to the extent permitted
by federal law.
(q) The department shall provide physical therapy services.
(r) The department, from funds otherwise appropriated to
the department for the early and periodic screening, diagnosis, and
treatment program, shall provide to a child who is 14 years of age
or younger, permanent molar sealants as dental service under that
program as follows:
(1) sealant shall be applied only to the occlusal
buccal and lingual pits and fissures of a permanent molar within
four years of its eruption;
(2) teeth to be sealed must be free of proximal caries
and free of previous restorations on the surface to be sealed;
(3) if a second molar is the prime tooth to be sealed,
a non-restored first molar may be sealed at the same sitting, if the
fee for the first molar sealing is no more than half the usual
sealant fee;
(4) the sealing of premolars and primary molars will
not be reimbursed; and
(5) replacement sealants will not be reimbursed.
(s) The department, in its rules governing the early and
periodic screening, diagnosis, and treatment program, shall:
(1) revise the periodicity schedule to allow for
periodic visits at least as often as the frequency recommended by
the American Academy of Pediatrics and allow for interperiodic
screens without prior approval when there are indications that it
is medically necessary; and
(2) require, as a condition for eligibility for
reimbursement under the program for the cost of services provided
at a visit or screening, that a child younger than 15 years of age be
accompanied at the visit or screening by:
(A) the child's parent or guardian; or
(B) another adult, including an adult related to
the child, authorized by the child's parent or guardian to
accompany the child.
(s-1) Subsection (s)(2) does not apply to services provided
by a school health clinic, Head Start program, or child-care
facility, as defined by Section 42.002, if the clinic, program, or
facility:
(1) obtains written consent to the services from the
child's parent or guardian within the one-year period preceding the
date on which the services are provided, and that consent has not
been revoked; and
(2) encourages parental involvement in and management
of the health care of children receiving services from the clinic,
program, or facility.
(t) The department by rule shall require a physician,
nursing facility, health care provider, or other responsible party
to obtain authorization from the department or a person authorized
to act on behalf of the department before an ambulance is used to
transport a recipient of medical assistance under this chapter in
circumstances not involving an emergency. The rules must provide
that:
(1) except as provided by Subdivision (3), a request
for authorization must be evaluated based on the recipient's
medical needs and may be granted for a length of time appropriate to
the recipient's medical condition;
(2) except as provided by Subdivision (3), a response
to a request for authorization must be made not later than 48 hours
after receipt of the request;
(3) a request for authorization must be immediately
granted and must be effective for a period of 180 days from the date
of issuance if the request includes a written statement from a
physician that:
(A) states that alternative means of
transporting the recipient are contraindicated; and
(B) is dated not earlier than the 60th day before
the date on which the request for authorization is made;
(4) a person denied payment for ambulance services
rendered is entitled to payment from the nursing facility, health
care provider, or other responsible party that requested the
services if:
(A) payment under the medical assistance program
is denied because of lack of prior authorization; and
(B) the person provides the nursing facility,
health care provider, or other responsible party with a copy of the
bill for which payment was denied; and
(5) a person denied payment for services rendered
because of failure to obtain prior authorization or because a
request for prior authorization was denied is entitled to appeal
the denial of payment to the department.
(t-1) The department, in its rules governing the medical
transportation program, may not prohibit a recipient of medical
assistance from receiving transportation services through the
program to obtain renal dialysis treatment on the basis that the
recipient resides in a nursing facility.
(u) The department by rule shall require a health care
provider who arranges for durable medical equipment for a child who
receives medical assistance under this chapter to:
(1) ensure that the child receives the equipment
prescribed, the equipment fits properly, if applicable, and the
child or the child's parent or guardian, as appropriate considering
the age of the child, receives instruction regarding the
equipment's use; and
(2) maintain a record of compliance with the
requirements of Subdivision (1) in an appropriate location.
(v) The department by rule shall provide a screening test
for hearing loss in accordance with Chapter 47, Health and Safety
Code, and any necessary diagnostic follow-up care related to the
screening test to a child younger than 30 days old who receives
medical assistance.
(w) The department shall set a personal needs allowance of
not less than $45 a month for a resident of a convalescent or
nursing home or related institution licensed under Chapter 242,
Health and Safety Code, personal care facility, ICF-MR facility, or
other similar long-term care facility who receives medical
assistance. The department may send the personal needs allowance
directly to a resident who receives Supplemental Security Income
(SSI) (42 U.S.C. Section 1381 et seq.). This subsection does not
apply to a resident who is participating in a medical assistance
waiver program administered by the department.
(x) The department shall provide dental services annually
to a resident of a nursing facility who is a recipient of medical
assistance under this chapter. The dental services must include:
(1) a dental examination by a licensed dentist;
(2) a prophylaxis by a licensed dentist or licensed
dental hygienist, if practical considering the health of the
resident; and
(3) diagnostic dental x-rays, if possible.
(y) The department shall provide medical assistance to a
person in need of treatment for breast or cervical cancer who is
eligible for that assistance under the Breast and Cervical Cancer
Prevention and Treatment Act of 2000 (Pub. L. No. 106-354) for a
continuous period during which the person requires that treatment.
The department shall simplify the provider enrollment process for a
provider of that medical assistance and shall adopt rules to
provide for certification of presumptive eligibility of a person
for that assistance. In determining a person's eligibility for
medical assistance under this subsection, the department, to the
extent allowed by federal law, may not require a personal
interview.
Text of subsec. (z) as added by Acts 2003, 78th Leg., ch. 198, §
2.97(a)
(z) In its rules and standards governing the vendor drug
program, the department, to the extent allowed by federal law and if
the department determines the policy to be cost-effective, may
ensure that a recipient of prescription drug benefits under the
medical assistance program does not, unless authorized by the
department in consultation with the recipient's attending
physician or advanced practice nurse, receive under the medical
assistance program:
(1) more than four different outpatient brand-name
prescription drugs during a month; or
(2) more than a 34-day supply of a brand-name
prescription drug at any one time.
Text of subsec. (z) as added by Acts 2003, 78th Leg., ch. 215, § 1
(z) The department shall incorporate physician-oriented
instruction on the appropriate procedures for authorizing
ambulance service into current medical education courses.
(z-1) Subsection (z) does not affect any other limit on
prescription medications otherwise prescribed by department rule.
Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1027, § 11, eff.
Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1085, § 3, eff. Sept. 1,
1989; Acts 1989, 71st Leg., ch. 1107, § 1, eff. Sept. 1, 1989;
Acts 1989, 71st Leg., ch. 1219, § 1, eff. Sept. 1, 1989; Acts
1990, 71st Leg., 6th C.S., ch. 12, § 2(11) to (13), eff. Sept. 6,
1990; Acts 1991, 72nd Leg., ch. 690, § 1, eff. Aug. 26, 1991;
Acts 1995, 74th Leg., ch. 6, § 3, eff. March 23, 1995; Acts 1997,
75th Leg., ch. 1153, § 2.01(a), 2.02(a), eff. June 20, 1997;
Acts 1999, 76th Leg., ch. 766, § 1, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1333, § 1, eff. Sept. 1, 1999; Acts 1999,
76th Leg., ch. 1347, § 3, eff. Sept. 1, 1999; Acts 1999, 76th
Leg., ch. 1505, § 1.06, eff. Sept. 1, 1999; Acts 2001, 77th
Leg., ch. 220, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch.
348, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 974, §
1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, §
21.001(81), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, §
2.96, 2.97(a), 2.207(a), eff. Sept. 1, 2003; Acts 2003, 78th Leg.,
ch. 215, § 1, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1251,
§ 6, eff. June 20, 2003; Acts 2003, 78th Leg., ch. 1275, §
2(97), eff. Sept. 1, 2003.
§ 32.0241. REVIEW OF WAIVER REQUEST. The department
shall, at least biennially, review the feasibility of requesting a
waiver for the elderly under Section 1915(c), federal Social
Security Act (42 U.S.C. Section 1396n), if the reimbursement rates
for nursing homes under the medical assistance program have
increased since the preceding review.
Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989.
§ 32.0242. VERIFICATION OF CERTAIN INFORMATION. To the
extent possible, the department shall verify an applicant's
residential address at the time the application for medical
assistance is filed.
Added by Acts 1999, 76th Leg., ch. 1289, § 1, eff. Sept. 1, 1999.
§ 32.0243. PERIODIC REVIEW OF ELIGIBILITY FOR CERTAIN
RECIPIENTS. (a) The department, in cooperation with the United
States Social Security Administration, shall periodically review
the eligibility of a recipient of medical assistance who is
eligible on the basis of the recipient's eligibility for
Supplemental Security Income (SSI) benefits under 42 U.S.C. Section
1381 et seq., as amended.
(b) In reviewing the eligibility of a recipient as required
by Subsection (a), the department shall ensure that only recipients
who reside in this state and who continue to be eligible for
Supplemental Security Income (SSI) benefits under 42 U.S.C. Section
1381 et seq., as amended, remain eligible for medical assistance.
Added by Acts 1999, 76th Leg., ch. 1289, § 1, eff. Sept. 1, 1999.
§ 32.0244. NURSING HOME BEDS IN CERTAIN
COUNTIES. (a) At the request of the commissioners court of a
county in which not more than two nursing facilities are certified
to participate in the state Medicaid program, and subject to
Subsection (d), the department may contract for additional nursing
home beds under the state Medicaid program in the county without
regard to the occupancy rate of available Medicaid beds.
(b) A commissioners court that intends to make a request
under Subsection (a) shall publish notice of its intent in the Texas
Register and in a newspaper of general circulation in the county.
The notice must request:
(1) comments on whether the request should be made;
and
(2) proposals from persons interested in providing
additional Medicaid beds in the county, including persons providing
Medicaid beds in a nursing facility with a high occupancy rate.
(c) A commissioners court shall determine whether to
proceed with a request after considering all comments and proposals
received in response to the notices provided under Subsection (b).
If the commissioners court proceeds with the request, the court may
recommend that the department contract with a specific nursing
facility that submitted a proposal. In determining whether to
proceed with the request and whether to recommend a specific
nursing facility, the commissioners court shall consider:
(1) the demographic and economic needs of the county;
(2) the quality of existing nursing facility services
under the state Medicaid program in the county;
(3) the quality of the proposals submitted; and
(4) the degree of community support for additional
nursing facility services.
(d) The department may not contract under this section for
more than 120 additional nursing home beds per county per year and
may not exceed 500 additional nursing home beds statewide in a
calendar year.
Added by Acts 1997, 75th Leg., ch. 555, § 1, eff. Sept. 1, 1997.
Renumbered from § 32.0246 by Acts 1999, 76th Leg., ch. 62, §
19.01(73), eff. Sept. 1, 1999.
§ 32.0245. NURSING HOME BEDS FOR CERTAIN FACILITIES
TREATING ALZHEIMER'S DISEASE. The department shall waive for a
nursing facility a restriction imposed by state law on the
authority to contract under the state Medicaid program for nursing
home beds based on the percentage of beds that are occupied in a
geographical area if the facility:
(1) is affiliated with a medical school operated by
the state;
(2) is participating in a research program for the
care and treatment of persons with Alzheimer's disease; and
(3) is designed to separate and treat Alzheimer's
disease by stage or functional level.
Added by Acts 1995, 74th Leg., ch. 841, § 1, eff. Aug. 28, 1995.
§ 32.0246. PILOT PROGRAM FOR TREATMENT OF ALZHEIMER'S
PATIENTS. (a) The Texas Department of Human Services, in
cooperation with all appropriate state and federal agencies and
with the advisory committee established in Subsection (b), shall
develop and implement a pilot program for the treatment of
individuals diagnosed with Alzheimer's disease. The pilot program
shall:
(1) be operated in one rural county and one urban
county contiguous to the rural county;
(2) provide a continuum of care and comprehensive case
management, address gaps in services, and address the special needs
of Alzheimer's patients; and
(3) develop and implement counseling, education, and
support services for the caregivers and family members of
Alzheimer's patients.
(b) The Texas Department of Human Services shall appoint an
advisory committee to assist the department in developing and
implementing the pilot program. The advisory committee shall be
composed of:
(1) four representatives from groups that advocate for
Alzheimer's patients;
(2) one representative from an institution of higher
education;
(3) one clinician;
(4) one representative from the Texas Department on
Aging;
(5) one representative from the Texas Department of
Human Services; and
(6) one representative from the Texas Department of
Mental Health and Mental Retardation.
(c) The pilot program may not make eligible for medical
assistance any individual not otherwise eligible for medical
assistance.
(d) The Texas Department of Human Services may seek and
accept a gift, grant, or donation from any person for purposes of
developing and implementing the pilot program provided that the
person does not have a contested case pending before any agency
participating in the pilot program.
(e) Not later than January 15, 1999, the Texas Department of
Human Services shall submit to the legislature a report concerning
the effectiveness of the pilot program.
Added by Acts 1997, 75th Leg., ch. 415, § 1, eff. Sept. 1, 1997.
§ 32.0247. MEDICAL ASSISTANCE FOR CERTAIN PERSONS MAKING
TRANSITION FROM FOSTER CARE TO INDEPENDENT LIVING. (a) In this
section, "independent foster care adolescent" has the meaning
assigned by 42 U.S.C. Section 1396d(w)(1), as amended.
(b) The department shall provide medical assistance, in
accordance with department rules, to an independent foster care
adolescent who:
(1) is not otherwise eligible for medical assistance;
and
(2) is not covered by a health benefits plan offering
adequate benefits, as determined by the Health and Human Services
Commission.
(c) The department shall by rule establish a specific set of
income, assets, or resources allowable for recipients under this
section. The income level shall not be less than 200 percent or
more than 400 percent of the federal poverty level. Allowable asset
or resource levels shall not be less than:
(1) the levels allowed for individuals who are in
foster care; and
(2) the levels allowed for a person under 19 years of
age who is eligible for the medical assistance program.
(d) In setting allowable income, asset, or resource levels,
the department shall exclude:
(1) any financial benefit used for the purpose of
educational or vocational training, such as scholarships, student
loans, or grants;
(2) any financial benefit used for the purpose of
housing; and
(3) any grants or subsidies obtained as a result of the
Foster Care Independence Act of 1999 (Pub. L. No. 106-169).
(e) The Department of Protective and Regulatory Services
shall certify the income, assets, or resources of each individual
on the date the individual exits substitute care. An individual
qualifying for medical assistance as established by this section
shall remain eligible for 12 calendar months after certification
and after each recertification.
(f) The recertification process for individuals who are
eligible for medical assistance under this section shall include
the option of recertifying by mail or phone.
Added by Acts 2001, 77th Leg., ch. 1218, § 1, eff. Sept. 1, 2001.
§ 32.025. APPLICATION FOR MEDICAL ASSISTANCE. (a) A
recipient of benefits under Chapter 31 of this code or supplemental
security income from the federal government is automatically
eligible for medical assistance, and an application for benefits
under these programs constitutes an application for medical
assistance.
(b) The department shall prescribe application forms for
persons who are not recipients of benefits under Chapter 31 of this
code or supplemental security income from the federal government
and shall adopt rules for processing the applications.
(c) The department shall inform applicants for nursing home
care of any community services which might be available under the
community care for the aged and disabled program.
(d) The department shall adopt an application form and
procedures for a request for medical assistance provided to a child
under 19 years of age. To the extent allowed by federal law and
except as otherwise provided by this section, the application form
and procedures must be the same as the form and procedures adopted
under Section 62.103, Health and Safety Code. The department shall
coordinate the form and procedures adopted under this subsection
with the form and procedures adopted under Section 62.103, Health
and Safety Code, to ensure that there is a single consolidated
application for a child under 19 years of age to seek medical
assistance or to request coverage under the state child health plan
under Chapter 62, Health and Safety Code.
(e) The department shall permit an application requesting
medical assistance for a child under 19 years of age to be conducted
by mail instead of through a personal appearance at a department
office, unless the department determines that the information
needed to verify eligibility cannot be obtained in that manner. The
department by rule may develop procedures requiring an application
for a child described by this subsection to be conducted through a
personal interview with a department representative only if the
department determines that information needed to verify
eligibility cannot be obtained in any other manner.
(f) The commissioner by rule may develop procedures by
which:
(1) any office of a health and human services agency
may accept an application requesting medical assistance for a child
under 19 years of age; and
(2) the department may contract with hospital
districts, hospitals, including state-owned teaching hospitals,
federally qualified health centers, and county health departments
to accept applications requesting medical assistance for a child
under 19 years of age.
Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1085, § 5, eff. Sept.
1, 1989; Acts 2001, 77th Leg., ch. 584, § 2; Acts 2003, 78th
Leg., ch. 376, § 2, eff. June 18, 2003; Acts 2003, 78th Leg., ch.
1251, § 7, eff. June 20, 2003.
§ 32.0251. ELIGIBILITY NOTIFICATION AND REVIEW FOR
CERTAIN CHILDREN. (a) The department shall establish and
implement procedures under which the department automatically
reviews a child's eligibility for medical assistance if:
(1) the child originally establishes eligibility for
medical assistance on the basis of receipt of financial assistance
under Chapter 31, as provided by Section 32.025(a); and
(2) that receipt of financial assistance under Chapter
31 ceases.
(b) If the review required by this section indicates that
the child may be eligible for medical assistance on a basis other
than receipt of financial assistance under Chapter 31, the
department may provide for provisional eligibility for medical
assistance for the child pending a recertification review. The
provisional eligibility period authorized by this subsection may
not exceed one month.
(c) In addition to the review required by this section, the
department shall also promote continued medical assistance for a
child described by Subsection (a) through:
(1) revising client education and notification
policies relating to a child's eligibility for medical assistance;
and
(2) providing specific notification of a child's
potential eligibility for medical assistance to the child's parent
or other caretaker at the time the parent or caretaker is notified
of:
(A) a scheduled eligibility recertification
review; or
(B) the termination of financial assistance.
Added by Acts 1999, 76th Leg., ch. 704, § 1, eff. June 18, 1999.
§ 32.0255. TRANSITIONAL MEDICAL ASSISTANCE. (a) The
state shall provide transitional medical assistance, in accordance
with state rules and federal law, to a person who was receiving
financial assistance under Chapter 31 but is no longer eligible to
receive the assistance because:
(1) the person's household income has increased; or
(2) the person has exhausted the person's benefits
under Section 31.0065.
(b) Except as provided by Section 31.012(c), the state may
provide the medical assistance only until the earlier of:
(1) the end of the applicable period prescribed by
Section 31.0065 for the provision of transitional benefits; or
(2) the first anniversary of the date on which the
person becomes ineligible for financial assistance because of
increased household income.
Added by Acts 1995, 74th Leg., ch. 655, § 3.03, eff. Sept. 1,
1995.
§ 32.026. CERTIFICATION OF ELIGIBILITY AND NEED FOR
MEDICAL ASSISTANCE. (a) The department shall promulgate rules
for determining and certifying a person's eligibility and need for
medical assistance.
(b) The department shall promulgate rules to provide for
determination and certification of presumptive eligibility for any
pregnant woman who applies for Medicaid and who meets the basic
eligibility requirements under Title XIX of the federal Social
Security Act.
(c) Medical assistance payments may not be made on a
person's behalf until the person's eligibility and need for medical
assistance have been certified in accordance with the department's
rules.
(d) In adopting rules under this section, the department
shall ensure, to the extent allowed by federal law, that
documentation and verification procedures used in determining and
certifying the eligibility and need for medical assistance of a
child under 19 years of age, including the documentation and
verification procedures used to evaluate the assets and resources
of the child, the child's parents, or the child's other caretaker
for that purpose, are the same as the documentation and
verification procedures used to determine and certify a child's
eligibility for coverage under Chapter 62, Health and Safety Code,
except that the documentation and verification procedures adopted
in accordance with this subsection may not be more stringent than
the documentation and verification procedures existing on January
1, 2001, for determination and certification of a child's
eligibility for coverage under Chapter 62, Health and Safety Code.
(e) The department shall permit a recertification review of
the eligibility and need for medical assistance of a child under 19
years of age to be conducted by telephone or mail instead of through
a personal appearance at a department office, unless the department
determines that the information needed to verify eligibility cannot
be obtained in that manner. The department by rule may develop
procedures to determine whether there is a need for a
recertification review of a child described by this subsection to
be conducted through a personal interview with a department
representative. Procedures developed under this subsection shall
be based on objective, risk-based factors and conditions and shall
focus on a targeted group of recertification reviews for which
there is a high probability that eligibility will not be
recertified.
(f) In adopting rules under this section, the department
shall ensure, to the extent allowed by federal law, that forms and
procedures used in conducting a recertification review of the
eligibility and need for medical assistance of a child under 19
years of age, including documentation and verification procedures,
are the same as the forms and procedures used to determine and
certify a child's renewal of coverage under Chapter 62, Health and
Safety Code.
(g) Notwithstanding any other provision of this code, the
department may use information obtained from a third party to
verify the assets and resources of a person for purposes of
determining the person's eligibility and need for medical
assistance. Third-party information includes information obtained
from:
(1) a consumer reporting agency, as defined by Section
20.01, Business & Commerce Code;
(2) an appraisal district; or
(3) the Texas Department of Transportation's vehicle
registration record database.
Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1215, § 1, eff. Sept.
1, 1989; Acts 2001, 77th Leg., ch. 584, § 3; Acts 2003, 78th
Leg., ch. 198, § 2.99(a), eff. Sept. 1, 2003; Acts 2003, 78th
Leg., ch. 376, § 3, eff. June 18, 2003; Acts 2003, 78th Leg., ch.
1251, § 8, eff. June 20, 2003.
§ 32.0261. CONTINUOUS ELIGIBILITY. The department
shall adopt rules in accordance with 42 U.S.C. Section
1396a(e)(12), as amended, to provide for a period of continuous
eligibility for a child under 19 years of age who is determined to
be eligible for medical assistance under this chapter. The rules
shall provide that the child remains eligible for medical
assistance, without additional review by the department and
regardless of changes in the child's resources or income, until the
earlier of:
(1) the first anniversary of the date on which the
child's eligibility was determined; or
(2) the child's 19th birthday.
Added by Acts 2001, 77th Leg., ch. 584, § 4.
§ 32.0262. ELIGIBILITY TRANSITION. (a) The department
shall develop procedures to ensure that all necessary information
regarding a child who will be denied continued medical assistance
under this chapter because of an increase in income, assets, or
resources but who is eligible for enrollment in the child health
plan under Chapter 62, Health and Safety Code, is promptly
transmitted to the child health plan in accordance with the
standards established under Section 62.104(d), Health and Safety
Code.
(b) The department shall develop procedures to ensure that
the parent or caretaker of a child who will be denied continued
medical assistance under this chapter because of a failure to keep
an appointment, including an appointment for recertification of
eligibility, a failure to provide information, or for another
procedural reason, is promptly contacted and informed of:
(1) the need to recertify eligibility for continued
medical assistance under this chapter; and
(2) the availability of medical coverage under the
child health plan under Chapter 62, Health and Safety Code.
(c) The department shall develop materials under this
section in consultation with the Health and Human Services
Commission and the appropriate agencies administering all or part
of the child health plan under Chapter 62, Health and Safety Code.
(d) The department by rule shall adopt procedures to assist
a family whose child loses eligibility for medical assistance under
this chapter in making a transition to the child health plan under
Chapter 62, Health and Safety Code, with no interruption in
coverage.
Added by Acts 2001, 77th Leg., ch. 584, § 4.
§ 32.0263. HEALTH CARE ORIENTATION. (a) The
department shall require that the parent or guardian of a child
under 19 years of age who originally establishes eligibility for
medical assistance must:
(1) attend an in-person counseling session with a
department representative not later than the 31st day after the
date the child originally establishes eligibility; or
(2) accompany the child to an appointment with a
health care provider for a comprehensive health care orientation
not later than the 61st day after the date the child originally
establishes eligibility.
(b) The commissioner by rule shall develop procedures to
verify that:
(1) the parent or guardian of the child who originally
establishes eligibility complies with the requirement of
Subsection (a)(2), if applicable; and
(2) the child is provided a comprehensive health care
orientation at the appointment with the health care provider.
Added by Acts 2001, 77th Leg., ch. 584, § 4.
§ 32.027. SELECTION OF PROVIDER OF MEDICAL
ASSISTANCE. (a) Except as provided by Subsections (f), (g), and
(h), a recipient of medical assistance authorized in this chapter
may select any provider authorized by the department to provide
medical assistance.
Text of subsec. (b) was repealed by Acts 2003, 78th Leg., ch. 198,
§ 2.156(a)(2)
(b) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.156(a)(2).
Text of subsec. (b) as amended by Acts 2003, 78th Leg., ch. 1251,
§ 9
(b) Subject to appropriated state funds, the department
shall assure that a recipient of medical assistance under this
chapter may select a licensed podiatrist to perform any foot health
care service or procedure covered under the medical assistance
program if the podiatrist is authorized by law to perform the
service or procedure. This subsection shall be liberally
construed.
(c) Repealed by Acts 2003, 78th Leg., ch. 1167, § 4.
(d) The department shall permit a recipient of medical
assistance under this chapter to receive services relating to
physical therapy from any person authorized to practice physical
therapy under Chapter 453, Occupations Code.
Text of subsec. (e) was repealed by Acts 2003, 78th Leg., ch. 198,
§ 2.156(a)(2)
(e) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.156(a)(2).
Text of subsec. (e) as amended by Acts 2003, 78th Leg., ch. 1251,
§ 9
(e) Subject to appropriated state funds, the department
shall assure that a recipient of medical assistance under this
chapter may select a licensed psychologist or a licensed marriage
and family therapist, as defined by Section 502.002, Occupations
Code, to perform any health care service or procedure covered under
the medical assistance program if the selected psychologist or
marriage and family therapist is authorized by law to perform the
service or procedure. This subsection shall be liberally
construed.
(f) The department by rule shall develop a system of
selective contracting with health care providers for the provision
of nonemergency inpatient hospital services to a recipient of
medical assistance under this chapter. In implementing this
subsection, the department shall:
(1) seek input from consumer representatives and from
representatives of hospitals licensed under Chapter 241, Health and
Safety Code, and from organizations representing those hospitals;
and
(2) ensure that providers selected under the system
meet the needs of a recipient of medical assistance under this
chapter.
(g) The process to select a hospital must afford each
disproportionate share hospital an opportunity to negotiate for a
contract. The process will take into account the special
circumstances of disproportionate share hospitals when evaluating
proposals.
(h) A proposal or bid submitted by a hospital and any work
papers, cost reports, or other financial data used to prepare the
proposal or bid shall be confidential and not subject to required
disclosure by the department or the hospital under any other
statute until the executed contracts have been awarded.
(i) In its establishment of provider criteria for
hospitals, home health providers, or hospice providers, the
department shall accept licensure by the Texas Department of Health
or certification by the Medicare program, Title XVIII of the Social
Security Act (42 U.S.C. Section 1395 et seq.).
Text of subsection (j) as added by Acts 2001, 77th Leg., ch. 812,
§ 4
(j) The department shall assure that a recipient of medical
assistance under this chapter may select a nurse first assistant,
as defined by Section 301.1525, Occupations Code, to perform any
health care service or procedure covered under the medical
assistance program if:
(1) the selected nurse first assistant is authorized
by law to perform the service or procedure; and
(2) the physician requests that the service or
procedure be performed by the nurse first assistant.
Text of subsection (j) as added by Acts 2001, 77th Leg., ch. 1014,
§ 6
(j) The department shall assure that a recipient of medical
assistance under this chapter may select a surgical assistant
licensed under Chapter 206, Occupations Code, to perform any health
care service or procedure covered under the medical assistance
program if:
(1) the selected surgical assistant is authorized by
law to perform the service or procedure; and
(2) the physician requests that the service or
procedure be performed by the surgical assistant.
Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1085, § 4, eff. Sept.
1, 1989; Acts 1989, 71st Leg., ch. 1173, § 1, eff. Aug. 28, 1989;
Acts 1990, 71st Leg., 6th C.S., ch. 12, § 2(14), eff. Sept. 6,
1990; Acts 1993, 73rd Leg., ch. 390, § 1, 2, eff. Sept. 1, 1993;
Acts 1995, 74th Leg., ch. 965, § 57, eff. June 16, 1995; Acts
1999, 76th Leg., ch. 930, § 1, eff. Jan. 1, 2000; Acts 2001, 77th
Leg., ch. 812, § 4, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch.
1014, § 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420,
§ 14.813, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198,
§ 2.156(a)(2), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch.
1167, § 4, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1251,
§ 9, eff. June 20, 2003.
§ 32.028. FEES, CHARGES, AND RATES. (a) The
department shall adopt reasonable rules and standards governing the
determination of fees, charges, and rates for medical assistance
payments.
(b) The fee, charge, or rate for a professional service is
the usual and customary fee, charge, or rate that prevails in the
community.
(c) The fee, charge, or rate for other medical assistance is
the usual and customary fee, charge, or rate that prevails in the
community unless the payment is limited by state or federal law.
(d) The department in its adoption of reasonable rules and
standards governing the determination of rates paid for inpatient
hospital services on a prospective payment basis shall:
(1) assure that the payment rates are reasonable and
adequate to meet the costs incurred by the hospital in rendering
services to Medicaid recipients;
(2) assure that the prospective payment methodology
for hospital services sets the hospital-specific standardized
amount at a minimum level of $1,600; and
(3) assure that the adjustment in payment rates for
hospital services furnished by disproportionate share hospitals
takes into account the essential role of rural hospitals in
providing access to hospital services to medically indigent persons
in rural areas of the state.
(e) The department in its adoption of reasonable rules and
standards governing the determination of rates paid for services
provided by a federally qualified health center, as defined by 42
U.S.C. Section 1396d(l)(2)(B), shall assure that a center is
reimbursed for 100 percent of reasonable costs incurred by the
center in rendering services to Medicaid recipients.
(f) The department in its adoption of reasonable rules and
standards governing the determination of rates paid for services
provided by a rural health clinic, as defined by 42 U.S.C. Section
1396d(l)(1), shall assure that a clinic is reimbursed for 100
percent of reasonable costs incurred by the clinic in rendering
services to Medicaid recipients.
(g) Subject to Subsection (i), the Health and Human Services
Commission shall ensure that the rules governing the determination
of rates paid for nursing home services improve the quality of care
by:
(1) providing a program offering incentives for
increasing direct care staff and direct care wages and benefits,
but only to the extent that appropriated funds are available after
money is allocated to base rate reimbursements as determined by the
Health and Human Services Commission's nursing facility rate
setting methodologies; and
(2) if appropriated funds are available after money is
allocated for payment of incentive-based rates under Subdivision
(1), providing incentives that incorporate the use of a quality of
care index, a customer satisfaction index, and a resolved
complaints index developed by the commission.
(h) The Health and Human Services Commission shall ensure
that the rules governing the determination of rates paid for
nursing home services provide for the rate component derived from
reported liability insurance costs to be paid only to those homes
that purchase liability insurance acceptable to the commission.
(i) The Health and Human Services Commission shall ensure
that rules governing the incentives program described by Subsection
(g)(1):
(1) provide that participation in the program by a
nursing home is voluntary;
(2) do not impose on a nursing home not participating
in the program a minimum spending requirement for direct care staff
wages and benefits;
(3) do not set a base rate for a nursing home
participating in the program that is more than the base rate for a
nursing home not participating in the program; and
(4) establish a funding process to provide incentives
for increasing direct care staff and direct care wages and benefits
in accordance with appropriations provided.
(j) The Health and Human Services Commission shall adopt
rules governing the determination of the amount of reimbursement or
credit for restocking drugs under Section 562.1085, Occupations
Code, that recognize the costs of processing the drugs, including
the cost of:
(1) reporting the drug's prescription number and date
of original issue;
(2) verifying whether the drug's expiration date or
the drug's recommended shelf life exceeds 120 days;
(3) determining the source of payment; and
(4) preparing credit records.
(k) The commission shall provide an electronic system for
the issuance of credit for returned drugs that complies with the
Health Insurance Portability and Accountability Act of 1996, Pub.
L. No. 104-191, as amended. To ensure a cost-effective system, only
drugs for which the credit exceeds the cost of the restocking fee by
at least 100 percent are eligible for credit.
(l) The commission shall establish a task force to develop
the rules necessary to implement Subsections (j) and (k). The task
force must include representatives of nursing facilities and
pharmacists.
(m) The commission may not fund an incentive program under
Subsection (g)(1) using money appropriated for base rate
reimbursements for nursing facilities.
Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1219, § 2, eff. Sept.
1, 1989; Acts 1999, 76th Leg., ch. 1411, § 1.16, eff. Sept. 1,
1999; Acts 2001, 77th Leg., ch. 974, § 31, eff. Sept. 1, 2001;
Acts 2001, 77th Leg., ch. 1284, § 10.01, eff. June 15, 2001;
Acts 2003, 78th Leg., ch. 198, § 2.102(a), eff. Sept. 1, 2003;
Acts 2003, 78th Leg., ch. 321, § 3, eff. June 18, 2003.
§ 32.0281. RULES AND NOTICE RELATING TO PAYMENT
RATES. (a) The department shall by rule describe the process used
to determine payment rates for medical assistance and shall notify
providers, consumers, the Legislative Budget Board, and the
governor's office for budget and planning of that process.
(b) The department shall adopt rules relating to payment
rates that include:
(1) a description of the process used to determine
payment rates;
(2) a description of each cost of living index used in
calculating inflation rates and the procedure for determining the
level of inflation used in the department's calculations;
(3) the criteria for desk audits;
(4) the procedure for notifying providers of
exclusions and adjustments to reported expenses, if notification is
requested; and
(5) a method of adjusting rates if new legislation,
regulations, or economic factors affect costs.
(c) The department shall include in the Title XIX State
Medicaid Plan submitted to the federal government for approval the
procedures for making available to the public the data and
methodology used in establishing payment rates.
(d) The procedures for adopting rules under this section
shall be governed by Chapter 2001, Government Code.
(e) An interested party may appeal an action taken by the
department under this section, and an appeal of such action shall be
governed by the procedures for a contested case hearing under
Chapter 2001, Government Code. The filing of an appeal under this
section shall not stay the implementation of payment rates adopted
by the department in accordance with its rules.
Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept.
1, 1995.
§ 32.0282. PUBLIC HEARING ON RATES. (a) The
department shall hold a public hearing to allow interested persons
to present comments relating to proposed payment rates for medical
assistance.
(b) The department shall provide notice of each hearing to
the public.
Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989.
§ 32.029. METHODS OF PAYMENT. (a) The department may
prescribe a method of payment for medical assistance claims by
establishing a direct vendor payment program that is administered
by the department, or by an insurance plan, a hospital or medical
service plan, or any other health service plan authorized to do
business in the state, or by a combination of those plans.
(b) The department may use any fiscal intermediary, method
of payment, or combination of methods it finds most satisfactory
and economical. The department may make whatever changes it finds
necessary from time to time to administer the program in an
economical and equitable manner consistent with simplicity of
administration and the best interest of the recipients of medical
assistance.
(c) If the department elects to make direct vendor payments,
the payments shall be made by vouchers and warrants drawn by the
comptroller on the proper account. The department shall furnish
the comptroller with a list of those vendors entitled to payments
and the amounts to which each is entitled. When the warrants are
drawn, they must be delivered to the department, which shall
supervise the delivery to vendors.
(d) If at any time state funds are not available to fully pay
all claims for medical assistance, the board shall prorate the
claims.
(e) The department or its designee must notify providers of
health care services in clear and concise language of the status of
their claims on any claim not paid or denied within 30 days of
receipt by the payor.
Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1985, 69th Leg., ch. 264, § 12, eff. Aug.
26, 1985; Acts 1993, 73rd Leg., ch. 390, § 3, eff. Sept. 1, 1993;
Acts 1995, 74th Leg., ch. 6, § 4, eff. March 23, 1995.
§ 32.0291. PREPAYMENT REVIEWS AND POSTPAYMENT
HOLDS. (a) Notwithstanding any other law, the department may:
(1) perform a prepayment review of a claim for
reimbursement under the medical assistance program to determine
whether the claim involves fraud or abuse; and
(2) as necessary to perform that review, withhold
payment of the claim for not more than five working days without
notice to the person submitting the claim.
(b) Notwithstanding any other law, the department may
impose a postpayment hold on payment of future claims submitted by a
provider if the department has reliable evidence that the provider
has committed fraud or wilful misrepresentation regarding a claim
for reimbursement under the medical assistance program. The
department must notify the provider of the postpayment hold not
later than the fifth working day after the date the hold is imposed.
(c) On timely written request by a provider subject to a
postpayment hold under Subsection (b), the department shall file a
request with the State Office of Administrative Hearings for an
expedited administrative hearing regarding the hold. The provider
must request an expedited hearing under this subsection not later
than the 10th day after the date the provider receives notice from
the department under Subsection (b). The department shall
discontinue the hold unless the department makes a prima facie
showing at the hearing that the evidence relied on by the department
in imposing the hold is relevant, credible, and material to the
issue of fraud or wilful misrepresentation.
(d) The department shall adopt rules that allow a provider
subject to a postpayment hold under Subsection (b) to seek an
informal resolution of the issues identified by the department in
the notice provided under that subsection. A provider must seek an
informal resolution under this subsection not later than the
deadline prescribed by Subsection (c). A provider's decision to
seek an informal resolution under this subsection does not extend
the time by which the provider must request an expedited
administrative hearing under Subsection (c). However, a hearing
initiated under Subsection (c) shall be stayed at the department's
request until the informal resolution process is completed.
Added by Acts 2003, 78th Leg., ch. 198, § 2.103, eff. Sept. 1,
2003.
§ 32.030. MEDICAL ASSISTANCE FUND. (a) The medical
assistance fund is a special fund in the treasury and constitutes a
separate account. The fund may be expended only for the purpose of
carrying out the provisions of this chapter.
(b) When necessary the department may request the transfer
of money appropriated for financial assistance to the medical
assistance fund. The transfer shall be requested and made in the
manner authorized in the General Appropriations Act and in
accordance with the department's rules.
(c) The disproportionate share fund is a separate account
that provides reimbursement each year to hospitals that render a
high volume of services to medically indigent persons in the state.
Payments from the fund shall be not less than $5 million annually in
state funds in excess of the amounts contained in the general
appropriations bill as introduced for the 1990-1991 biennium.
Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1985, 69th Leg., ch. 264, § 13, eff. Aug.
26, 1985; Acts 1989, 71st Leg., ch. 1219, § 3, eff. Sept. 1,
1989; Acts 1995, 74th Leg., ch. 6, § 5, eff. March 23, 1995.
§ 32.031. RECEIPT AND EXPENDITURE OF FUNDS. (a) The
department may accept federal funds for the support of the medical
assistance program and may expend the funds in the manner
prescribed by this chapter or other laws. The expenditures must be
made in accordance with appropriate agreements between the state
and the federal government.
(b) The department may administer and expend state funds
appropriated for the program in accordance with its rules and the
provisions of this chapter.
(c) The amount of state funds spent for medical assistance
on behalf of a qualified individual may not exceed the amount that
is matchable with federal funds, and the total amount of state funds
spent for all medical assistance on behalf of all qualified
individuals may not exceed the amount that is matchable with
federal funds.
(d) The board is empowered and authorized to pursue the use
of local funds as part of the state share under the Medicaid program
as provided by federal law and regulation.
(e) Public hospitals, including hospitals owned, operated,
or leased by a governmental entity, including a municipality,
county, hospital district, or this state, and specifically
including a state teaching hospital, may transfer funds to the
department for use as state share under the Medicaid
disproportionate share program.
Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1989, 71st Leg., ch. 1215, § 4, eff. Sept.
1, 1989; Acts 1995, 74th Leg., ch. 6, § 6, eff. March 23, 1995.
§ 32.0311. DRUG REIMBURSEMENT UNDER CERTAIN
PROGRAMS. The department shall require a recipient of medical
assistance to exhaust drug benefits available under the medical
assistance program before reimbursing the recipient, pharmacist,
or other health care provider for drugs purchased by or on behalf of
the recipient under the Kidney Health Care Program or the
Chronically Ill and Disabled Children's Services Program.
Added by Acts 1999, 76th Leg., ch. 669, § 1, eff. June 18, 1999.
§ 32.0315. FUNDS FOR GRADUATE MEDICAL
EDUCATION. (a) Subject to appropriated state funds, the
department shall establish procedures and formulas for the
allocation of federal medical assistance funds that are directed to
be used to support graduate medical education in connection with
the medical assistance program.
(b) The department shall allocate the funds in the manner
the department determines most effectively and equitably achieves
the purposes for which those federal funds are received, consistent
with the needs of this state for graduate medical education and the
training of resident physicians in accredited residency programs in
appropriate fields and specialties, taking into account other money
available to support graduate medical education. In determining
the needs of this state for graduate medical education, the
department shall give emphasis to graduate medical education in
primary care specialties.
(c) The department shall consult with the Texas Higher
Education Coordinating Board before adopting or revising a formula
under this section. At the request of the department, the
coordinating board shall provide the department with any
information the board possesses to assist the department in
administering this section.
(d) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.100(b).
(d-1) Expired.
(e) to (h) Repealed by Acts 2003, 78th Leg., ch. 198, §
2.100(b).
Added by Acts 1997, 75th Leg., ch. 252, § 1, eff. Sept. 1, 1997.
Amended by Acts 2003, 78th Leg., ch. 198, § 2.100(a), (b), eff.
Sept. 1, 2003.
§ 32.032. PREVENTION AND DETECTION OF FRAUD AND
ABUSE. The department shall adopt reasonable rules for minimizing
the opportunity for fraud and abuse, for establishing and
maintaining methods for detecting and identifying situations in
which a question of fraud or abuse in the program may exist, and for
referring cases where fraud or abuse appears to exist to the
appropriate law enforcement agencies for prosecution.
Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 2003, 78th Leg., ch. 198, § 2.104, eff.
Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, § 2, eff. Sept. 1,
2003.
§ 32.0321. SURETY BOND. (a) The department by rule may
require each provider of medical assistance in a provider type that
has demonstrated significant potential for fraud or abuse to file
with the department a surety bond in a reasonable amount. The
department by rule shall require a provider of medical assistance
to file with the department a surety bond in a reasonable amount if
the department identifies a pattern of suspected fraud or abuse
involving criminal conduct relating to the provider's services
under the medical assistance program that indicates the need for
protection against potential future acts of fraud or abuse.
(b) The bond under Subsection (a) must be payable to the
department to compensate the department for damages resulting from
or penalties or fines imposed in connection with an act of fraud or
abuse committed by the provider under the medical assistance
program.
(c) Subject to Subsection (d) or (e), the department by rule
may require each provider of medical assistance that establishes a
resident's trust fund account to post a surety bond to secure the
account. The bond must be payable to the department to compensate
residents of the bonded provider for trust funds that are lost,
stolen, or otherwise unaccounted for if the provider does not repay
any deficiency in a resident's trust fund account to the person
legally entitled to receive the funds.
(d) The department may not require the amount of a surety
bond posted for a single facility provider under Subsection (c) to
exceed the average of the total average monthly balance of all the
provider's resident trust fund accounts for the 12-month period
preceding the bond issuance or renewal date.
(e) If an employee of a provider of medical assistance is
responsible for the loss of funds in a resident's trust fund
account, the resident, the resident's family, and the resident's
legal representative are not obligated to make any payments to the
provider that would have been made out of the trust fund had the
loss not occurred.
Added by Acts 1997, 75th Leg., ch. 1153, § 2.03, eff. Sept. 1,
1997. Amended by Acts 2003, 78th Leg., ch. 198, § 2.105, eff.
Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, § 3, eff. Sept. 1,
2003.
§ 32.0322. CRIMINAL HISTORY RECORD
INFORMATION. (a) The department may obtain from any law
enforcement or criminal justice agency the criminal history record
information that relates to a provider under the medical assistance
program or a person applying to enroll as a provider under the
medical assistance program.
(b) The department by rule shall establish criteria for
revoking a provider's enrollment or denying a person's application
to enroll as a provider under the medical assistance program based
on the results of a criminal history check.
Added by Acts 1997, 75th Leg., ch. 1153, § 2.04(a), eff. Sept. 1,
1997.
§ 32.033. SUBROGATION. (a) The filing of an
application for or receipt of medical assistance constitutes an
assignment of the applicant's or recipient's right of recovery
from:
(1) personal insurance;
(2) other sources; or
(3) another person for personal injury caused by the
other person's negligence or wrong.
(b) A person who applies for or receives medical assistance
shall inform the department, at the time of application or at any
time during eligibility and receipt of services, of any unsettled
tort claim which may affect medical needs and of any private
accident or sickness insurance coverage that is or may become
available. A recipient shall inform the department of any injury
requiring medical attention that is caused by the act or failure to
act of some other person. An applicant or a recipient shall inform
the department as required by this subsection within 60 days of the
date the person learns of his or her insurance coverage, tort claim,
or potential cause of action. An applicant or a recipient who
knowingly and intentionally fails to disclose the information
required by this subsection commits a Class C misdemeanor.
(c) A claim for damages for personal injury does not
constitute grounds for denying or discontinuing assistance under
this chapter.
(d) A separate and distinct cause of action in favor of the
state is hereby created, and the department may, without written
consent, take direct civil action in any court of competent
jurisdiction. A suit brought under this section need not be
ancillary to or dependent upon any other action.
(e) The department's right of recovery is limited to the
amount of the cost of medical care services paid by the department.
Other subrogation rights granted under this section are limited to
the cost of the services provided.
(f) The commissioner may waive the department's right of
recovery in whole or in part when the commissioner finds that
enforcement would tend to defeat the purpose of public assistance.
(g) The department may designate an agent to collect funds
the department has a right to recover from third parties under this
section. The department shall use any funds collected to pay costs
of administering the medical assistance program.
(h) The department may adopt rules for the enforcement of
its right of recovery.
Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1979, 66th Leg., p. 2436, ch. 842, art. 2,
§ 10, eff. Sept. 1, 1979.
§ 32.034. CONTRACT CANCELLATION; NOTICE AND
HEARING. (a) The department has authority to adjudicate claims
of contested cases in accordance with Chapter 2001, Government
Code. When the department intends to cancel its contract or impose
monetary penalties under a contract with a person providing medical
assistance, the department shall give reasonable notice and an
opportunity for hearing if one is requested. The department shall
adopt rules consistent with Chapter 2001, Government Code to
implement this section, and hearings under this section are
contested cases under that act.
(b) The department may not terminate a contract during the
pendency of a hearing under this section. The department may
withhold payments during the pendency of a hearing, but the
department shall pay the withheld payments and resume contract
payments if the final determination is favorable to the contractor.
The department's authority to withhold payments shall be
established by contract.
(c) The section does not apply if federal matching funds are
not available to pay the facility whose contract is being
cancelled. If federal matching funds cannot be used, no state funds
may be used to pay the facility.
Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 2.02, eff.
Sept. 1, 1987; Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.22,
eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49),
eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 2.03, eff.
Sept. 1, 1997.
§ 32.035. APPEALS. The provisions of Section 31.034 of
this code governing the right of appeal of an applicant for or
recipient of financial assistance authorized under Chapter 31 of
this code also apply to applicants for medical assistance
authorized in this chapter.
Acts 1979, 66th Leg., p. 2353, ch. 842, art. 1, § 1, eff. Sept. 1,
1979.
§ 32.036. PROGRAM PAYMENTS NONASSIGNABLE AND EXEMPT FROM
LEGAL PROCESS. (a) Neither medical assistance nor payments to
providers of medical assistance under this chapter are transferable
or assignable at law or in equity.
(b) No money paid or payable under the provisions of this
chapter is subject to execution, levy, attachment, garnishment, or
any other legal process, or the operation of any insolvency law.
(c) This section does not apply to the extent that it
conflicts with the Social Security Act (42 U.S.C. Section
1396a(a)(32)).
Acts 1979, 66th Leg., p. 2353, ch. 842, art. 1, § 1, eff. Sept. 1,
1979. Amended by Acts 1997, 75th Leg., ch. 216, § 1, eff. May 23,
1997.
§ 32.038. COLLECTION OF INSURANCE PAYMENTS. (a) The
department may receive directly from an insurance company any
payments to which the department is entitled under Article 3.76,
Insurance Code.
(b) The department shall adopt rules to implement this
section, including rules establishing procedures relating to:
(1) notification to the department that a child
receiving benefits under Chapter 31 or Chapter 32 of this code is
covered by an insurance policy under which the department is
eligible to receive direct payments;
(2) claims made by the department to receive payments
under Subsection (a) of this section;
(3) notification to the department of any change in
the status of the child or the parent; and
(4) notification to the insurance company that the
department is to receive payments under Subsection (a) of this
section.
(c) Department rules relating to the notice prescribed by
Subsection (b)(4) of this section must require the notice to be
attached to the claim for insurance benefits when the claim is first
submitted to the insurance company.
Added by Acts 1987, 70th Leg., ch. 1052, § 2.03, eff. Sept. 1,
1987.
§ 32.0381. ICF-MR PAYMENT RATES. (a) The board shall
set the payment rates for ICF-MR facilities at least annually.
(b) The board shall adopt by rule the methodology used by
the department in setting payment rates for ICF-MR facilities. The
methodology shall clearly define the procedures and methods used in
projecting the costs of economic and efficient facilities and the
procedures and methods used in setting payment rates that
reasonably reimburse facilities at each level of care and in each
class of providers, including size categories.
(c) The board shall ensure that the methodology used in
projecting costs and setting payment rates and its implementation
is the same for state-operated ICF-MR facilities and for private
ICF-MR facilities. Methods used to project costs, including those
involving the handling of gifts, grants, and donations, upper
limits on facility and administrative costs, occupancy
adjustments, and in assessing the cost impact of new or revised
requirements, must be the same for state-operated and private
facilities.
(d) To the extent allowed by federal law, any differences in
methodology or its implementation between state-operated
facilities and private facilities must be stated explicitly in the
rule, must be related to actual differences in the nature of the
expenses incurred by the class of providers, including size
categories, and must not favor state-operated facilities in setting
payment rates. When the proposed rule or amendments to the rule are
published for public comment, the commissioner must certify that
any differences in methodology between classes of providers,
including size categories, are necessitated by cost structure and
will not favor state-operated facilities in the setting of payment
rates.
Added by Acts 1989, 71st Leg., ch. 1141, § 11(a), eff. Sept. 1,
1989.
§ 32.039. DAMAGES AND PENALTIES. (a) In this section:
(1) "Claim" means an application for payment of health
care services under Title XIX of the federal Social Security Act
that is submitted by a person who is under a contract or provider
agreement with the department.
(1-a) "Inducement" includes a service, cash in any
amount, entertainment, or any item of value.
(2) "Managed care organization" means any entity or
person that is authorized or otherwise permitted by law to arrange
for or provide a managed care plan.
(3) "Managed care plan" means a plan under which a
person undertakes to provide, arrange for, pay for, or reimburse
any part of the cost of any health care service. A part of the plan
must consist of arranging for or providing health care services as
distinguished from indemnification against the cost of those
services on a prepaid basis through insurance or otherwise. The
term does not include a plan that indemnifies a person for the cost
of health care services through insurance.
(4) A person "should know" or "should have known"
information to be false if the person acts in deliberate ignorance
of the truth or falsity of the information or in reckless disregard
of the truth or falsity of the information, and proof of the
person's specific intent to defraud is not required.
(b) A person commits a violation if the person:
(1) presents or causes to be presented to the
department a claim that contains a statement or representation the
person knows or should know to be false;
(1-a) engages in conduct that violates Section
102.001, Occupations Code;
(1-b) solicits or receives, directly or indirectly,
overtly or covertly any remuneration, including any kickback,
bribe, or rebate, in cash or in kind for referring an individual to
a person for the furnishing of, or for arranging the furnishing of,
any item or service for which payment may be made, in whole or in
part, under the medical assistance program, provided that this
subdivision does not prohibit the referral of a patient to another
practitioner within a multispecialty group or university medical
services research and development plan (practice plan) for
medically necessary services;
(1-c) solicits or receives, directly or indirectly,
overtly or covertly any remuneration, including any kickback,
bribe, or rebate, in cash or in kind for purchasing, leasing, or
ordering, or arranging for or recommending the purchasing, leasing,
or ordering of, any good, facility, service, or item for which
payment may be made, in whole or in part, under the medical
assistance program;
(1-d) offers or pays, directly or indirectly, overtly
or covertly any remuneration, including any kickback, bribe, or
rebate, in cash or in kind to induce a person to refer an individual
to another person for the furnishing of, or for arranging the
furnishing of, any item or service for which payment may be made, in
whole or in part, under the medical assistance program, provided
that this subdivision does not prohibit the referral of a patient to
another practitioner within a multispecialty group or university
medical services research and development plan (practice plan) for
medically necessary services;
(1-e) offers or pays, directly or indirectly, overtly
or covertly any remuneration, including any kickback, bribe, or
rebate, in cash or in kind to induce a person to purchase, lease, or
order, or arrange for or recommend the purchase, lease, or order of,
any good, facility, service, or item for which payment may be made,
in whole or in part, under the medical assistance program;
(1-f) provides or offers an inducement in a manner or
for a purpose not otherwise prohibited by this section or Section
102.001, Occupations Code, to an individual, including a recipient,
provider, or employee of a provider, for the purpose of influencing
a decision regarding selection of a provider or receipt of a good or
service under the medical assistance program or for the purpose of
otherwise influencing a decision regarding the use of goods or
services provided under the medical assistance program; or
(2) is a managed care organization that contracts with
the department to provide or arrange to provide health care
benefits or services to individuals eligible for medical assistance
and:
(A) fails to provide to an individual a health
care benefit or service that the organization is required to
provide under the contract with the department;
(B) fails to provide to the department
information required to be provided by law, department rule, or
contractual provision;
(C) engages in a fraudulent activity in
connection with the enrollment in the organization's managed care
plan of an individual eligible for medical assistance or in
connection with marketing the organization's services to an
individual eligible for medical assistance; or
(D) engages in actions that indicate a pattern
of:
(i) wrongful denial of payment for a health
care benefit or service that the organization is required to
provide under the contract with the department; or
(ii) wrongful delay of at least 45 days or a
longer period specified in the contract with the department, not to
exceed 60 days, in making payment for a health care benefit or
service that the organization is required to provide under the
contract with the department.
(c) A person who commits a violation under Subsection (b) is
liable to the department for:
(1) the amount paid, if any, as a result of the
violation and interest on that amount determined at the rate
provided by law for legal judgments and accruing from the date on
which the payment was made; and
(2) payment of an administrative penalty of an amount
not to exceed twice the amount paid, if any, as a result of the
violation, plus an amount:
(A) not less than $5,000 or more than $15,000 for
each violation that results in injury to an elderly person, as
defined by Section 48.002(1), a disabled person, as defined by
Section 48.002(8)(A), or a person younger than 18 years of age; or
(B) not more than $10,000 for each violation that
does not result in injury to a person described by Paragraph (A).
(d) Unless the provider submitted information to the
department for use in preparing a voucher that the provider knew or
should have known was false or failed to correct information that
the provider knew or should have known was false when provided an
opportunity to do so, this section does not apply to a claim based
on the voucher if the department calculated and printed the amount
of the claim on the voucher and then submitted the voucher to the
provider for the provider's signature. In addition, the provider's
signature on the voucher does not constitute fraud. The department
shall adopt rules that establish a grace period during which errors
contained in a voucher prepared by the department may be corrected
without penalty to the provider.
(e) In determining the amount of the penalty to be assessed
under Subsection (c)(2), the department shall consider:
(1) the seriousness of the violation;
(2) whether the person had previously committed a
violation; and
(3) the amount necessary to deter the person from
committing future violations.
(f) If after an examination of the facts the department
concludes that the person committed a violation, the department may
issue a preliminary report stating the facts on which it based its
conclusion, recommending that an administrative penalty under this
section be imposed and recommending the amount of the proposed
penalty.
(g) The department shall give written notice of the report
to the person charged with committing the violation. The notice
must include a brief summary of the facts, a statement of the amount
of the recommended penalty, and a statement of the person's right to
an informal review of the alleged violation, the amount of the
penalty, or both the alleged violation and the amount of the
penalty.
(h) Not later than the 10th day after the date on which the
person charged with committing the violation receives the notice,
the person may either give the department written consent to the
report, including the recommended penalty, or make a written
request for an informal review by the department.
(i) If the person charged with committing the violation
consents to the penalty recommended by the department or fails to
timely request an informal review, the department shall assess the
penalty. The department shall give the person written notice of its
action. The person shall pay the penalty not later than the 30th
day after the date on which the person receives the notice.
(j) If the person charged with committing the violation
requests an informal review as provided by Subsection (h), the
department shall conduct the review. The department shall give the
person written notice of the results of the review.
(k) Not later than the 10th day after the date on which the
person charged with committing the violation receives the notice
prescribed by Subsection (j), the person may make to the department
a written request for a hearing. The hearing must be conducted in
accordance with Chapter 2001, Government Code.
(l) If, after informal review, a person who has been ordered
to pay a penalty fails to request a formal hearing in a timely
manner, the department shall assess the penalty. The department
shall give the person written notice of its action. The person
shall pay the penalty not later than the 30th day after the date on
which the person receives the notice.
(m) Within 30 days after the date on which the board's order
issued after a hearing under Subsection (k) becomes final as
provided by Section 2001.144, Government Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(n) A person who acts under Subsection (m)(3) within the
30-day period may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the court
for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the department's order is
final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner by certified mail.
(o) If the commissioner receives a copy of an affidavit
under Subsection (n)(2), the commissioner may file with the court,
within five days after the date the copy is received, a contest to
the affidavit. The court shall hold a hearing on the facts alleged
in the affidavit as soon as practicable and shall stay the
enforcement of the penalty on finding that the alleged facts are
true. The person who files an affidavit has the burden of proving
that the person is financially unable to pay the amount of the
penalty and to give a supersedeas bond.
(p) If the person charged does not pay the amount of the
penalty and the enforcement of the penalty is not stayed, the
department may forward the matter to the attorney general for
enforcement of the penalty and interest as provided by law for legal
judgments. An action to enforce a penalty order under this section
must be initiated in a court of competent jurisdiction in Travis
County or in the county in which the violation was committed.
(q) Judicial review of a department order or review under
this section assessing a penalty is under the substantial evidence
rule. A suit may be initiated by filing a petition with a district
court in Travis County, as provided by Subchapter G, Chapter 2001,
Government Code.
(r) If a penalty is reduced or not assessed, the department
shall remit to the person the appropriate amount plus accrued
interest if the penalty has been paid or shall execute a release of
the bond if a supersedeas bond has been posted. The accrued
interest on amounts remitted by the department under this
subsection shall be paid at a rate equal to the rate provided by law
for legal judgments and shall be paid for the period beginning on
the date the penalty is paid to the department under this section
and ending on the date the penalty is remitted.
(s) A damage, cost, or penalty collected under this section
is not an allowable expense in a claim or cost report that is or
could be used to determine a rate or payment under the medical
assistance program.
(t) All funds collected under this section shall be
deposited in the State Treasury to the credit of the General Revenue
Fund.
(u) Except as provided by Subsection (w), a person found
liable for a violation u
