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CONCURRENT RESOLUTION
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WHEREAS, Plaintiffs Dorena Coleman, Curtis Jackson, and |
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Federico Perez, individually, (collectively referred to as |
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"Plaintiffs"), filed suit on August 13, 2020, against the Texas |
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Health and Human Services Commission, including employees in their |
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official capacities ("HHSC"), and sought relief both on Plaintiffs' |
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own behalf and on behalf of a class of similarly situated |
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individuals ("Medicaid HCV Class"), and filed a motion for class |
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certification on August 14, 2020; and |
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WHEREAS, Plaintiffs alleged HHSC's Prior Authorization |
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Criteria and Policy's use of fibrosis score as criterion for direct |
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action antiviral drug (DAA) coverage violated Title XIX of the |
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Social Security Act: |
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(a) By discriminating among similarly situated Medicaid |
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recipients on the basis of categorical restrictions that are not |
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based upon prevailing clinical standards, as prohibited by 42 |
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U.S.C. § 1396a(a)(10)(B)(i) and (ii) and 42 C.F.R. § 440.240; |
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(b) By denying qualified Medicaid participants the |
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provision of necessary medical assistance and treatment coverage |
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with "reasonable promptness," as required by 42 U.S.C. § |
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1396a(a)(8); |
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(c) By excluding qualified Medicaid recipients from |
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medically necessary treatment coverage as required by 42 U.S.C. § |
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1396a(a)(10)(A); and |
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WHEREAS, Defendants denied the allegations of the Lawsuit, |
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denied all allegations of wrongdoing and liability, and denied any |
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causation of harm or damage to the Medicaid HCV Class; and |
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WHEREAS, The parties mediated this matter on December 1, |
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2020, with the Honorable Patrick Keel as mediator, and thereafter |
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successfully reached an agreement in principle on December 17, |
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2020; and |
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WHEREAS, The Parties have now agreed to a full settlement on |
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the following terms: |
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(a) HHSC will modify its Medicaid prior authorization (PA) |
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criteria to treat chronic Hepatitis C clients who have METAVIR |
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fibrosis scores of F2-F4 with Direct Acting Antiviral (DAA) |
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treatment by March 1, 2021; |
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(b) Between March 1, 2021, and September 1, 2021, Medicaid |
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enrollees with severe extrahepatic effects of chronic Hepatitis C |
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who have fibrosis scores other than F2-F4 will be approved for DAA |
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treatment on a case-by-case basis by the HHSC Chief Medical |
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Director or an MCO Medical Director, if they are assigned to an MCO; |
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(c) As of September 1, 2021, HHSC will remove all METAVIR |
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fibrosis score, drug screening, and specialist prescription PA |
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criteria requirements for DAA treatment for chronic Hepatitis C |
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clients, if the legislature approves the funding for HHSC's |
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Exceptional Item (EI); HHSC agrees that, for the period September |
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1, 2021, through August 31, 2023, HHSC will not reinstate these |
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criteria; and |
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WHEREAS, This Agreement is expressly conditioned upon |
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approval by the Office of the Attorney General of Texas, the |
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Governor of Texas, and the Texas Legislature; and |
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WHEREAS, This Agreement is expressly conditioned upon |
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enactment by the Texas Legislature of the EI requested by HHSC; and |
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WHEREAS, Section 111.003(b), Texas Civil Practice and |
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Remedies Code, requires a state agency to obtain legislative |
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approval of a settlement agreement that "commits this state to a |
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course of action that in reasonable probability will entail a |
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continuing increased expenditure of state funds over subsequent |
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state fiscal bienniums"; therefore, the Settlement Agreement is |
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expressly conditioned upon the legislature approving and |
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appropriating the agreed upon settlement amount; now, therefore, be |
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it |
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RESOLVED, That the 87th Legislature of the State of Texas |
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hereby approve the proposed Settlement Agreement. |