By: Wohlgemuth, Heflin H.B. No. 2292
A BILL TO BE ENTITLED
AN ACT
relating to the provision of health and human services in this
state, including the powers and duties of the Health and Human
Services Commission and other state agencies; providing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
ARTICLE 1. ORGANIZATION OF THE HEALTH AND HUMAN SERVICES
COMMISSION AND HEALTH AND HUMAN SERVICES AGENCIES
SECTION 1.01. (a) Section 531.001(4), Government Code, as
amended by Chapters 53, 957, and 1420, Acts of the 77th Legislature,
Regular Session, 2001, is reenacted and amended to read as follows:
(4) "Health and human services agencies" includes the:
(A) Interagency Council on Early Childhood
Intervention;
(B) Texas Department on Aging;
(C) Texas Commission on Alcohol and Drug Abuse;
(D) Texas Commission for the Blind;
(E) Texas Commission for the Deaf and Hard of
Hearing;
(F) Texas Department of Health;
(G) Texas Department of Human Services;
(H) Texas Department of Mental Health and Mental
Retardation;
(I) Texas Rehabilitation Commission;
(J) Department of Protective [and Regulatory]
Services; [and]
(K) Texas Health Care Information Council;
(L) Department of Supportive Services; and
(M) Department of Health Services.
(b) Effective on the date the agencies listed in Section
1.25 of this article are abolished as provided by that section,
Section 531.001(4), Government Code, as amended by Chapters 53,
957, and 1420, Acts of the 77th Legislature, Regular Session, 2001,
is reenacted and amended to read as follows:
(4) "Health and human services agencies" includes the:
(A) Department of Supportive Services
[Interagency Council on Early Childhood Intervention];
(B) Department of Health Services [Texas
Department on Aging]; and
(C) [Texas Commission on Alcohol and Drug Abuse;
[(D) Texas Commission for the Blind;
[(E) Texas Commission for the Deaf and Hard of
Hearing;
[(F) Texas Department of Health;
[(G) Texas Department of Human Services;
[(H) Texas Department of Mental Health and Mental
Retardation;
[(I) Texas Rehabilitation Commission;
[(J)] Department of Protective [and Regulatory]
Services[; and
[(K) Texas Health Care Information Council].
SECTION 1.02. Section 531.004, Government Code, is amended
to read as follows:
Sec. 531.004. SUNSET PROVISION. The Health and Human
Services Commission is subject to Chapter 325 (Texas Sunset Act).
Unless continued in existence as provided by that chapter, the
commission is abolished and this chapter expires September 1, 2009
[2007].
SECTION 1.03. Section 531.0055, Government Code, is amended
to read as follows:
Sec. 531.0055. COMMISSIONER: GENERAL RESPONSIBILITY FOR
[RELATING TO CERTAIN FUNCTIONS OF] HEALTH AND HUMAN SERVICES
AGENCIES. (a) In this section and in Section 531.0056, "agency
director"[:
[(1) "Agency director"] means the [director,
executive director, or] commissioner of a health and human services
agency.
[(2) "Policymaking body" means the board or commission
with policymaking authority over a health and human services
agency.]
(b) The commission shall:
(1) supervise the administration and operation of the
Medicaid program, including the administration and operation of the
Medicaid managed care system in accordance with Section 531.021;
(2) perform [supervise] information systems planning
and management for health and human services agencies under Section
531.0273, with:
(A) the provision of information technology
services at health and human services agencies considered to be a
centralized administrative support service either performed by
commission personnel or performed under a contract with the
commission; and
(B) an emphasis on research and implementation on
a demonstration or pilot basis of appropriate and efficient uses of
new and existing technology to improve the operation of health and
human services agencies and delivery of health and human services;
(3) monitor and ensure the effective use of all
federal funds received by a health and human services agency in
accordance with Section 531.028 and the General Appropriations Act;
[and]
(4) implement Texas Integrated Enrollment Services as
required by Subchapter F, except that notwithstanding Subchapter F,
determining eligibility for benefits under the following programs
is the responsibility of and must be centralized by the commission:
(A) the child health plan program;
(B) the financial assistance program under
Chapter 31, Human Resources Code;
(C) the medical assistance program under Chapter
32, Human Resources Code;
(D) the nutritional assistance programs under
Chapter 33, Human Resources Code;
(E) Supplemental Security Income (SSI) (42
U.S.C. Section 1381 et seq.) and its subsequent amendments, to the
extent permitted by federal law;
(F) long-term care services, as defined by
Section 22.0011, Human Resources Code; and
(G) community-based support services identified
or provided in accordance with Section 531.02481; and
(5) implement programs intended to prevent family
violence and provide services to victims of family violence.
(c) The [After implementation of the commission's duties
under Subsection (b), the] commission shall implement the powers
and duties given to the commission under Sections 531.0246,
531.0247, 2155.144, [as added by Chapter 1045, Acts of the 75th
Legislature, Regular Session, 1997,] and 2167.004.
(d) After implementation of the commission's duties under
Subsections (b) and (c), the commission shall implement the powers
and duties given to the commission under Section 531.0248. Nothing
in the priorities established by this section is intended to limit
the authority of the commission to work simultaneously to achieve
the multiple tasks assigned to the commission in this section, when
such an approach is beneficial in the judgment of the commission.
The commission shall plan and implement an efficient and effective
centralized system of administrative support services for health
and human services agencies. The performance of administrative
support services for health and human services agencies is the
responsibility of the commission. The term "administrative support
services" includes, but is not limited to, strategic planning and
evaluation, audit, legal, human resources, information resources,
purchasing, contract management, financial management, and
accounting services.
(e) Notwithstanding any other law, the commissioner shall
adopt rules and policies for the operation of and provision of
health and human services by the health and human services
agencies. In addition, the commissioner, as necessary to perform
the functions described by Subsections (b), (c), and (d) in
implementation of applicable [the] policies established for an
agency by the commissioner [each agency's policymaking body],
shall:
(1) manage and direct the operations of each health
and human services agency; and
(2) supervise and direct the activities of each agency
director.
(f) The operational authority and responsibility of the
commissioner for purposes of Subsection (e) at each health and
human services agency includes authority over and responsibility
for the:
(1) management of the daily operations of the agency,
including the organization and management of the agency and agency
operating procedures;
(2) allocation of resources within the agency,
including use of federal funds received by the agency;
(3) personnel and employment policies;
(4) contracting, purchasing, and related policies,
subject to this chapter and other laws relating to contracting and
purchasing by a state agency;
(5) information resources systems used by the agency;
(6) location of agency facilities; and
(7) coordination of agency activities with activities
of other state agencies, including other health and human services
agencies.
(g) Notwithstanding any other law, the operational
authority and responsibility of the commissioner for purposes of
Subsection (e) at each health and human services agency includes
the authority and responsibility to adopt or approve, subject to
applicable limitations, any rate of payment or similar provision
required by law to be adopted or approved by the agency.
(h) For each health and human services agency, the
commissioner shall implement a program to evaluate and supervise
the daily operations of the agency. The program must include
measurable performance objectives for each agency director and
adequate reporting requirements to permit the commissioner to
perform the duties assigned to the commissioner under this section.
(i) To facilitate the operations of a health and human
services agency in accordance with this section, the commissioner
may delegate a specific power or duty given under Subsection (f) or
(g) to an agency director. The agency director acts on behalf of
the commissioner in performing the delegated function and reports
to the commissioner regarding the delegated function and any matter
affecting agency programs and operations.
(j) The commissioner shall [may] adopt rules to implement
the commissioner's authority under this section.
(k) The commissioner and each agency director shall enter
into a memorandum of understanding in the manner prescribed by
Section 531.0163 that:
(1) clearly defines the responsibilities of the agency
director and the commissioner, including:
(A) the responsibility of the agency director to
report to the governor and to report to and implement policies of
the commissioner; and
(B) the extent to which the agency director acts
as a liaison between the agency and the commission;
(2) establishes the program of evaluation and
supervision of daily operations required by Subsection (h); and
(3) describes each delegation of a power or duty made
under Subsection (i) or other law.
(l) Notwithstanding any other law, the commissioner
[provision of this section, a policymaking body] has the authority
[provided by law] to adopt policies and rules governing the
delivery of services to persons who are served by each health and
human services [the] agency and the rights and duties of persons who
are served or regulated by each [the] agency. [The commissioner and
each policymaking body shall enter into a memorandum of
understanding that clearly defines:
[(1) the policymaking authority of the policymaking
body; and
[(2) the operational authority of the commissioner.]
SECTION 1.04. Section 531.0056, Government Code, is amended
to read as follows:
Sec. 531.0056. APPOINTMENT [EMPLOYMENT] OF AGENCY DIRECTOR
BY GOVERNOR. (a) The governor shall appoint an agency director for
each health and human services agency. [This section applies only
to an agency director employed by the commissioner.]
(b) The agency director shall serve for a term of one year.
[An agency director employed by the commissioner may be employed
only with the concurrence of the agency's policymaking body and the
approval of the governor.]
(c) In addition to the requirements of [As established in]
Section 531.0055(k)(1), the memorandum of understanding required
by that section must [the commissioner and agency director shall
enter into a memorandum of understanding that] clearly define
[defines] the responsibilities of the agency director [and may
establish terms and conditions of employment in the memorandum of
understanding].
(d) The terms of the memorandum of understanding shall
outline specific performance objectives, as defined [jointly] by
the commissioner [and the policymaking body], to be fulfilled by
the agency director, including the performance objectives outlined
in Section 531.0055(h).
(e) Based upon the performance objectives outlined in the
memorandum of understanding, the commissioner shall perform an
employment evaluation of the agency director.
(f) The commissioner shall submit the evaluation[, along
with any recommendation regarding the employment of the agency
director,] to the [agency's policymaking body and the] governor not
later than January 1 of each even-numbered year.
[(g) The policymaking body shall consider the evaluation in
a meeting of the policymaking body and take necessary action, if
any, not later than 90 days after the date of the receipt of the
evaluation.
[(h) An agency director employed by the commissioner serves
at the pleasure of the commissioner but may be discharged only with
the concurrence of the agency's policymaking body.]
SECTION 1.05. Section 531.008, Government Code, is amended
to read as follows:
Sec. 531.008. DIVISIONS OF COMMISSION. (a) Subject to
Subsection (c), the [The] commissioner may establish divisions
within the commission as necessary for effective administration and
for the discharge of the commission's functions.
(b) Subject to Subsection (c), the [The] commissioner may
allocate and reallocate functions among the commission's
divisions.
(c) The commissioner shall establish the following
divisions and offices within the commission:
(1) the eligibility services division to make
eligibility determinations for services provided through the
commission or a health and human services agency related to:
(A) the child health plan program;
(B) the financial assistance program under
Chapter 31, Human Resources Code;
(C) the medical assistance program under Chapter
32, Human Resources Code;
(D) the nutritional assistance programs under
Chapter 33, Human Resources Code;
(E) Supplemental Security Income (SSI) (42
U.S.C. Section 1381 et seq.) and its subsequent amendments, to the
extent permitted by federal law;
(F) long-term care services, as defined by
Section 22.0011, Human Resources Code; and
(G) community-based support services identified
or provided in accordance with Section 531.02481;
(2) the office of inspector general to conduct audits
and perform fraud and abuse investigation and enforcement functions
as provided by Subchapter C and other law;
(3) the office of the ombudsman to:
(A) provide dispute resolution services for the
commission and the health and human services agencies; and
(B) perform consumer protection functions
related to health and human services;
(4) a purchasing division as provided by Section
531.017;
(5) the office for the blind to provide and coordinate
programs for the treatment, rehabilitation, and benefit of persons
who are blind or visually impaired;
(6) the office for the deaf and hard of hearing to
provide and coordinate programs for the treatment, rehabilitation,
and benefit of persons who are deaf or hard of hearing; and
(7) the office of rehabilitation services to provide
and coordinate programs for the rehabilitation of persons with
disabilities so that they may prepare for and engage in a gainful
occupation or achieve maximum personal independence.
SECTION 1.06. Subchapter A, Chapter 531, Government Code, is
amended by adding Sections 531.0161, 531.0162, and 531.0163 to read
as follows:
Sec. 531.0161. NEGOTIATED RULEMAKING AND ALTERNATIVE
DISPUTE PROCEDURES. (a) The commission shall develop and
implement a policy, for the commission and each health and human
services agency, to encourage the use of:
(1) negotiated rulemaking procedures under Chapter
2008 for the adoption of commission rules; and
(2) appropriate alternative dispute resolution
procedures under Chapter 2009 to assist in the resolution of
internal and external disputes under the commission's or agency's
jurisdiction.
(b) The procedures relating to alternative dispute
resolution must conform, to the extent possible, to any model
guidelines issued by the State Office of Administrative Hearings
for the use of alternative dispute resolution by state agencies.
Sec. 531.0162. USE OF TECHNOLOGY. (a) The commission shall
develop and implement a policy requiring the agency commissioner
and employees of each health and human services agency to research
and propose appropriate technological solutions to improve the
agency's ability to perform its functions. The technological
solutions must:
(1) ensure that the public is able to easily find
information about a health and human services agency on the
Internet;
(2) ensure that persons who want to use a health and
human services agency's services are able to:
(A) interact with the agency through the
Internet; and
(B) access any service that can be provided
effectively through the Internet; and
(3) be cost-effective and developed through the
commission's planning process.
(b) The commission shall develop and implement a policy
described by Subsection (a) in relation to the commission's
functions.
Sec. 531.0163. MEMORANDUM OF UNDERSTANDING. (a) The
memorandum of understanding under Section 531.0055(k) must be
adopted by the commissioner by rule in accordance with the
procedures prescribed by Subchapter B, Chapter 2001, for adopting
rules, except that the requirements of Section 2001.033(a)(1)(A) or
(C) do not apply with respect to any part of the memorandum of
understanding that:
(1) concerns only internal management or organization
within or among health and human services agencies and does not
affect private rights or procedures; or
(2) relates solely to the internal personnel practices
of health and human services agencies.
(b) The memorandum of understanding may be amended only by
following the procedures prescribed under Subsection (a).
SECTION 1.07. Subchapter B, Chapter 531, Government Code, is
amended by adding Section 531.0224 to read as follows:
Sec. 531.0224. PLANNING AND POLICY DIRECTION OF TEMPORARY
ASSISTANCE FOR NEEDY FAMILIES PROGRAM. The commission shall:
(1) plan and direct the financial assistance program
under Chapter 31, Human Resources Code, including the procurement,
management, and monitoring of contracts necessary to implement the
program;
(2) adopt rules and standards governing the financial
assistance program under Chapter 31, Human Resources Code, in
consultation with the policy councils of the agencies that operate
the program, including rules for determining eligibility for and
the amount and duration of an earned income disregard; and
(3) establish requirements for and define the scope of
the ongoing evaluation of the financial assistance program under
Chapter 31, Human Resources Code.
SECTION 1.08. Chapter 531, Government Code, is amended by
adding Subchapters K, L, and M to read as follows:
SUBCHAPTER K. HEALTH AND HUMAN SERVICES COUNCIL
Sec. 531.401. DEFINITION. In this subchapter, "council"
means the Health and Human Services Council.
Sec. 531.402. HEALTH AND HUMAN SERVICES COUNCIL. (a) The
Health and Human Services Council is created to assist the
commissioner in developing rules and policies for the commission.
(b) The council is composed of nine members of the public
appointed by the governor with the advice and consent of the senate.
To be eligible for appointment to the council, a person must have
demonstrated an interest in and knowledge of problems and available
services related to the child health plan program, the financial
assistance program under Chapter 31, Human Resources Code, the
medical assistance program under Chapter 32, Human Resources Code,
or the nutritional assistance programs under Chapter 33, Human
Resources Code.
(c) The council shall study and make recommendations to the
commissioner regarding the management and operation of the
commission, including policies and rules governing the delivery of
services to persons who are served by the commission and the rights
and duties of persons who are served or regulated by the commission.
(d) Chapter 551 applies to the council.
(e) Chapter 2110 does not apply to the council.
(f) A majority of the members of the council constitute a
quorum for the transaction of business.
Sec. 531.403. APPOINTMENTS. (a) Appointments to the
council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees.
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Notwithstanding Subsection (a), appointments to the council must
reflect the ethnic diversity of this state.
Sec. 531.404. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A
person who is appointed as a member of the council may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the council until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the commission and
the council;
(2) the programs operated by the commission;
(3) the role and functions of the commission and the
council, including detailed information regarding the advisory
responsibilities of the council;
(4) the rules of the commissioner applicable to the
commission, with an emphasis on the rules that relate to
disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the
commission;
(7) the requirements of:
(A) the open meetings law, Chapter 551;
(B) the public information law, Chapter 552;
(C) the administrative procedure law, Chapter
2001; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commissioner or the Texas Ethics Commission.
Sec. 531.405. TERMS. (a) Council members serve for
staggered six-year terms with the terms of three members expiring
February 1 of each odd-numbered year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
Sec. 531.406. VACANCY. The governor by appointment shall
fill the unexpired term of a vacancy on the council.
Sec. 531.407. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS.
(a) The governor shall designate a member of the council as the
presiding officer to serve in that capacity at the pleasure of the
governor.
(b) The members of the council shall elect any other
necessary officers.
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 531.408. REIMBURSEMENT FOR EXPENSES. A council member
may not receive compensation for service as a member of the council
but is entitled to reimbursement for travel expenses incurred by
the member while conducting the business of the council as provided
by the General Appropriations Act.
Sec. 531.409. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The commissioner, with the advice of the council, shall prepare
information of public interest describing the functions of the
commission and the procedures by which complaints are filed with
and resolved by the commission. The commission shall make the
information available to the public and appropriate state
governmental entities.
(b) The commissioner by rule shall establish methods by
which consumers and service recipients are notified of the name,
mailing address, and telephone number of the commission for
directing complaints to the commission.
Sec. 531.410. PUBLIC ACCESS AND TESTIMONY. The
commissioner shall develop and implement policies that provide the
public with a reasonable opportunity to appear before the council
or commissioner and to speak on any issue under the jurisdiction of
the commission.
Sec. 531.411. POLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commissioner, with the advice of the
council, shall develop and the commission shall implement policies
that clearly delineate the policymaking responsibilities of the
commissioner from the management responsibilities of the
commission and the staff of the commission.
[Sections 531.412-531.420 reserved for expansion]
SUBCHAPTER L. COUNCIL FOR THE BLIND, DEAF, AND HARD OF HEARING
Sec. 531.421. DEFINITION. In this subchapter, "council"
means the Council for the Blind, Deaf, and Hard of Hearing.
Sec. 531.422. COUNCIL FOR THE BLIND, DEAF, AND HARD OF
HEARING. (a) The Council for the Blind, Deaf, and Hard of Hearing
is created to advise the commissioner and the offices for the blind
and for the deaf and hard of hearing regarding programs and services
for those populations.
(b) The council is composed of nine members of the public
appointed by the governor. To be eligible for appointment to the
council, a person must have demonstrated an interest in and
knowledge of problems and available services for persons who are
blind, deaf, or hard of hearing.
(c) Chapter 551 applies to the council.
(d) Chapter 2110 does not apply to the council.
Sec. 531.423. APPOINTMENTS. (a) Appointments to the
council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees.
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Sec. 531.424. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A
person who is appointed as a member of the council may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the council until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the commission and
the council;
(2) the programs operated by the commission;
(3) the role and functions of the commission and the
council, including detailed information regarding the advisory
responsibilities of the council;
(4) the rules of the commissioner applicable to the
commission, with an emphasis on the rules that relate to
disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the
commission;
(7) the requirements of:
(A) the open meetings law, Chapter 551;
(B) the public information law, Chapter 552;
(C) the administrative procedure law, Chapter
2001; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commissioner or the Texas Ethics Commission.
Sec. 531.425. TERMS. (a) Council members serve for
staggered six-year terms with the terms of three members expiring
February 1 of each odd-numbered year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
Sec. 531.426. VACANCY. The governor by appointment shall
fill the unexpired term of a vacancy on the council.
Sec. 531.427. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS.
(a) The governor shall designate a member of the council as the
presiding officer to serve in that capacity at the pleasure of the
governor.
(b) The members of the council shall elect any other
necessary officers.
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 531.428. REIMBURSEMENT FOR EXPENSES. A council member
may not receive compensation for service as a member of the council
but is entitled to reimbursement for travel expenses incurred by
the member while conducting the business of the council as provided
by the General Appropriations Act.
Sec. 531.429. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The commissioner, with the advice of the council, shall prepare
information of public interest describing the functions of the
commission and the procedures by which complaints are filed with
and resolved by the commission. The commission shall make the
information available to the public and appropriate state
governmental entities.
(b) The commissioner by rule shall establish methods by
which consumers and service recipients are notified of the name,
mailing address, and telephone number of the commission for
directing complaints to the commission.
Sec. 531.430. PUBLIC ACCESS AND TESTIMONY. The
commissioner shall develop and implement policies that provide the
public with a reasonable opportunity to appear before the council
or commissioner and to speak on any issue under the jurisdiction of
the commission.
Sec. 531.431. POLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commissioner, with the advice of the
council, shall develop and the commission shall implement policies
that clearly delineate the policymaking responsibilities of the
commissioner from the management responsibilities of the
commission and the staff of the commission.
[Sections 531.432-531.440 reserved for expansion]
SUBCHAPTER M. REHABILITATION COUNCIL
Sec. 531.441. DEFINITION. In this subchapter, "council"
means the Rehabilitation Council.
Sec. 531.442. REHABILITATION COUNCIL. (a) The
Rehabilitation Council is created to advise the commissioner and
the office of rehabilitation services regarding programs and
services for persons with disabilities other than developmental
delay and mental retardation.
(b) The council is composed of nine members of the public
appointed by the governor. To be eligible for appointment to the
council, a person must have demonstrated an interest in and
knowledge of problems and available services related to the child
health plan program, the financial assistance program under Chapter
31, Human Resources Code, the medical assistance program under
Chapter 32, Human Resources Code, or the nutritional assistance
programs under Chapter 33, Human Resources Code.
(c) Chapter 551 applies to the council.
(d) Chapter 2110 does not apply to the council.
Sec. 531.443. APPOINTMENTS. (a) Appointments to the
council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees.
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Sec. 531.444. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A
person who is appointed as a member of the council may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the council until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the commission and
the council;
(2) the programs operated by the commission;
(3) the role and functions of the commission and the
council, including detailed information regarding the advisory
responsibilities of the council;
(4) the rules of the commissioner applicable to the
commission, with an emphasis on the rules that relate to
disciplinary and investigatory authority;
(5) the current budget for the commission;
(6) the results of the most recent formal audit of the
commission;
(7) the requirements of:
(A) the open meetings law, Chapter 551;
(B) the public information law, Chapter 552;
(C) the administrative procedure law, Chapter
2001; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commissioner or the Texas Ethics Commission.
Sec. 531.445. TERMS. (a) Council members serve for
staggered six-year terms with the terms of three members expiring
February 1 of each odd-numbered year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
Sec. 531.446. VACANCY. The governor by appointment shall
fill the unexpired term of a vacancy on the council.
Sec. 531.447. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS.
(a) The governor shall designate a member of the council as the
presiding officer to serve in that capacity at the pleasure of the
governor.
(b) The members of the council shall elect any other
necessary officers.
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 531.448. REIMBURSEMENT FOR EXPENSES. A council member
may not receive compensation for service as a member of the council
but is entitled to reimbursement for travel expenses incurred by
the member while conducting the business of the council as provided
by the General Appropriations Act.
Sec. 531.449. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The commissioner, with the advice of the council, shall prepare
information of public interest describing the functions of the
commission and the procedures by which complaints are filed with
and resolved by the commission. The commission shall make the
information available to the public and appropriate state
governmental entities.
(b) The commissioner by rule shall establish methods by
which consumers and service recipients are notified of the name,
mailing address, and telephone number of the commission for
directing complaints to the commission.
Sec. 531.450. PUBLIC ACCESS AND TESTIMONY. The
commissioner shall develop and implement policies that provide the
public with a reasonable opportunity to appear before the council
or commissioner and to speak on any issue under the jurisdiction of
the commission.
Sec. 531.451. POLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commissioner, with the advice of the
council, shall develop and the commission shall implement policies
that clearly delineate the policymaking responsibilities of the
commissioner from the management responsibilities of the
commission and the staff of the commission.
SECTION 1.09. The Health and Safety Code is amended by
adding Title 12 to read as follows:
TITLE 12. HEALTH AND MENTAL HEALTH
CHAPTER 1001. DEPARTMENT OF HEALTH SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 1001.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Commissioner" means the commissioner of health
services.
(3) "Council" means the Health Services Council.
(4) "Department" means the Department of Health
Services.
Sec. 1001.002. AGENCY. The department is an agency of the
state.
Sec. 1001.003. SUNSET PROVISION. The department is subject
to Chapter 325, Government Code (Texas Sunset Act). Unless
continued in existence as provided by that chapter, the department
is abolished and this chapter expires September 1, 2009.
[Sections 1001.004-1001.020 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 1001.021. HEALTH SERVICES COUNCIL. (a) The Health
Services Council is created to assist the commissioner of health
and human services in developing rules and policies for the
department.
(b) The council is composed of nine members of the public
appointed by the governor with the advice and consent of the senate.
To be eligible for appointment to the council, a person must have
demonstrated an interest in and knowledge of problems and available
services related to public health, mental health, substance abuse,
or early childhood intervention services.
(c) The council shall study and make recommendations to the
commissioner of health and human services regarding the management
and operation of the department, including policies and rules
governing the delivery of services to persons who are served by the
department and the rights and duties of persons who are served or
regulated by the department.
(d) Chapter 551, Government Code, applies to the council.
(e) Chapter 2110, Government Code, does not apply to the
council.
(f) A majority of the members of the council constitute a
quorum for the transaction of business.
Sec. 1001.022. APPOINTMENTS. (a) Appointments to the
council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees.
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Notwithstanding Subsection (a), appointments to the council must
reflect the ethnic diversity of this state.
Sec. 1001.023. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A
person who is appointed as a member of the council may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the council until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the department and
the council;
(2) the programs operated by the department;
(3) the role and functions of the department and the
council, including detailed information regarding:
(A) the division of authority and of
responsibility between the commissioner and the commissioner of
health and human services; and
(B) the advisory responsibilities of the
council;
(4) the rules of the commissioner of health and human
services applicable to the department, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the department;
(6) the results of the most recent formal audit of the
department;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commissioner of health and human services or the Texas Ethics
Commission.
Sec. 1001.024. TERMS. (a) Council members serve for
staggered six-year terms with the terms of three members expiring
February 1 of each odd-numbered year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
Sec. 1001.025. VACANCY. The governor by appointment shall
fill the unexpired term of a vacancy on the council.
Sec. 1001.026. PRESIDING OFFICER; OTHER OFFICERS;
MEETINGS. (a) The governor shall designate a member of the council
as the presiding officer to serve in that capacity at the pleasure
of the governor.
(b) The members of the council shall elect any other
necessary officers.
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 1001.027. REIMBURSEMENT FOR EXPENSES. A council
member may not receive compensation for service as a member of the
council but is entitled to reimbursement for travel expenses
incurred by the member while conducting the business of the council
as provided by the General Appropriations Act.
Sec. 1001.028. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The commissioner of health and human services, with the advice
of the council, shall prepare information of public interest
describing the functions of the department and the procedures by
which complaints are filed with and resolved by the department. The
commission shall make the information available to the public and
appropriate state governmental entities.
(b) The commissioner of health and human services by rule
shall establish methods by which consumers and service recipients
are notified of the name, mailing address, and telephone number of
the department for directing complaints to the department.
Sec. 1001.029. PUBLIC ACCESS AND TESTIMONY. (a) The
commissioner of health and human services shall develop and
implement policies that provide the public with a reasonable
opportunity to appear before the commission or the commissioner of
health and human services and to speak on any issue under the
jurisdiction of the department.
(b) The commissioner of health and human services shall
grant an opportunity for a public hearing before the council makes
recommendations to the commissioner of health and human services
regarding a substantive rule if a public hearing is requested by:
(1) at least 25 persons;
(2) a governmental entity; or
(3) an association with at least 25 members.
(c) The commissioner of health and human services shall
consider fully all written and oral submissions about a proposed
rule.
Sec. 1001.030. POLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commissioner of health and human services,
with the advice of the council, shall develop and the department
shall implement policies that clearly delineate the policymaking
responsibilities of the commissioner of health and human services
from the management responsibilities of the commission, the
commissioner, and the staff of the department.
Sec. 1001.031. ANNUAL REPORT. (a) The commissioner shall
file annually with the governor, the presiding officer of each
house of the legislature, and the commissioner of health and human
services a complete and detailed written report accounting for all
funds received and disbursed by the department during the preceding
fiscal year.
(b) The annual report must be in the form and be reported in
the time provided by the General Appropriations Act.
Sec. 1001.032. OFFICES. The department shall maintain its
central office in Austin. The department may maintain offices in
other areas of the state as necessary.
[Sections 1001.033-1001.050 reserved for expansion]
SUBCHAPTER C. PERSONNEL
Sec. 1001.051. COMMISSIONER. (a) The governor shall
appoint a commissioner of the department. The commissioner is to be
selected according to education, training, experience, and
demonstrated ability.
(b) The commissioner serves for a term of one year.
(c) Subject to the control of the commissioner of health and
human services, the commissioner shall act as the department's
chief administrative officer and as a liaison between the
department and commission.
(d) The commissioner shall administer this chapter under
operational policies established by the commissioner of health and
human services and in accordance with the memorandum of
understanding under Section 531.0055(k), Government Code, between
the commissioner and the commissioner of health and human services,
as adopted by rule.
Sec. 1001.052. PERSONNEL. (a) The department may employ,
compensate, and prescribe the duties of personnel necessary and
suitable to administer this chapter.
(b) The commissioner of health and human services shall
prepare and by rule adopt personnel standards.
(c) A personnel position may be filled only by an individual
selected and appointed on a nonpartisan merit basis.
(d) The commissioner of health and human services, with the
advice of the council, shall develop and the department shall
implement policies that clearly define the responsibilities of the
staff of the department.
Sec. 1001.053. INFORMATION ABOUT QUALIFICATIONS AND
STANDARDS OF CONDUCT. The commissioner or the commissioner's
designee shall provide to department employees, as often as
necessary, information regarding the requirements for employment
under this chapter or rules adopted by the commissioner of health
and human services, including information regarding a person's
responsibilities under applicable laws relating to standards of
conduct for state employees.
Sec. 1001.054. MERIT PAY. Subject to rules adopted by the
commissioner of health and human services, the commissioner or the
commissioner's designee shall develop a system of annual
performance evaluations. All merit pay for department employees
must be given under the system established under this section or
under rules adopted by the commissioner of health and human
services.
Sec. 1001.055. CAREER LADDER. The commissioner or the
commissioner's designee shall develop an intra-agency career
ladder program. The program must require intra-agency postings of
all nonentry-level positions concurrently with any public posting.
Sec. 1001.056. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a)
Subject to rules adopted by the commissioner of health and human
services, the commissioner or the commissioner's designee shall
prepare and maintain a written policy statement that implements a
program of equal employment opportunity to ensure that all
personnel decisions are made without regard to race, color,
disability, sex, religion, age, or national origin.
(b) Unless the following are included in a policy statement
adopted by the commissioner of health and human services that is
applicable to the department, the policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the department to avoid the
unlawful employment practices described by Chapter 21, Labor Code;
and
(2) an analysis of the extent to which the composition
of the department's personnel is in accordance with state and
federal law and a description of reasonable methods to achieve
compliance with state and federal law.
(c) The policy statement must be:
(1) updated annually;
(2) reviewed by the state Commission on Human Rights
for compliance with Subsection (b)(1); and
(3) filed with the governor's office.
Sec. 1001.057. STATE EMPLOYEE INCENTIVE PROGRAM. The
commissioner or the commissioner's designee shall provide to
department employees information and training on the benefits and
methods of participation in the state employee incentive program.
[Sections 1001.058-1001.070 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF DEPARTMENT
Sec. 1001.071. GENERAL POWERS AND DUTIES OF DEPARTMENT
RELATED TO HEALTH CARE. The department is responsible for
administering human services programs regarding the public health,
including:
(1) implementing the state's public health care
delivery programs under the authority of the department;
(2) administering state health facilities, hospitals,
and health care systems;
(3) developing and providing health care services, as
directed by law;
(4) providing for the prevention and control of
communicable diseases;
(5) providing public education on health-related
matters, as directed by law;
(6) compiling and reporting health-related
information, as directed by law;
(7) acting as the lead agency for implementation of
state policies regarding the human immunodeficiency virus and
acquired immunodeficiency syndrome and administering programs
related to the human immunodeficiency virus and acquired
immunodeficiency syndrome;
(8) investigating the causes of injuries and methods
of prevention;
(9) administering a grant program to provide
appropriated money to counties, municipalities, public health
districts, and other political subdivisions for their use to
provide or pay for essential public health services;
(10) administering the registration of vital
statistics;
(11) licensing, inspecting, and enforcing regulations
regarding health facilities, other than long-term care facilities
regulated by the Department of Supportive Services;
(12) implementing established standards and
procedures for the management and control of sanitation and for
health protection measures;
(13) enforcing regulations regarding radioactive
materials;
(14) enforcing regulations regarding food, bottled
and vended drinking water, drugs, cosmetics, and health devices;
(15) enforcing regulations regarding food service
establishments, retail food stores, mobile food units, and roadside
food vendors; and
(16) enforcing regulations controlling hazardous
substances in households and workplaces.
Sec. 1001.072. GENERAL POWERS AND DUTIES OF DEPARTMENT
RELATED TO MENTAL HEALTH. The department is responsible for
administering human services programs regarding mental health,
including:
(1) administering and coordinating mental health
services at the local and state level;
(2) operating the state's mental health facilities;
and
(3) inspecting, licensing, and enforcing regulations
regarding mental health facilities, other than long-term care
facilities regulated by the Department of Supportive Services.
Sec. 1001.073. GENERAL POWERS AND DUTIES OF DEPARTMENT
RELATED TO SUBSTANCE ABUSE. The department is responsible for
administering human services programs regarding substance abuse,
including:
(1) administering and coordinating substance abuse
prevention and treatment programs at the state and local level;
(2) inspecting, licensing, and enforcing regulations
regarding substance abuse treatment facilities; and
(3) providing public education on substance abuse
issues, as directed by law.
Sec. 1001.074. INFORMATION REGARDING COMPLAINTS. (a) The
department shall maintain a file on each written complaint filed
with the department. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
department;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the department closed the file without taking action other than
to investigate the complaint.
(b) The department shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the commissioner of health and human services' and the
department's policies and procedures relating to complaint
investigation and resolution.
(c) The department, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
Sec. 1001.075. RULES. The commissioner of health and human
services may adopt rules reasonably necessary for the department to
administer this chapter, consistent with the memorandum of
understanding under Section 531.0055(k), Government Code, between
the commissioner and the commissioner of health and human services,
as adopted by rule.
SECTION 1.10. Section 40.001, Human Resources Code, is
amended by adding Subdivision (2-a) and amending Subdivision (4) to
read as follows:
(2-a) "Council" means the Protective Services
Council.
(4) "Commissioner" ["Executive director"] means the
commissioner [executive director] of the Department of Protective
[and Regulatory] Services.
SECTION 1.11. Section 40.002, Human Resources Code, is
amended to read as follows:
Sec. 40.002. DEPARTMENT OF PROTECTIVE [AND REGULATORY]
SERVICES; GENERAL DUTIES OF DEPARTMENT [RESPONSIBILITY]. (a) The
Department of Protective [and Regulatory] Services is composed of
the council [board], the commissioner [executive director], an
administrative staff, and other officers and employees necessary to
efficiently carry out the purposes of this chapter.
(b) Notwithstanding any other law, the [The] department
shall [is the state agency with primary responsibility for]:
(1) provide [providing] protective services for
children and elderly and disabled persons, including
investigations of alleged abuse, neglect, or exploitation in
facilities of the Texas Department of Mental Health and Mental
Retardation or its successor agency;
(2) provide [providing] family support and family
preservation services that [which] respect the fundamental right of
parents to control the education and upbringing of their children;
(3) license, register, and enforce regulations
applicable to [regulating] child-care facilities and child-care
administrators; [and]
(4) implement [implementing] and manage [managing]
programs intended to provide early intervention or prevent at-risk
behaviors that lead to child abuse, delinquency, running away,
truancy, and dropping out of school; and
(5) investigate allegations of abuse or neglect of
persons residing in long-term care facilities.
(c) The department is the state agency designated to
cooperate with the federal government in the administration of
programs under:
(1) Parts B and E, Title IV, federal Social Security
Act (42 U.S.C. Sections 620 et seq. and 670 et seq.); and
(2) other federal law for which the department has
administrative responsibility.
(d) The department shall cooperate with the United States
Department of Health and Human Services and other federal and state
agencies in a reasonable manner and in conformity with the
provisions of federal law and this subtitle to the extent necessary
to qualify for federal assistance in the delivery of services.
(e) If the department determines that a provision of state
law governing the department conflicts with a provision of federal
law, the commissioner [department] may adopt policies and rules
necessary to allow the state to receive and spend federal matching
funds to the fullest extent possible in accordance with the federal
statutes, this subtitle, and the state constitution and within the
limits of appropriated funds.
SECTION 1.12. Sections 40.004, 40.021, 40.022, 40.0226,
40.024, 40.025, 40.026, and 40.027, Human Resources Code, are
amended to read as follows:
Sec. 40.004. PUBLIC INTEREST INFORMATION AND PUBLIC ACCESS.
(a) The commissioner [board] shall develop and implement policies
that provide the public with a reasonable opportunity to appear
before the commission or commissioner [board] and to speak on any
issue under the jurisdiction of the department.
(b) The commissioner, with the advice of the council,
[department] shall prepare information of public interest
describing the functions of the department. The commission
[department] shall make the information available to the public and
appropriate state agencies.
(c) The commissioner shall grant an opportunity for a public
hearing before the council makes recommendations to the
commissioner regarding a substantive rule if a public hearing is
requested by:
(1) at least 25 persons;
(2) a governmental entity; or
(3) an association with at least 25 members.
(d) The commissioner shall consider fully all written and
oral submissions about a proposed rule.
Sec. 40.021. [BOARD OF] PROTECTIVE [AND REGULATORY]
SERVICES COUNCIL. (a) The Protective Services Council is created
to assist the commissioner in developing rules and policies for the
department [board is composed of six members appointed by the
governor with the advice and consent of the senate. The governor
shall designate one member to be the presiding officer of the board
to serve in that capacity at the pleasure of the governor].
(b) The council is composed of nine members of the public
appointed by the governor with the advice and consent of the senate.
To be eligible for appointment to the council, a person must have
demonstrated an interest in and knowledge of problems and available
services related to the functions of the department. [Four members
of the board must have a demonstrated interest in the services
provided by the department, and two members must represent the
public.]
(c) The council shall study and make recommendations to the
commissioner regarding the management and operation of the
department, including policies and rules governing the delivery of
services to persons who are served by the department and the rights
and duties of persons who are served or regulated by the department.
(d) Chapter 551, Government Code, applies to the council.
(e) Chapter 2110, Government Code, does not apply to the
council [board shall be appointed without regard to race, color,
disability, sex, religion, age, or national origin].
(f) A majority of the members of the council constitute a
quorum for the transaction of business.
Sec. 40.022. APPOINTMENTS [RESTRICTIONS ON BOARD
APPOINTMENT OR MEMBERSHIP]. (a) Appointments to the council shall
be made without regard to the race, color, disability, sex,
religion, age, or national origin of the appointees. [A person is
not eligible for appointment as a member of the board if the person
or the person's spouse:
[(1) is a person who is employed by or participates in
the management of a business entity or other organization regulated
by the department or receiving funds from the department;
[(2) owns or controls, directly or indirectly, more
than a 10 percent interest in a business entity or other
organization that is regulated by the department or that receives
funds from the department;
[(3) uses or receives a substantial amount of tangible
goods, services, or money from the department, other than
compensation or reimbursement authorized by law for board
membership, attendance, or expenses, or as a client or a parent or
guardian of a client receiving services from the department; or
[(4) is an employee, officer, or paid consultant of a
trade association in a field under the jurisdiction of the
department.]
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Notwithstanding Subsection (a), appointments to the council must
reflect the ethnic diversity of this state. [In addition to the
requirements of Subsection (a), a person is not eligible for
appointment as a public member of the board if the person or the
person's spouse is registered, certified, or licensed by an
occupational regulatory agency in a field under the jurisdiction of
the department.]
Sec. 40.0226. [BOARD MEMBER] TRAINING PROGRAM FOR COUNCIL
MEMBERS. (a) A person who is appointed as a member of the council
may not vote, deliberate, or be counted as a member in attendance at
a meeting of the council until the person completes a training
program that complies with [Before a member of the board may assume
the member's duties and before the member may be confirmed by the
senate, the member must complete at least one course of the training
program established under] this section.
(b) The [A] training program must [established under this
section shall] provide information to the member regarding:
(1) the [enabling] legislation that created the
department and the council [board];
(2) the programs operated by the department;
(3) the role and functions of the department and the
council, including detailed information regarding:
(A) the division of authority and of
responsibility between the commissioner and the commissioner of
health and human services; and
(B) the advisory responsibilities of the
council;
(4) the rules of the commissioner applicable to the
department, with an emphasis on the rules that relate to
disciplinary and investigatory authority;
(5) the current budget for the department;
(6) the results of the most recent formal audit of the
department;
(7) the requirements of the:
(A) open meetings law, Chapter 551, Government
Code;
(B) public information [open records] law,
Chapter 552, Government Code; and
(C) administrative procedure law, Chapter 2001,
Government Code;
(8) the requirements of the conflict-of-interest laws
and other laws relating to public officials; and
(9) any applicable ethics policies adopted by the
commissioner [board] or the Texas Ethics Commission.
Sec. 40.024. [BOARD] TERMS; VACANCY. (a) Members of the
council [board] serve for staggered six-year terms, with the terms
of three [two] members expiring February 1 of each odd-numbered
year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
(c) The governor by appointment shall fill the unexpired
term of a vacancy on the council.
Sec. 40.025. REIMBURSEMENT FOR EXPENSES [BOARD PER DIEM].
A council member may not receive compensation for service as a
member of the council but is entitled to reimbursement for travel
expenses incurred by the member while conducting the business of
the council as provided [While performing their duties, board
members are entitled to a per diem as prescribed] by the General
Appropriations Act.
Sec. 40.026. PRESIDING OFFICER; OTHER OFFICERS; [BOARD]
MEETINGS[; QUORUM]. (a) The governor shall designate a member of
the council as the presiding officer to serve in that capacity at
the pleasure of the governor [board shall meet at least quarterly
and at the call of the presiding officer].
(b) The members of the council shall elect any other
necessary officers [Four members of the board constitute a quorum].
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 40.027. COMMISSIONER [EXECUTIVE DIRECTOR]. (a) The
governor [commissioner of health and human services] shall appoint
a commissioner, who is to be selected according to education,
training, experience, and demonstrated ability [employ the
executive director in accordance with Section 531.0056, Government
Code].
(b) The commissioner serves for a term of one year.
(c) Subject to the control of the commissioner of health and
human services, the commissioner shall act as the department's
chief administrative officer and as a liaison between the
department and commission.
(d) The commissioner shall administer this chapter and
other laws relating to the department under operational policies
established [executive director is the executive head of the
department. The executive director shall perform the duties
assigned] by the commissioner and in accordance with the memorandum
of understanding under Section 531.0055(k), Government Code,
between the commissioner and the commissioner of health and human
services, as adopted by rule [of health and human services and state
law].
SECTION 1.13. The Human Resources Code is amended by adding
Title 11 to read as follows:
TITLE 11. COMMUNITY-BASED AND LONG-TERM CARE SERVICES
CHAPTER 161. DEPARTMENT OF SUPPORTIVE SERVICES
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 161.001. DEFINITIONS. In this chapter:
(1) "Commission" means the Health and Human Services
Commission.
(2) "Commissioner" means the commissioner of
supportive services.
(3) "Council" means the Supportive Services Council.
(4) "Department" means the Department of Supportive
Services.
Sec. 161.002. AGENCY. The department is an agency of the
state.
Sec. 161.003. SUNSET PROVISION. The department is subject
to Chapter 325, Government Code (Texas Sunset Act). Unless
continued in existence as provided by that chapter, the department
is abolished and this chapter expires September 1, 2009.
[Sections 161.004-161.020 reserved for expansion]
SUBCHAPTER B. ADMINISTRATIVE PROVISIONS
Sec. 161.021. SUPPORTIVE SERVICES COUNCIL. (a) The
Supportive Services Council is created to assist the commissioner
of health and human services in developing rules and policies for
the department.
(b) The council is composed of nine members of the public
appointed by the governor with the advice and consent of the senate.
To be eligible for appointment to the council, a person must have
demonstrated an interest in and knowledge of problems and available
services related to the aging and persons with developmental
disabilities or mental retardation.
(c) The council shall study and make recommendations to the
commissioner of health and human services regarding the management
and operation of the department, including policies and rules
governing the delivery of services to persons who are served by the
department and the rights and duties of persons who are served or
regulated by the department.
(d) Chapter 551, Government Code, applies to the council.
(e) Chapter 2110, Government Code, does not apply to the
council.
(f) A majority of the members of the council constitute a
quorum for the transaction of business.
Sec. 161.022. APPOINTMENTS. (a) Appointments to the
council shall be made without regard to the race, color,
disability, sex, religion, age, or national origin of the
appointees.
(b) Appointments to the council shall be made so that each
geographic area of the state is represented on the council.
Notwithstanding Subsection (a), appointments to the council must
reflect the ethnic diversity of this state.
Sec. 161.023. TRAINING PROGRAM FOR COUNCIL MEMBERS. (a) A
person who is appointed as a member of the council may not vote,
deliberate, or be counted as a member in attendance at a meeting of
the council until the person completes a training program that
complies with this section.
(b) The training program must provide the person with
information regarding:
(1) the legislation that created the department and
the council;
(2) the programs operated by the department;
(3) the role and functions of the department and the
council, including detailed information regarding:
(A) the division of authority and of
responsibility between the commissioner and the commissioner of
health and human services; and
(B) the advisory responsibilities of the
council;
(4) the rules of the commissioner of health and human
services applicable to the department, with an emphasis on the
rules that relate to disciplinary and investigatory authority;
(5) the current budget for the department;
(6) the results of the most recent formal audit of the
department;
(7) the requirements of:
(A) the open meetings law, Chapter 551,
Government Code;
(B) the public information law, Chapter 552,
Government Code;
(C) the administrative procedure law, Chapter
2001, Government Code; and
(D) other laws relating to public officials,
including conflict-of-interest laws; and
(8) any applicable ethics policies adopted by the
commissioner of health and human services or the Texas Ethics
Commission.
Sec. 161.024. TERMS. (a) Council members serve for
staggered six-year terms with the terms of three members expiring
February 1 of each odd-numbered year.
(b) A member of the council may not serve more than two
consecutive full terms as a council member.
Sec. 161.025. VACANCY. The governor by appointment shall
fill the unexpired term of a vacancy on the council.
Sec. 161.026. PRESIDING OFFICER; OTHER OFFICERS; MEETINGS.
(a) The governor shall designate a member of the council as the
presiding officer to serve in that capacity at the pleasure of the
governor.
(b) The members of the council shall elect any other
necessary officers.
(c) The council shall meet quarterly and at other times at
the call of the presiding officer. The council may hold meetings in
different areas of the state.
Sec. 161.027. REIMBURSEMENT FOR EXPENSES. A council member
may not receive compensation for service as a member of the council
but is entitled to reimbursement for travel expenses incurred by
the member while conducting the business of the council as provided
by the General Appropriations Act.
Sec. 161.028. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
(a) The commissioner of health and human services, with the advice
of the council, shall prepare information of public interest
describing the functions of the department and the procedures by
which complaints are filed with and resolved by the department. The
commission shall make the information available to the public and
appropriate state governmental entities.
(b) The commissioner of health and human services by rule
shall establish methods by which consumers and service recipients
are notified of the name, mailing address, and telephone number of
the department for directing complaints to the department.
Sec. 161.029. PUBLIC ACCESS AND TESTIMONY. (a) The
commissioner of health and human services shall develop and
implement policies that provide the public with a reasonable
opportunity to appear before the commission or the commissioner of
health and human services and to speak on any issue under the
jurisdiction of the department.
(b) The commissioner shall grant an opportunity for a public
hearing before the council makes recommendations to the
commissioner regarding a substantive rule if a public hearing is
requested by:
(1) at least 25 persons;
(2) a governmental entity; or
(3) an association with at least 25 members.
(c) The commissioner shall consider fully all written and
oral submissions about a proposed rule.
Sec. 161.030. POLICYMAKING AND MANAGEMENT
RESPONSIBILITIES. The commissioner of health and human services,
with the advice of the council, shall develop and the department
shall implement policies that clearly delineate the policymaking
responsibilities of the commissioner of health and human services
from the management responsibilities of the commission, the
commissioner, and the staff of the department.
Sec. 161.031. ANNUAL REPORT. (a) The commissioner shall
file annually with the governor, the presiding officer of each
house of the legislature, and the commissioner of health and human
services a complete and detailed written report accounting for all
funds received and disbursed by the department during the preceding
fiscal year.
(b) The annual report must be in the form and be reported in
the time provided by the General Appropriations Act.
Sec. 161.032. OFFICES. The department shall maintain its
central office in Austin. The department may maintain offices in
other areas of the state as necessary.
[Sections 161.033-161.050 reserved for expansion]
SUBCHAPTER C. PERSONNEL
Sec. 161.051. COMMISSIONER. (a) The governor shall
appoint a commissioner of the department. The commissioner is to be
selected according to education, training, experience, and
demonstrated ability.
(b) The commissioner serves for a term of one year.
(c) Subject to the control of the commissioner of health and
human services, the commissioner shall act as the department's
chief administrative officer and as a liaison between the
department and commission.
(d) The commissioner shall administer this chapter under
operational policies established by the commissioner of health and
human services and in accordance with the memorandum of
understanding under Section 531.0055(k), Government Code, between
the commissioner and the commissioner of health and human services,
as adopted by rule.
Sec. 161.052. PERSONNEL. (a) The department may employ,
compensate, and prescribe the duties of personnel necessary and
suitable to administer this chapter.
(b) The commissioner of health and human services shall
prepare and by rule adopt personnel standards.
(c) A personnel position may be filled only by an individual
selected and appointed on a nonpartisan merit basis.
(d) The commissioner of health and human services, with the
advice of the council, shall develop and the department shall
implement policies that clearly define the responsibilities of the
staff of the department.
Sec. 161.053. INFORMATION ABOUT QUALIFICATIONS AND
STANDARDS OF CONDUCT. The commissioner or the commissioner's
designee shall provide to department employees, as often as
necessary, information regarding the requirements for employment
under this chapter or rules adopted by the commissioner of health
and human services, including information regarding a person's
responsibilities under applicable laws relating to standards of
conduct for state employees.
Sec. 161.054. MERIT PAY. Subject to rules adopted by the
commissioner of health and human services, the commissioner or the
commissioner's designee shall develop a system of annual
performance evaluations. All merit pay for department employees
must be given under the system established under this section or
under rules adopted by the commissioner of health and human
services.
Sec. 161.055. CAREER LADDER. The commissioner or the
commissioner's designee shall develop an intra-agency career
ladder program. The program must require intra-agency postings of
all nonentry-level positions concurrently with any public posting.
Sec. 161.056. EQUAL EMPLOYMENT OPPORTUNITY POLICY. (a)
Subject to rules adopted by the commissioner of health and human
services, the commissioner or the commissioner's designee shall
prepare and maintain a written policy statement that implements a
program of equal employment opportunity to ensure that all
personnel decisions are made without regard to race, color,
disability, sex, religion, age, or national origin.
(b) Unless the following are included in a policy statement
adopted by the commissioner of health and human services that is
applicable to the department, the policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the department to avoid the
unlawful employment practices described by Chapter 21, Labor Code;
and
(2) an analysis of the extent to which the composition
of the department's personnel is in accordance with state and
federal law and a description of reasonable methods to achieve
compliance with state and federal law.
(c) The policy statement must be:
(1) updated annually;
(2) reviewed by the state Commission on Human Rights
for compliance with Subsection (b)(1); and
(3) filed with the governor's office.
Sec. 161.057. STATE EMPLOYEE INCENTIVE PROGRAM. The
commissioner or the commissioner's designee shall provide to
department employees information and training on the benefits and
methods of participation in the state employee incentive program.
[Sections 161.058-161.070 reserved for expansion]
SUBCHAPTER D. POWERS AND DUTIES OF DEPARTMENT
Sec. 161.071. GENERAL POWERS AND DUTIES OF DEPARTMENT. The
department is responsible for administering human services
programs for the aging and disabled, including:
(1) administering and coordinating programs to
provide community-based care and support services to promote
independent living for populations that would otherwise be
institutionalized;
(2) providing institutional care services, including
services through convalescent and nursing homes and related
institutions under Chapter 242, Health and Safety Code;
(3) providing and coordinating programs and services
for persons with disabilities, including programs for the
treatment, rehabilitation, or benefit of persons with
developmental disabilities or mental retardation;
(4) operating state facilities for the housing,
treatment, rehabilitation, or benefit of persons with
disabilities, including state schools for persons with mental
retardation;
(5) serving as the state unit on aging required by the
federal Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.)
and its subsequent amendments, including performing the general
functions under Section 101.022 to ensure:
(A) implementation of the federal Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and its
subsequent amendments, including implementation of services and
volunteer opportunities under that Act for older residents of this
state through area agencies on aging;
(B) advocacy for residents of nursing facilities
through the office of the state long-term care ombudsman;
(C) fostering of the state and community
infrastructure and capacity to serve older residents of this state;
and
(D) availability of a comprehensive resource for
state government and the public on trends related to and services
and programs for an aging population;
(6) performing all licensing and enforcement
activities and functions related to long-term care facilities,
including licensing and enforcement activities related to
convalescent and nursing homes and related institutions under
Chapter 242, Health and Safety Code; and
(7) performing all licensing and enforcement
activities and functions related to home and community support
services agencies under Chapter 142, Health and Safety Code.
Sec. 161.072. INFORMATION REGARDING COMPLAINTS. (a) The
department shall maintain a file on each written complaint filed
with the department. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the
department;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the department closed the file without taking action other than
to investigate the complaint.
(b) The department shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the commissioner of health and human services' and the
department's policies and procedures relating to complaint
investigation and resolution.
(c) The department, at least quarterly until final
disposition of the complaint, shall notify the person filing the
complaint and each person who is a subject of the complaint of the
status of the investigation unless the notice would jeopardize an
undercover investigation.
Sec. 161.073. RULES. The commissioner of health and human
services may adopt rules reasonably necessary for the department to
administer this chapter, consistent with the memorandum of
understanding under Section 531.0055(k), Government Code, between
the commissioner and the commissioner of health and human services,
as adopted by rule.
SECTION 1.14. APPOINTMENT OF COMMISSIONERS. (a) As soon as
possible, the governor shall appoint the commissioners of:
(1) the Department of Health Services in accordance
with Chapter 1001, Health and Safety Code, as added by this article;
(2) the Department of Protective Services in
accordance with Chapter 40, Human Resources Code, as amended by
this article; and
(3) the Department of Supportive Services in
accordance with Chapter 161, Human Resources Code, as added by this
article.
(b) The governor shall make the appointments of the
commissioners required by this section so that the ethnic diversity
of this state is reflected in those appointments.
SECTION 1.15. APPOINTMENTS OF COUNCIL MEMBERS. (a) As soon
as possible, the governor shall appoint the members of the Health
Services Council in accordance with Chapter 1001, Health and Safety
Code, as added by this article. In making the initial appointments,
the governor shall designate three members for terms expiring
February 1, 2005, three members for terms expiring February 1,
2007, and three members for terms expiring February 1, 2009.
(b) As soon as possible, the governor shall appoint the
members of the Protective Services Council in accordance with
Chapter 40, Human Resources Code, as amended by this article. In
making the initial appointments, the governor shall designate three
members for terms expiring February 1, 2005, three members for
terms expiring February 1, 2007, and three members for terms
expiring February 1, 2009.
(c) As soon as possible, the governor shall appoint the
members of the Supportive Services Council in accordance with
Chapter 161, Human Resources Code, as added by this article. In
making the initial appointments, the governor shall designate three
members for terms expiring February 1, 2005, three members for
terms expiring February 1, 2007, and three members for terms
expiring February 1, 2009.
(d) As soon as possible, the governor shall appoint the
members of the Health and Human Services Council in accordance with
Chapter 531, Government Code, as amended by this article. In making
the initial appointments, the governor shall designate three
members for terms expiring February 1, 2005, three members for
terms expiring February 1, 2007, and three members for terms
expiring February 1, 2009.
SECTION 1.16. LIMITATION ON ACTIVITIES. A state agency
created under this article may, before the date specified in the
transition plan required under Section 1.23 of this article,
perform only those powers, duties, functions, programs, and
activities that relate to preparing for the transfer of powers,
duties, functions, programs, and activities to that agency in
accordance with this article. A state agency created under this
article may not operate all or any part of a health and human
services program before the date specified in the transition plan
required under Section 1.23 of this article.
SECTION 1.17. INITIAL COUNCIL MEETINGS. The presiding
officer of the council for each state agency created under this
article and the presiding officer of the Protective Services
Council shall call the initial meeting of the council as soon as
possible after the council members are appointed.
SECTION 1.18. TRANSFERS TO THE HEALTH AND HUMAN SERVICES
COMMISSION. (a) On the date specified in the transition plan
required under Section 1.23 of this article, the following powers,
duties, functions, programs, and activities are transferred to the
Health and Human Services Commission:
(1) all powers, duties, functions, programs, and
activities related to administrative support services, such as
strategic planning and evaluation, audit, legal, human resources,
information resources, accounting, purchasing, financial
management, and contract management services, of a state agency or
entity abolished by Section 1.25 of this article;
(2) all powers, duties, functions, programs, and
activities of the Texas Department of Human Services related to:
(A) determining eligibility for long-term care
services and community-based support services;
(B) the financial assistance program under
Chapter 31, Human Resources Code;
(C) the nutritional assistance programs under
Chapter 33, Human Resources Code;
(D) preventing family violence and providing
services to victims of family violence; and
(E) the Texas Department of Human Services office
of inspector general;
(3) all powers, duties, functions, programs, and
activities related to the following programs administered by a
state agency or entity abolished by Section 1.25 of this article:
(A) the state child health plan program under
Chapters 62 and 63, Health and Safety Code; and
(B) the medical assistance program under Chapter
32, Human Resources Code;
(4) all powers, duties, functions, programs, and
activities of the Texas Rehabilitation Commission;
(5) all powers, duties, functions, programs, and
activities of the Texas Commission for the Blind;
(6) all powers, duties, functions, programs, and
activities of the Texas Commission for the Deaf and Hard of Hearing;
and
(7) all rulemaking and policymaking authority for the
provision of health and human services in this state.
(b) On the date specified by Subsection (a) of this section:
(1) all obligations and contracts of a state agency or
entity abolished by Section 1.25 of this article that are related to
a power, duty, function, program, or activity transferred under
Subsection (a) of this section are transferred to the Health and
Human Services Commission;
(2) all property and records in the custody of a state
agency or entity abolished by Section 1.25 of this article that are
related to a power, duty, function, program, or activity
transferred under Subsection (a) of this section and all funds
appropriated by the legislature for the power, duty, function,
program, or activity shall be transferred to the Health and Human
Services Commission; and
(3) all complaints, investigations, or contested
cases that are pending before a state agency or entity abolished by
Section 1.25 of this article or the governing body of the agency or
entity and that are related to a power, duty, function, program, or
activity transferred under Subsection (a) of this section are
transferred without change in status to the Health and Human
Services Commission.
(c) A rule or form adopted by a state agency or entity
abolished by Section 1.25 of this article that relates to a power,
duty, function, program, or activity transferred under Subsection
(a) of this section is a rule or form of the Health and Human
Services Commission and remains in effect until altered by the
commission.
(d) A reference in law to a state agency or entity abolished
by Section 1.25 of this article, or to the governing body of the
agency or entity, that relates to a power, duty, function, program,
or activity transferred under Subsection (a) of this section means
the Health and Human Services Commission.
(e) A license, permit, or certification in effect that was
issued by a state agency or entity abolished by Section 1.25 of this
article and that relates to a power, duty, function, program, or
activity transferred under Subsection (a) of this section is
continued in effect as a license, permit, or certification of the
Health and Human Services Commission.
(f) All powers, duties, functions, programs, and activities
relating to audits, including internal audits, transferred to the
Health and Human Services Commission under Subsection (a)(1) of
this section, and all powers, duties, functions, programs, and
activities relating to the Texas Department of Human Services
office of inspector general transferred to the Health and Human
Services Commission under Subsection (a)(2)(D) of this section,
shall be assumed by the commission's office of inspector general.
Notwithstanding any other provision of law, a reference in law to
the Texas Department of Human Services office of inspector general
means the commission's office of inspector general.
SECTION 1.19. TRANSFERS TO THE DEPARTMENT OF HEALTH
SERVICES. (a) On the date specified in the transition plan
required under Section 1.23 of this article, the following powers,
duties, functions, programs, and activities, other than those
related to rulemaking or policymaking or administrative support
services such as strategic planning and evaluation, audit, legal,
human resources, information resources, accounting, purchasing,
financial management, and contract management services, are
transferred to the Department of Health Services:
(1) except as provided by Section 1.18 of this
article, all powers, duties, functions, programs, and activities of
the Texas Department of Health;
(2) all powers, duties, functions, programs, and
activities of the Texas Department of Mental Health and Mental
Retardation relating to providing mental health services;
(3) all powers, duties, functions, programs, and
activities of the Texas Commission on Alcohol and Drug Abuse;
(4) all powers, duties, functions, programs, and
activities of the Interagency Council on Early Childhood
Intervention; and
(5) all powers, duties, functions, programs, and
activities of the Texas Health Care Information Council.
(b) On the date specified by Subsection (a) of this section:
(1) all obligations and contracts of an entity listed
in Subsection (a) of this section that are related to a power, duty,
function, program, or activity transferred under that subsection
are transferred to the Department of Health Services;
(2) all property and records in the custody of an
entity listed in Subsection (a) of this section that are related to
a power, duty, function, program, or activity transferred under
that subsection and all funds appropriated by the legislature for
the power, duty, function, program, or activity shall be
transferred to the Department of Health Services; and
(3) all complaints, investigations, or contested
cases that are pending before an entity or the governing body of an
entity listed in Subsection (a) of this section and that are related
to a power, duty, function, program, or activity transferred under
that subsection are transferred without change in status to the
Department of Health Services.
(c) A rule or form adopted by an entity listed in Subsection
(a) of this section that relates to a power, duty, function,
program, or activity transferred under that subsection is a rule or
form of the Department of Health Services and remains in effect
until altered by the commissioner of health and human services.
(d) A reference in law to an entity listed in Subsection (a)
of this section that relates to a power, duty, function, program, or
activity transferred under that subsection means the Department of
Health Services. A reference in law to the governing body of an
entity listed in Subsection (a) of this section means the Health and
Human Services Commission or the commissioner of health and human
services.
(e) A license, permit, or certification in effect that was
issued by an entity listed in Subsection (a) of this section and
that relates to a power, duty, function, program, or activity
transferred under that subsection is continued in effect as a
license, permit, or certification of the Department of Health
Services.
SECTION 1.20. TRANSFERS TO THE DEPARTMENT OF PROTECTIVE
SERVICES. (a) On the date specified in the transition plan
required under Section 1.23 of this article, the following powers,
duties, functions, programs, and activities, other than those
related to rulemaking or policymaking or administrative support
services such as strategic planning and evaluation, audit, legal,
human resources, information resources, accounting, purchasing,
financial management, and contract management services, are
transferred to the Department of Protective Services:
(1) except as provided by Sections 1.18 and 1.21 of
this article, all powers, duties, functions, programs, and
activities of the Texas Department of Human Services; and
(2) all powers, duties, functions, programs, and
activities of a state agency or entity abolished by Section 1.25 of
this article related to the investigation of abuse or neglect of
persons residing in long-term care facilities.
(b) On the date specified by Subsection (a) of this section:
(1) all obligations and contracts of an entity listed
in Subsection (a) of this section that are related to a power, duty,
function, program, or activity transferred under that subsection
are transferred to the Department of Protective Services;
(2) all property and records in the custody of an
entity listed in Subsection (a) of this section that are related to
a power, duty, function, program, or activity transferred under
that subsection and all funds appropriated by the legislature for
the power, duty, function, program, or activity shall be
transferred to the Department of Protective Services; and
(3) all complaints, investigations, or contested
cases that are pending before an entity or the governing body of an
entity listed in Subsection (a) of this section and that are related
to a power, duty, function, program, or activity transferred under
that subsection are transferred without change in status to the
Department of Protective Services.
(c) A rule or form adopted by an entity listed in Subsection
(a) of this section that relates to a power, duty, function,
program, or activity transferred under that subsection is a rule or
form of the Department of Protective Services and remains in effect
until altered by the commissioner of health and human services.
(d) A reference in law to an entity listed in Subsection (a)
of this section that relates to a power, duty, function, program, or
activity transferred under that subsection means the Department of
Protective Services. A reference in law to the governing body of an
entity listed in Subsection (a) of this section means the Health and
Human Services Commission or the commissioner of health and human
services.
(e) A license, permit, or certification in effect that was
issued by an entity listed in Subsection (a) of this section and
that relates to a power, duty, function, program, or activity
transferred under that subsection is continued in effect as a
license, permit, or certification of the Department of Protective
Services.
SECTION 1.21. TRANSFERS TO THE DEPARTMENT OF SUPPORTIVE
SERVICES. (a) On the date specified in the transition plan
required under Section 1.23 of this article, the following powers,
duties, functions, programs, and activities, other than those
related to rulemaking or policymaking or administrative support
services such as strategic planning and evaluation, audit, legal,
human resources, information resources, accounting, purchasing,
financial management, and contract management services, are
transferred to the Department of Supportive Services:
(1) all powers, duties, functions, programs, and
activities of the Texas Department on Aging;
(2) except as provided by Section 1.18 of this
article, from the Texas Department of Human Services, all powers,
duties, functions, programs, and activities related to providing
long-term care services and community-based support and services,
licensing and enforcing regulations applicable to long-term care
facilities, and licensing and enforcing regulations applicable to
home and community support services agencies; and
(3) all powers, duties, functions, programs, and
activities of the Texas Department of Mental Health and Mental
Retardation related to providing mental retardation services,
including state school administration and services and community
residential services.
(b) On the date specified by Subsection (a) of this section:
(1) all obligations and contracts of an entity listed
in Subsection (a) of this section that are related to a power, duty,
function, program, or activity transferred under that subsection
are transferred to the Department of Supportive Services;
(2) all property and records in the custody of an
entity listed in Subsection (a) of this section that are related to
a power, duty, function, program, or activity transferred under
that subsection and all funds appropriated by the legislature for
the power, duty, function, program, or activity shall be
transferred to the Department of Supportive Services; and
(3) all complaints, investigations, or contested
cases that are pending before an entity or the governing body of an
entity listed in Subsection (a) of this section and that are related
to a power, duty, function, program, or activity transferred under
that subsection are transferred without change in status to the
Department of Supportive Services.
(c) A rule or form adopted by an entity listed in Subsection
(a) of this section that relates to a power, duty, function,
program, or activity transferred under that subsection is a rule or
form of the Department of Supportive Services and remains in effect
until altered by the commissioner of health and human services.
(d) A reference in law to an entity listed in Subsection (a)
of this section that relates to a power, duty, function, program, or
activity transferred under that subsection means the Department of
Supportive Services. A reference in law to the governing body of an
entity listed in Subsection (a) of this section means the Health and
Human Services Commission or the commissioner of health and human
services.
(e) A license, permit, or certification in effect that was
issued by an entity listed in Subsection (a) of this section and
that relates to a power, duty, function, program, or activity
transferred under that subsection is continued in effect as a
license, permit, or certification of the Department of Supportive
Services.
SECTION 1.22. FACILITATION OF TRANSFERS BY HEALTH AND HUMAN
SERVICES TRANSITION COUNCIL. (a) The Health and Human Services
Transition Council is created to facilitate the transfer of powers,
duties, functions, programs, and activities among the state's
health and human services agencies and the Health and Human
Services Commission as provided by this article with a minimal
negative effect on the delivery of those services in this state.
(b) The council is composed of 10 members, as follows:
(1) the commissioner of health and human services;
(2) two members of the senate, appointed by the
lieutenant governor not later than October 1, 2003;
(3) two members of the house of representatives,
appointed by the speaker of the house of representatives not later
than October 1, 2003; and
(4) five members of the public, appointed by the
governor not later than October 1, 2003.
(c) The commissioner of health and human services serves as
presiding officer. The members of the council shall elect any other
necessary officers.
(d) The council shall meet at the call of the presiding
officer.
(e) A member of the council serves at the will of the
appointing official.
(f) A member of the council may not receive compensation for
serving on the council but is entitled to reimbursement for travel
expenses incurred by the member while conducting the business of
the council as provided by the General Appropriations Act.
(g) The council, with assistance from the Health and Human
Services Commission and the health and human services agencies,
shall advise the commissioner of health and human services
concerning:
(1) the powers, duties, functions, programs, and
activities transferred under this article and the funds and
obligations that are related to the powers, duties, functions,
programs, or activities; and
(2) the transfer of the powers, duties, functions,
programs, activities, records, property, funds, obligations, and
employees by the entities listed in Sections 1.18, 1.19, 1.20, and
1.21 of this article in accordance with this article.
(h) The council shall fully consider all written and oral
submissions made on any matter or issue under the council's
jurisdiction.
(i) Chapter 551, Government Code, applies to the council.
(j) The council is abolished December 31, 2004.
SECTION 1.23. TRANSITION PLAN. (a) The transfer of powers,
duties, functions, programs, and activities under Sections 1.18,
1.19, 1.20, and 1.21 of this article to the Health and Human
Services Commission, the Department of Health Services, the
Department of Protective Services, and the Department of Supportive
Services, respectively, must be accomplished in accordance with a
schedule included in a transition plan developed by the
commissioner of health and human services and submitted to the
governor and the Legislative Budget Board not later than December
1, 2003. The commissioner shall provide to the governor and the
Legislative Budget Board transition plan status reports and updates
on at least a quarterly basis following submission of the initial
transition plan. The transition plan must be made available to the
public.
(b) Not later than November 1, 2003, the Health and Human
Services Commission shall hold a public hearing and accept public
comment regarding the transition plan required to be developed by
the commissioner of health and human services under Subsection (a)
of this section.
(c) In developing the transition plan, the commissioner of
health and human services shall hold public hearings in various
geographic areas in this state before submitting the plan to the
governor and the Legislative Budget Board as required by this
section.
SECTION 1.24. APPLICABILITY OF FORMER LAW. An action
brought or proceeding commenced before the date of a transfer
prescribed by this article in accordance with the transition plan
required under Section 1.23 of this article, including a contested
case or a remand of an action or proceeding by a reviewing court, is
governed by the laws and rules applicable to the action or
proceeding before the transfer.
SECTION 1.25. WORK PLAN FOR HEALTH AND HUMAN SERVICES
AGENCIES. (a) The Health and Human Services Commission, the
Department of Protective Services, and each health and human
services agency created under this article shall implement the
powers, duties, functions, programs, and activities assigned to the
agency under this article in accordance with a work plan designed by
the commission to ensure that the transfer and provision of health
and human services in this state are accomplished in a careful and
deliberative manner.
(b) A work plan designed by the commission under this
section must include the following phases:
(1) a planning phase, during which the agency will
focus on and stabilize the organization of the agency's powers,
duties, functions, programs, and activities, and which must
include:
(A) initiation of recommendations made by the
Health and Human Services Transition Council;
(B) creation of interagency and intra-agency
steering committees;
(C) development of global visions, goals, and
organizational strategies; and
(D) development of communications and risk
management plans;
(2) an integration phase, during which the agency will
identify opportunities and problems and design customized
solutions for those problems, and which must include:
(A) identification of key issues for the agency
relating to the Texas Integrated Eligibility Redesign System,
waivers needed from federal agencies, costs, or legal requirements
for other agency activities;
(B) planning for daily operations;
(C) validation of fiscal and program synergies;
(D) definition and building of a program
management office; and
(E) development of performance measures, related
tracking measures and tools, and risk mitigation initiatives;
(3) an optimization phase, during which the agency
will complete and expand on the initial health and human services
transitions, and which must include:
(A) optimization of initial implementation
initiatives;
(B) use of enterprise teaming operations;
(C) building infrastructures to support and
facilitate changes in the delivery of health and human services;
and
(D) identification and use of beneficial assets
management and facilities approaches; and
(4) a transformation phase, during which the agency
will continue implementing initial and additional changes to the
delivery of health and human services, and which must include:
(A) implementation of changes in agency
management activities;
(B) continuation of risk assessments; and
(C) conducting a transformation review of the
changes to the delivery of health and human services.
SECTION 1.26. ABOLITION OF STATE AGENCIES AND ENTITIES. (a)
The following state agencies and entities are abolished on the date
on which their respective powers, duties, functions, programs, and
activities are transferred under this article:
(1) the Interagency Council on Early Childhood
Intervention;
(2) the Texas Commission for the Blind;
(3) the Texas Commission for the Deaf and Hard of
Hearing;
(4) the Texas Commission on Alcohol and Drug Abuse;
(5) the Texas Department of Health;
(6) the Texas Department of Human Services;
(7) the Texas Department of Mental Health and Mental
Retardation;
(8) the Texas Department on Aging;
(9) the Texas Health Care Information Council; and
(10) the Texas Rehabilitation Commission.
(b) The abolition of a state agency or entity listed in
Subsection (a) of this section and the transfer of its powers,
duties, functions, programs, activities, obligations, rights,
contracts, records, property, funds, and employees as provided by
this article do not affect or impair an act done, any obligation,
right, order, permit, certificate, rule, criterion, standard, or
requirement existing, or any penalty accrued under former law, and
that law remains in effect for any action concerning those matters.
SECTION 1.27. A reference in law to the Department of
Protective and Regulatory Services means the Department of
Protective Services.
SECTION 1.28. REPEAL. The following are repealed:
(1) Sections 531.0057, 531.034, and 531.0345,
Government Code;
(2) Sections 40.0225 and 40.023, Human Resources Code;
and
(3) Article 2, Chapter 1505, Acts of the 76th
Legislature, Regular Session, 1999.
SECTION 1.29. EFFECTIVE DATE. (a) Except as provided by
Subsection (b) of this section, this article takes effect September
1, 2003.
(b) The Department of Health Services and the Department of
Supportive Services are created on the date the governor appoints
the commissioner of the respective agency.
ARTICLE 2. ADMINISTRATION, OPERATION, AND FINANCING OF
HEALTH AND HUMAN SERVICES PROGRAMS AND PROVISION OF
HEALTH AND HUMAN SERVICES
SECTION 2.01. Section 531.001, Government Code, is amended
by adding Subdivision (1-a) to read as follows:
(1-a) "Child health plan program" means the child
health plan program established under Chapters 62 and 63, Health
and Safety Code.
SECTION 2.02. (a) Subchapter A, Chapter 531, Government
Code, is amended by adding Section 531.017 to read as follows:
Sec. 531.017. PURCHASING DIVISION. (a) The commission
shall establish a purchasing division for the management of
administrative activities related to the purchasing functions of
the commission and the health and human services agencies.
(b) The purchasing division shall:
(1) seek to achieve targeted cost reductions, increase
process efficiencies, improve technological support and customer
services, and enhance purchasing support for each health and human
services agency; and
(2) if cost-effective, contract with private entities
to perform purchasing functions for the commission and the health
and human services agencies.
(b) Not later than January 1, 2004, the Health and Human
Services Commission shall develop and implement a plan to
consolidate the purchasing functions of the commission and health
and human services agencies in a purchasing division under Section
531.017, Government Code, as added by this section.
SECTION 2.03. Section 531.021, Government Code, is amended
by adding Subsection (c) to read as follows:
(c) The commission in its adoption of reasonable rules and
standards under Subsection (b)(2) shall include financial
performance standards that, in the event of a proposed rate
reduction, provide private ICF-MR facilities and home and
community-based services providers with flexibility in determining
how to use medical assistance payments to provide services in the
most cost-effective manner.
SECTION 2.04. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.0335 to read as follows:
Sec. 531.0335. PROHIBITION ON PUNITIVE ACTION FOR FAILURE
TO IMMUNIZE. (a) In this section:
(1) "Person responsible for a child's care, custody,
or welfare" has the meaning assigned by Section 261.001, Family
Code.
(2) "Punitive action" includes the initiation of an
investigation of a person responsible for a child's care, custody,
or welfare for alleged or suspected abuse or neglect of a child.
(b) The commissioner by rule shall prohibit a health and
human services agency from taking a punitive action against a
person responsible for a child's care, custody, or welfare for
failure of the person to ensure that the child receives the
immunization series prescribed by Section 161.004, Health and
Safety Code.
(c) This section does not affect a law, including Chapter
31, Human Resources Code, that specifically provides a punitive
action for failure to ensure that a child receives the immunization
series prescribed by Section 161.004, Health and Safety Code.
SECTION 2.05. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.0392 to read as follows:
Sec. 531.0392. RECOVERY OF CERTAIN THIRD-PARTY
REIMBURSEMENTS UNDER MEDICAID. (a) In this section, "dually
eligible individual" means an individual who is eligible to receive
health care benefits under both the Medicaid and Medicare programs.
(b) The commission shall obtain Medicaid reimbursement from
each fiscal intermediary who makes a payment to a service provider
on behalf of the Medicare program, including a reimbursement for a
payment made to a home health services provider or nursing facility
for services rendered to a dually eligible individual.
SECTION 2.06. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.063 to read as follows:
Sec. 531.063. CALL CENTER. (a) The commission, by rule,
shall establish a call center for purposes of determining and
certifying or recertifying a person's eligibility and need for
services related to the programs listed under Section 531.008(c),
if cost-effective.
(b) The commission shall contract with at least one but not
more than four private entities for the operation of a call center
required by this section unless the commission determines that
contracting for the operation of the center would not be
cost-effective.
(c) Translation services. Call centers shall provide
translation services as required by federal law for clients unable
to speak, hear, or comprehend the English language.
(d) The commission shall develop consumer service and
performance standards for the operation of a call center required
by this section. The standards shall address a call center's:
(1) ability to serve its consumers in a timely manner,
including consideration of the consumers' ability to access the
call center, whether the call center has toll-free telephone
access, the average amount of time a consumer spends on hold, the
frequency of call transfers, whether a consumer is able to
communicate with a live person at the call center, and whether the
call center makes mail correspondence available;
(2) staff, including employee courtesy, friendliness,
training, and knowledge about the programs listed under Section
531.008(c); and
(3) complaint handling procedures, including the
level of difficulty involved in filing a complaint and whether the
call center's complaint responses are timely.
(e) The commission shall make available to the public the
standards developed under Subsection (d).
(f) The commission shall develop:
(1) mechanisms for measuring consumer service
satisfaction; and
(2) performance measures to evaluate whether the call
center meets the standards developed under Subsection (d).
(g) The commission may inspect a call center and analyze its
consumer service performance through use of a consumer service
evaluator who poses as a consumer of the call center.
(h) Notwithstanding Subsection (a), the commissioner shall
develop and implement policies that provide an applicant for
services related to the programs listed under Section 531.008(c)
with an opportunity to appear in person to establish initial
eligibility or to comply with periodic eligibility recertification
requirements if the applicant requests a personal interview. This
subsection does not affect a law or rule that requires an applicant
to appear in person to establish initial eligibility or to comply
with periodic eligibility recertification requirements.
SECTION 2.07. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.065 to read as follows:
Sec. 531.065. CONSOLIDATION AND COORDINATION OF HEALTH
INSURANCE PREMIUM PAYMENT REIMBURSEMENT PROGRAMS. (a) The
commission shall develop and implement a plan to consolidate and
coordinate the administration of the health insurance premium
payment reimbursement programs prescribed by Section 62.059,
Health and Safety Code, and Section 32.0422, Human Resources Code.
(b) If cost-effective, the commission may contract with a
private entity to assist the commission in developing and
implementing a plan required by this section.
(b) Section 62.059(i), Health and Safety Code, and Section
32.0422(m), Human Resources Code, are repealed.
(c) Not later than January 1, 2004, the Health and Human
Services Commission shall develop and implement a plan to
consolidate and coordinate the administration of health insurance
premium payment reimbursement programs as required by Section
531.065, Government Code, as added by this section.
SECTION 2.08. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.067 to read as follows:
Sec. 531.067. PUBLIC ASSISTANCE HEALTH BENEFIT REVIEW AND
DESIGN COMMITTEE. (a) The commission shall appoint a Public
Assistance Health Benefit Review and Design Committee. The
committee consists of nine representatives of health care providers
participating in the Medicaid program or the child health plan
program, or both. The committee membership must include at least
three representatives from each program.
(b) The commissioner shall designate one member to serve as
presiding officer for a term of two years.
(c) The committee shall meet at the call of the presiding
officer.
(d) The committee shall review and provide recommendations
to the commission regarding health benefits and coverages provided
under the state Medicaid program, the child health plan program,
and any other income-based health care program administered by the
commission or a health and human services agency. In performing its
duties under this subsection, the committee must:
(1) review prescription drug benefits provided under
each of the programs; and
(2) review procedures for addressing high utilization
of benefits by recipients.
(e) The commission shall provide administrative support and
resources as necessary for the committee to perform its duties
under this section.
(f) Section 2110.008 does not apply to the committee.
(g) In performing the duties under this section, the
commission may design and implement a program to improve and
monitor clinical and functional outcomes of a recipient of services
under the state child health plan or medical assistance program.
The program may use financial, clinical, and other criteria based
on pharmacy, medical services, and other claims data related to the
child health plan or the state medical assistance program. The
commission must report to the committee on the fiscal impact,
including any savings associated with the strategies utilized under
this section.
SECTION 2.09. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.068 to read as follows:
Sec. 531.068. MEDICAID OR OTHER HEALTH BENEFIT COVERAGE.
In adopting rules or standards governing the state Medicaid program
or rules or standards for the development or implementation of
health benefit coverage for a program administered by the
commission or a health and human services agency, the commission
and each health and human services agency, as appropriate, may take
into consideration any recommendation made with respect to health
benefits provided under their respective programs or the state
Medicaid program by the Public Assistance Health Benefit Review and
Design Committee established under Section 531.067.
SECTION 2.10. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.069 to read as follows:
Sec. 531.069. PERIODIC REVIEW OF VENDOR DRUG PROGRAM. (a)
The commission shall periodically review all purchases made under
the vendor drug program to determine the cost-effectiveness of
including a component for prescription drug benefits in any
capitation rate paid by the state under a Medicaid managed care
program or the child health plan program.
(b) In making the determination required by Subsection (a),
the commission shall consider the value of any prescription drug
rebates received by the state.
SECTION 2.11. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.070 to read as follows:
Sec. 531.070. SUPPLEMENTAL REBATES. (a) In this section:
(1) "Labeler" means a person that:
(A) has a labeler code from the United States
Food and Drug Administration under 21 C.F.R. Section 207.20; and
(B) receives prescription drugs from a
manufacturer or wholesaler and repackages those drugs for later
retail sale.
(2) "Manufacturer" means a manufacturer of
prescription drugs as defined by 42 U.S.C. Section 1396r-8(k)(5)
and its subsequent amendments, including a subsidiary or affiliate
of a manufacturer.
(3) "Wholesaler" means a person licensed under
Subchapter I, Chapter 431, Health and Safety Code.
(b) For purposes of this section, the term "supplemental
rebates" shall mean cash rebates paid by a pharmaceutical
manufacturer to the state on the basis of quarterly Medicaid
utilization data relating to such manufacturer's products,
pursuant to a state supplemental rebate agreement negotiated with
such manufacturer and approved by the federal government under
Section 1927 of the federal Social Security Act.
(c) The commission may enter into a written agreement with a
manufacturer to accept certain program benefits in lieu of
supplemental rebates, as such term is defined herein, only if:
(1) the program benefit yields savings that are at
least equal to the amount the manufacturer would have provided
under a state supplemental rebate agreement during the current
biennium as determined by such written agreement;
(2) the manufacturer posts a performance bond
guaranteeing savings to the state. If the savings are not achieved
in accordance with the written agreement, the manufacturer will
forfeit the bond to the state less any savings that were achieved;
and
(3) the program benefit is in addition to other
program benefits currently offered by the manufacturer to
recipients of medical assistance or related programs.
(d) For the purposes of this section, a program benefit may
mean disease management programs authorized under this title, drug
product donation programs, drug utilization control programs,
prescriber and beneficiary counseling and education, fraud and
abuse initiatives, and other services or administrative
investments with guaranteed savings to a program operated by a
health and human services agency.
(e) Other than as required to satisfy the provisions of this
section, such program investments shall be deemed an alternative
to, and not the equivalent of, supplemental rebates and shall be
treated in the state's submissions to the federal government
(including, as appropriate, waiver requests and quarterly Medicaid
claims) so as to maximize the availability of federal matching
payments.
(f) Agreements by the commission to accept program benefits
as defined by this section:
(1) may not prohibit the commission from entering into
similar agreements related to different drug classes with other
entities;
(2) shall be limited to a time period expressly
determined by the commission; and
(3) may only cover products that have received
approval by the Federal Drug Administration at the time of the
agreement, and new products approved after the agreement may be
incorporated only under an amendment to the agreement.
(g) For the purposes of this section, the commission may
consider a monetary contribution or donation to the arrangements
described in Subsection (b) for the purpose of offsetting
expenditures to other state health care programs, but which funding
shall not be used to offset expenditures for covered outpatient
drugs as defined by 42 U.S.C. Section 1396r-8(k)(2) under the
vendor drug program. An arrangement under this subsection may not
yield less than the amount the state would have benefited under a
supplemental rebate. The commission may consider an arrangement
under this section as satisfying the requirements related to
Section 531.072(b).
(h) Subject to Subsection (i), the commission shall
negotiate with manufacturers and labelers, including generic
manufacturers and labelers, to obtain supplemental rebates for
prescription drugs sold in this state.
(i) The commission may by contract authorize a private
entity to negotiate with manufacturers and labelers on behalf of
the commission.
(j) A manufacturer or labeler that sells prescription drugs
in this state may voluntarily negotiate with the commission and
enter into an agreement to provide supplemental rebates for
prescription drugs provided under:
(1) the Medicaid vendor drug program in excess of the
Medicaid rebates required by 42 U.S.C. Section 1396r-8 and its
subsequent amendments;
(2) the child health plan program; and
(3) any other state program administered by the
commission, including community mental health centers and state
mental health hospitals.
(k) In negotiating terms for a supplemental rebate amount,
the commission shall consider:
(1) rebates calculated under the Medicaid rebate
program in accordance with 42 U.S.C. Section 1396r-8 and its
subsequent amendments;
(2) any other available information on prescription
drug prices or rebates; and
(3) other program benefits as specified in Subsection
(c).
(l) Each year the commission shall provide a written report
to the legislature and the governor. The report shall cover:
(1) the cost of administering the preferred drug lists
adopted under Section 531.072;
(2) an analysis of the utilization trends for medical
services provided by the state and any correlation to the preferred
drug lists;
(3) an analysis of the effect on health outcomes and
results for recipients; and
(4) statistical information related to the number of
approvals granted or denied.
(m) In negotiating terms for a supplemental rebate, the
commission shall utilize the average manufacturer price (AMP), as
defined in Section 1396r-8(k)(1) of the Omnibus Budget
Reconciliation Act of 1990, as the cost basis for the product.
(b) Not later than January 1, 2004, the Health and Human
Services Commission shall implement Section 531.070, Government
Code, as added by this section.
SECTION 2.12. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.071 to read as follows:
Sec. 531.071. CONFIDENTIALITY OF INFORMATION REGARDING
DRUG REBATES, PRICING, AND NEGOTIATIONS. (a) Notwithstanding any
other state law, information obtained or maintained by the
commission regarding prescription drug rebate negotiations or a
supplemental medical assistance or other rebate agreement,
including trade secrets, rebate amount, rebate percentage, and
manufacturer or labeler pricing, is confidential and not subject to
disclosure under Chapter 552.
(b) Information that is confidential under Subsection (a)
includes information described by Subsection (a) that is obtained
or maintained by the commission in connection with the Medicaid
vendor drug program, the child health plan program, the kidney
health care program, or the children with special health care needs
program.
(c) General information about the aggregate costs of
different classes of drugs is not confidential under Subsection
(a).
SECTION 2.13. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.072 to read as follows:
Sec. 531.072. PREFERRED DRUG LISTS FOR MEDICAID AND CHILD
HEALTH PLAN PROGRAMS. (a) In a manner that complies with
applicable state and federal law, the commission shall adopt
preferred drug lists for the Medicaid vendor drug program and for
prescription drugs purchased through the child health plan program.
(b) The preferred drug lists may contain only drugs provided
by a manufacturer or labeler that reaches an agreement with the
commission on supplemental rebates under Section 531.070.
(c) In making a decision regarding the placement of a drug
on each of the preferred drug lists, the commission shall consider:
(1) the recommendations of the Pharmaceutical and
Therapeutics Committee established under Section 531.074;
(2) the clinical efficacy of the drug;
(3) the price of competing drugs after deducting any
federal and state rebate amounts; and
(4) program benefit offerings solely or in conjunction
with rebates and other pricing information.
(d) The commission shall provide for the distribution of
current copies of the preferred drug lists to all appropriate
health care providers in this state by posting the list on the
Internet. In addition, the commission shall mail copies of the
lists to any health care provider on request of that provider.
(e) In this subsection, "labeler" and "manufacturer" have
the meanings assigned by Section 531.070. The commission shall
ensure that:
(1) a manufacturer or labeler may submit written
evidence supporting the inclusion of a drug on the preferred drug
lists before a supplemental agreement is reached with the
commission; and
(2) any drug that has been approved or has had any of
its particular uses approved by the United States Food and Drug
Administration under a priority review classification will be
reviewed by the Pharmaceutical and Therapeutics Committee at the
next regularly scheduled meeting of the committee. On receiving
notice from a manufacturer or labeler of the availability of a new
product, the commission, to the extent possible, shall schedule a
review for the product at the next regularly scheduled meeting of
the committee.
(f) A recipient of drug benefits under the Medicaid vendor
drug program may appeal a denial of prior authorization under
Section 531.073 of a covered drug or covered dosage through the
Medicaid fair hearing process.
(b) Not later than March 1, 2004, the Health and Human
Services Commission shall adopt the preferred drug lists as
required by Section 531.072, Government Code, as added by this
section.
SECTION 2.14. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.073 to read as follows:
Sec. 531.073. PRIOR AUTHORIZATION FOR CERTAIN PRESCRIPTION
DRUGS. (a) The commission, in its rules and standards governing
the Medicaid vendor drug program and the child health plan program,
shall require prior authorization for the reimbursement of a drug
that is not included in the appropriate preferred drug list adopted
under Section 531.072, except for any drug exempted from prior
authorization requirements by federal law. The commission shall
require that the prior authorization be obtained by the prescribing
physician.
(a-1) The commission shall delay requiring a prior
authorization for drugs listed in Subsection (a-2) until the
commission has completed a study evaluating the impact of a
requirement of prior authorization on the recipients of certain
drug classes.
(a-2) Drugs subject to the study in Subsection (a-1) include
drugs used in the treatment of:
(1) cancer and cancer-supportive care;
(2) end-stage renal disease;
(3) chronic nonmalignant pain;
(4) hemophilia; and
(5) multiple sclerosis.
(b) The commission shall establish procedures for the prior
authorization requirement under the Medicaid vendor drug program to
ensure that the requirements of 42 U.S.C. Section 1396r-8(d)(5) and
its subsequent amendments are met. Specifically, the procedures
must ensure that:
(1) a prior authorization requirement is not imposed
for a drug before the drug has been considered at a meeting of the
Pharmaceutical and Therapeutics Committee established under
Section 531.074;
(2) there will be a response to a request for prior
authorization by telephone or other telecommunications device
within 24 hours after receipt of a request for prior authorization;
and
(3) a 72-hour supply of the drug prescribed will be
provided in an emergency or if the commission does not provide a
response within the time required by Subdivision (2).
(c) The commission shall ensure that a prescription drug
prescribed before implementation of a prior authorization
requirement for that drug for a recipient under the child health
plan program, the Medicaid program, or another state program
administered by the commission or for a person who becomes eligible
under the child health plan program, the Medicaid program, or
another state program administered by the commission is not subject
to any requirement for prior authorization under this section
unless the recipient has exhausted all the prescription, including
any authorized refills, or a period prescribed by the commission
has expired, whichever occurs first.
(d) The commission shall implement procedures to ensure
that a recipient under the child health plan program, the Medicaid
program, or another state program administered by the commission or
a person who becomes eligible under the child health plan program,
the Medicaid program, or another state program administered by the
commission receives continuity of care in relation to certain
prescriptions identified by the commission.
(e) The commission may by contract authorize a private
entity to administer the prior authorization requirements imposed
by this section on behalf of the commission.
(f) The commission shall ensure that the prior
authorization requirements are implemented in a manner that
minimizes the cost to the state and any administrative burden
placed on providers.
SECTION 2.15. (a) Subchapter B, Chapter 531, Government
Code, is amended by adding Section 531.074 to read as follows:
Sec. 531.074. PHARMACEUTICAL AND THERAPEUTICS COMMITTEE.
(a) The Pharmaceutical and Therapeutics Committee is established
for the purposes of developing recommendations for a preferred drug
list for the Medicaid vendor drug program and a preferred drug list
for the child health plan program.
(b) The committee consists of the following members
appointed by the governor:
(1) six physicians licensed under Subtitle B, Title 3,
Occupations Code, and participating in the Medicaid program, at
least one of whom is a licensed physician who is actively engaged in
mental health providing care and treatment to persons with severe
mental illness and who has practice experience in the state
Medicaid plan; and
(2) five pharmacists licensed under Subtitle J, Title
3, Occupations Code, and participating in the Medicaid vendor drug
program.
(c) In making appointments to the committee under
Subsection (b), the governor shall ensure that the committee
includes physicians and pharmacists who:
(1) represent different specialties and provide
services to all segments of the Medicaid program's diverse
population;
(2) have experience in either developing or practicing
under a preferred drug list; and
(3) do not have a contractual relationship, ownership
interest, or other conflict of interest with an entity engaged by
the commission to assist in the development of the preferred drug
list or administration of the prior authorization system.
(d) A member of the committee is appointed for a two-year
term and may serve more than one term.
(e) The governor shall appoint a physician to be the
presiding officer of the committee. The presiding officer serves
at the pleasure of the governor.
(f) The committee shall meet at least monthly during the
six-month period following establishment of the committee to enable
the committee to develop recommendations for the initial preferred
drug lists. After that period, the committee shall meet at least
quarterly and at other times at the call of the presiding officer or
a majority of the committee members.
(g) A member of the committee may not receive compensation
for serving on the committee but is entitled to reimbursement for
reasonable and necessary travel expenses incurred by the member
while conducting the business of the committee, as provided by the
General Appropriations Act.
(h) In developing its recommendations for the preferred
drug lists, the committee shall consider the clinical efficacy,
safety, and cost-effectiveness and any program benefit associated
with a product.
(i) The commission shall adopt rules governing the
operation of the committee, including rules governing the
procedures used by the committee for providing notice of a meeting
and rules prohibiting the committee from discussing confidential
information described by Section 531.071 in a public meeting. The
committee shall comply with the rules adopted under this
subsection.
(j) To the extent feasible, the committee shall review all
drug classes included in the preferred drug lists adopted under
Section 531.072 at least once every 12 months and may recommend
inclusions to and exclusions from the list to ensure that the list
provides for cost-effective medically appropriate drug therapies
for Medicaid recipients and children receiving health benefits
coverage under the child health plan program.
(k) The commission shall provide administrative support and
resources as necessary for the committee to perform its duties.
(l) Chapter 2110 does not apply to the committee.
(b) Not later than November 1, 2003, the governor shall
appoint members to the Pharmaceutical and Therapeutics Committee
established under Section 531.074, Government Code, as added by
this section.
(c) Not later than January 1, 2004, the Pharmaceutical and
Therapeutics Committee established under Section 531.074,
Government Code, as added by this section, shall submit
recommendations for the preferred drug lists the committee is
required to develop under that section to the Health and Human
Services Commission.
SECTION 2.16. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.075 to read as follows:
Sec. 531.075. PRIOR AUTHORIZATION FOR HIGH-COST MEDICAL
SERVICES. The commission may evaluate and implement, as
appropriate, procedures, policies, and methodologies to require
prior authorization for high-cost medical services and procedures
and may contract with qualified service providers or organizations
to perform those functions. Any such program shall recognize any
prohibitions in federal law on limits in the amount, duration, or
scope of medically necessary services for children on Medicaid.
SECTION 2.17. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.076 to read as follows:
Sec. 531.076. UP TO SIX-BED FACILITY MODEL AUTHORIZED. (a)
The commission shall develop a plan to permit the use of a
residential program model of a facility of up to six beds in the
mental retardation Medicaid waiver program under the authority of
the Texas Department of Mental Health and Mental Retardation.
(b) The plan described in this section shall provide for
retaining a three-bed facility model and a planned, organized
transition from the four-bed facility model to the six-bed facility
model, which shall include:
(1) the evaluation of the feasibility of, and legal
and liability considerations related to, the use of contracted
workers in a residential setting, including any impediments in
current state regulations relating to the elimination of the staff
live-in limits and consumer residential assistance delegations;
and
(2) the development of a reimbursement rate for each
residential model that considers cost factors including but not
limited to:
(A) the adequacy of the current rate structure of
the three-bed and four-bed facility models and the rate for the
six-bed facility model;
(B) the adequacy of the occupancy factor;
(C) the adequacy of the resident leave factor;
(D) the transition costs, including those
related to real estate, vehicles, federal safety standards, and
consumer movement cost factors; and
(E) the inclusion of the same wage assumptions
for direct support staff that are provided under the reimbursement
methodology for ICF-MR facilities.
(c) The plan shall be developed with the assistance of a
work group which shall include members of the staff of the
commission, representatives of public providers, private
providers, and advocates. The plan shall be submitted to the
Governor's Office of Budget and Planning, the House Appropriations
Committee, and the Senate Finance Committee not later than
September 1, 2004.
SECTION 2.18. Subchapter B, Chapter 531, Government Code,
is amended by adding Section 531.077 to read as follows:
Sec. 531.077. MEDICAID PROGRAM. (a) The commissioner
shall ensure that the state Medicaid program implements 42 U.S.C.
Section 1396p(b)(1).
(b) The Medicaid account is an account in the general
revenue fund. Any funds recovered by implementing 42 U.S.C.
Section 1396p(b)(1) shall be deposited in the Medicaid account.
Money in the account may be appropriated only to fund long-term
care, including community-based care and facility-based care.
SECTION 2.19. (a) Section 531.101, Government Code, is
amended to read as follows:
Sec. 531.101. AWARD FOR REPORTING MEDICAID FRAUD, ABUSE, OR
OVERCHARGES. (a) The commission may grant an award to an individual
who reports activity that constitutes fraud or abuse of funds in the
state Medicaid program or reports overcharges in the program if the
commission determines that the disclosure results in the recovery
of an administrative penalty imposed under Section 32.039, Human
Resources Code. The commission may not grant an award to an
individual in connection with a report if the commission or
attorney general had independent knowledge of the activity reported
by the individual [overcharge or in the termination of the
fraudulent activity or abuse of funds].
(b) The commission shall determine the amount of an award.
The award may not exceed five [must be equal to not less than 10]
percent of the amount of the administrative penalty imposed under
Section 32.039, Human Resources Code, [savings to this state] that
resulted [result] from the individual's disclosure. In determining
the amount of the award, the commission shall consider how
important the disclosure is in ensuring the fiscal integrity of the
program. The commission may also consider whether the individual
participated in the fraud, abuse, or overcharge.
(c) [An award under this section is subject to
appropriation. The award must be paid from money appropriated to or
otherwise available to the commission, and additional money may not
be appropriated to the commission for the purpose of paying the
award.
[(d) Payment of an award under this section from federal
funds is subject to the permissible use under federal law of funds
for this purpose.
[(e)] A person who brings an action under Subchapter C,
Chapter 36, Human Resources Code, is not eligible for an award under
this section.
(b) Section 531.101, Government Code, as amended by this
section, applies only to a report that occurs on or after the
effective date of this section. A report that occurs before the
effective date of this section is governed by the law in effect at
the time of the report, and the former law is continued in effect
for that purpose.
SECTION 2.20. (a) Section 531.102, Government Code, is
amended to read as follows:
Sec. 531.102. [INVESTIGATIONS AND ENFORCEMENT] OFFICE OF
INSPECTOR GENERAL. (a) The commission, through the commission's
office of inspector general [investigations and enforcement], is
responsible for the investigation of fraud and abuse in the
provision of health and human services and the enforcement of state
law relating to the provision of those services. The commission may
obtain any information or technology necessary to enable the office
to meet its responsibilities under this subchapter or other law.
(a-1) The governor shall appoint an inspector general to
serve as director of the office. The inspector general serves a
one-year term that expires on February 1.
(b) The commission, in consultation with the inspector
general, shall set clear objectives, priorities, and performance
standards for the office that emphasize:
(1) coordinating investigative efforts to
aggressively recover money;
(2) allocating resources to cases that have the
strongest supportive evidence and the greatest potential for
recovery of money; and
(3) maximizing opportunities for referral of cases to
the office of the attorney general in accordance with Section
531.103.
(c) The commission shall train office staff to enable the
staff to pursue priority Medicaid and other health and human
services [welfare] fraud and abuse cases as necessary.
(d) The commission may require employees of health and human
services agencies to provide assistance to the office [commission]
in connection with the office's [commission's] duties relating to
the investigation of fraud and abuse in the provision of health and
human services. The office is entitled to access to any information
maintained by a health and human services agency, including
internal records, relevant to the functions of the office.
(e) The commission, in consultation with the inspector
general, by rule shall set specific claims criteria that, when met,
require the office to begin an investigation.
(f)(1) If the commission receives a complaint of Medicaid
fraud or abuse from any source, the office must conduct an integrity
review to determine whether there is sufficient basis to warrant a
full investigation. An integrity review must begin not later than
the 30th day after the date the commission receives a complaint or
has reason to believe that fraud or abuse has occurred. An
integrity review shall be completed not later than the 90th day
after it began.
(2) If the findings of an integrity review give the
office reason to believe that an incident of fraud or abuse
involving possible criminal conduct has occurred in the Medicaid
program, the office must take the following action, as appropriate,
not later than the 30th day after the completion of the integrity
review:
(A) if a provider is suspected of fraud or abuse
involving criminal conduct, the office must refer the case to the
state's Medicaid fraud control unit, provided that the criminal
referral does not preclude the office from continuing its
investigation of the provider, which investigation may lead to the
imposition of appropriate administrative or civil sanctions; or
(B) if there is reason to believe that a
recipient has defrauded the Medicaid program, the office may
conduct a full investigation of the suspected fraud.
(g)(1) In addition to other instances authorized under
state or federal law, the office shall impose without prior notice a
hold on payment of claims for reimbursement submitted by a provider
to compel production of records or when requested by the state's
Medicaid fraud control unit, as applicable. The office must notify
the provider of the hold on payment not later than the fifth working
day after the date the payment hold is imposed.
(2) The office shall, in consultation with the state's
Medicaid fraud control unit, establish guidelines under which holds
on payment or program exclusions:
(A) may permissively be imposed on a provider; or
(B) shall automatically be imposed on a provider.
(3) Whenever the office learns or has reason to
suspect that a provider's records are being withheld, concealed,
destroyed, fabricated, or in any way falsified, the office shall
immediately refer the case to the state's Medicaid fraud control
unit. However, the criminal referral does not preclude the office
from continuing its investigation of the provider, which
investigation may lead to the imposition of appropriate
administrative or civil sanctions.
(h) In addition to performing functions and duties
otherwise provided by law, the office may:
(1) assess administrative penalties otherwise
authorized by law on behalf of the commission or a health and human
services agency;
(2) request that the attorney general obtain an
injunction to prevent a person from disposing of an asset
identified by the office as potentially subject to recovery by the
office due to the person's fraud or abuse;
(3) provide for coordination between the office and
special investigative units formed by managed care organizations
under Section 531.113 or entities with which managed care
organizations contract under that section;
(4) audit the use and effectiveness of state or
federal funds, including contract and grant funds, administered by
a person or state agency receiving the funds from a health and human
services agency;
(5) conduct investigations relating to the funds
described by Subdivision (4); and
(6) recommend policies promoting economical and
efficient administration of the funds described by Subdivision (4)
and the prevention and detection of fraud and abuse in
administration of those funds.
(i) Notwithstanding any other provision of law, a reference
in law or rule to the commission's office of investigations and
enforcement means the office of inspector general established under
this section.
(b) As soon as possible after the effective date of this
section, the governor shall appoint a person to serve as inspector
general in accordance with Section 531.102, Government Code, as
amended by this section. The initial term of the person appointed
in accordance with this subsection expires February 1, 2005.
SECTION 2.21. Subchapter C, Chapter 531, Government Code,
is amended by adding Section 531.1021 to read as follows:
Sec. 531.1021. SUBPOENAS. (a) The office of inspector
general may request that the commissioner or the commissioner's
designee approve the issuance by the office of a subpoena in
connection with an investigation conducted by the office. If the
request is approved, the office may issue a subpoena to compel the
attendance of a relevant witness or the production, for inspection
or copying, of relevant evidence that is in this state.
(b) A subpoena may be served personally or by certified
mail.
(c) If a person fails to comply with a subpoena, the office,
acting through the attorney general, may file suit to enforce the
subpoena in a district court in this state.
(d) On finding that good cause exists for issuing the
subpoena, the court shall order the person to comply with the
subpoena. The court may punish a person who fails to obey the court
order.
(e) The office shall pay a reasonable fee for photocopies
subpoenaed under this section in an amount not to exceed the amount
the office may charge for copies of its records.
(f) The reimbursement of the expenses of a witness whose
attendance is compelled under this section is governed by Section
2001.103.
(g) All information and materials subpoenaed or compiled by
the office in connection with an investigation are confidential and
not subject to disclosure under Chapter 552, and not subject to
disclosure, discovery, subpoena, or other means of legal compulsion
for their release to anyone other than the office or its employees
or agents involved in the investigation conducted by the office,
except that this information may be disclosed to the office of the
attorney general and law enforcement agencies.
SECTION 2.22. (a) Section 531.103, Government Code, is
amended to read as follows:
Sec. 531.103. INTERAGENCY COORDINATION. (a) The
commission, acting through the commission's office of inspector
general, and the office of the attorney general shall enter into a
memorandum of understanding to develop and implement joint written
procedures for processing cases of suspected fraud, waste, or
abuse, as those terms are defined by state or federal law, or other
violations of state or federal law under the state Medicaid program
or other program administered by the commission or a health and
human services agency, including the financial assistance program
under Chapter 31, Human Resources Code, a nutritional assistance
program under Chapter 33, Human Resources Code, and the child
health plan program. The memorandum of understanding shall
require:
(1) the office of inspector general [commission] and
the office of the attorney general to set priorities and guidelines
for referring cases to appropriate state agencies for
investigation, prosecution, or other disposition to enhance
deterrence of fraud, waste, [or] abuse, or other violations of
state or federal law, including a violation of Chapter 102,
Occupations Code, in the programs [program] and maximize the
imposition of penalties, the recovery of money, and the successful
prosecution of cases;
(1-a) the office of inspector general to refer each
case of suspected provider fraud, waste, or abuse to the office of
the attorney general not later than the 10th business day after the
date the office of inspector general determines that the existence
of fraud, waste, or abuse is reasonably indicated;
(1-b) the office of the attorney general to take
appropriate action in response to each case referred to the
attorney general, which action may include direct initiation of
prosecution or civil litigation or referral to an appropriate
United States attorney, a district attorney, a county attorney, or
a collections agency for initiation of prosecution, civil
litigation, or other appropriate action;
(2) the office of inspector general [commission] to
keep detailed records for cases processed by that office [the
commission] or the office of the attorney general, including
information on the total number of cases processed and, for each
case:
(A) the agency and division to which the case is
referred for investigation;
(B) the date on which the case is referred; and
(C) the nature of the suspected fraud, waste, or
abuse;
(3) the office of inspector general [commission] to
notify each appropriate division of the office of the attorney
general of each case referred by the office of inspector general
[commission];
(4) the office of the attorney general to ensure that
information relating to each case investigated by that office is
available to each division of the office with responsibility for
investigating suspected fraud, waste, or abuse;
(5) the office of the attorney general to notify the
office of inspector general [commission] of each case the attorney
general declines to prosecute or prosecutes unsuccessfully;
(6) representatives of the office of inspector general
[commission] and of the office of the attorney general to meet not
less than quarterly to share case information and determine the
appropriate agency and division to investigate each case; and
(7) the office of inspector general [commission] and
the office of the attorney general to submit information requested
by the comptroller about each resolved case for the comptroller's
use in improving fraud detection.
(b) An exchange of information under this section between
the office of the attorney general and the commission, the office of
inspector general, or a health and human services agency does not
affect whether the information is subject to disclosure under
Chapter 552.
(c) The commission and the office of the attorney general
shall jointly prepare and submit a semiannual report to the
governor, lieutenant governor, [and] speaker of the house of
representatives, and comptroller concerning the activities of
those agencies in detecting and preventing fraud, waste, and abuse
under the state Medicaid program or other program administered by
the commission or a health and human services agency. The report
may be consolidated with any other report relating to the same
subject matter the commission or office of the attorney general is
required to submit under other law.
(d) The commission and the office of the attorney general
may not assess or collect investigation and attorney's fees on
behalf of any state agency unless the office of the attorney general
or other state agency collects a penalty, restitution, or other
reimbursement payment to the state.
(e) In addition to the provisions required by Subsection
(a), the memorandum of understanding required by this section must
also ensure that no barriers to direct fraud referrals to the office
of the attorney general's Medicaid fraud control unit or
unreasonable impediments to communication between Medicaid agency
employees and the Medicaid fraud control unit are imposed, and must
include procedures to facilitate the referral of cases directly to
the office of the attorney general. [The commission shall refer a
case of suspected fraud, waste, or abuse under the state Medicaid
program to the appropriate district attorney, county attorney, city
attorney, or private collection agency if the attorney general
fails to act within 30 days of referral of the case to the office of
the attorney general. A failure by the attorney general to act
within 30 days constitutes approval by the attorney general under
Section 2107.003.]
(f) A [The] district attorney, county attorney, city
attorney, or private collection agency may collect and retain costs
associated with a [the] case referred to the attorney or agency in
accordance with procedures adopted under this section and 20
percent of the amount of the penalty, restitution, or other
reimbursement payment collected.
(b) Not later than December 1, 2003, the office of the
attorney general and the Health and Human Services Commission shall
amend the memorandum of understanding required by Section 531.103,
Government Code, as necessary to comply with that section, as
amended by this section.
SECTION 2.23. Section 531.104(b), Government Code, is
amended to read as follows:
(b) The memorandum of understanding must specify the type,
scope, and format of the investigative support provided to the
attorney general under this section [provide that the commission is
not required to provide investigative support in more than 100 open
investigations in a fiscal year].
SECTION 2.24. (a) Subchapter C, Chapter 531, Government
Code, is amended by adding Section 531.1063 to read as follows:
Sec. 531.1063. MEDICAID FRAUD PILOT PROGRAM. (a) The
commission, with cooperation from the Texas Department of Human
Services, shall develop and implement a front-end Medicaid fraud
reduction pilot program in one or more counties in this state to
address provider fraud and appropriate cases of third-party and
recipient fraud.
(b) The program must be designed to reduce:
(1) the number of fraud cases arising from
authentication fraud and abuse;
(2) the total amount of Medicaid expenditures; and
(3) the number of fraudulent participants.
(c) The program must include:
(1) participant smart cards and biometric readers that
reside at the point of contact with Medicaid providers, recipients,
participating pharmacies, hospitals, and appropriate third-party
participants;
(2) a secure finger-imaging system that is HIPPA
compliant and the use of any existing state database of fingerprint
images developed in connection with the financial assistance
program under Chapter 31, Human Resources Code; fingerprint images
collected as part of the program shall only be placed on the smart
card; and
(3) a monitoring system.
(d) To ensure reliability, the program and all associated
hardware and software must easily integrate into participant
settings and must be initially tested in a physician environment in
this state and determined to be successful in authenticating
recipients, providers, and provider staff members before the
program is implemented throughout the program area.
(e) The commission may extend the program to additional
counties if the commission determines that expansion would be
cost-effective.
(b) Not later than January 1, 2004, the Health and Human
Services Commission shall begin implementation of the program
required by Section 531.1063, Government Code, as added by this
section.
(c) Not later than February 1, 2005, the Health and Human
Services Commission shall report to the governor, the lieutenant
governor, and the speaker of the house of representatives regarding
the program required by Section 531.1063, Government Code, as added
by this section. The report must include:
(1) an identification and evaluation of the benefits
of the program; and
(2) recommendations regarding expanding the program
statewide.
SECTION 2.24A. Section 531.107(b), Government Code, is
amended to read as follows:
(b) The task force is composed of a representative of the:
(1) attorney general's office, appointed by the
attorney general;
(2) comptroller's office, appointed by the
comptroller;
(3) Department of Public Safety, appointed by the
public safety director;
(4) state auditor's office, appointed by the state
auditor;
(5) commission, appointed by the commissioner of
health and human services;
(6) Texas Department of Human Services, appointed by
the commissioner of human services; [and]
(7) Texas Department of Insurance, appointed by the
commissioner of insurance; and
(8) Texas Department of Health, appointed by the
commissioner of public health.
SECTION 2.25. (a) Subchapter C, Chapter 531, Government
Code, is amended by adding Section 531.113 to read as follows:
Sec. 531.113. MANAGED CARE ORGANIZATIONS: SPECIAL
INVESTIGATIVE UNITS OR CONTRACTS. (a) Each managed care
organization that provides or arranges for the provision of health
care services to an individual under a government-funded program,
including the Medicaid program and the child health plan program,
shall:
(1) establish and maintain a special investigative
unit within the managed care organization to investigate fraudulent
claims and other types of program abuse by recipients and service
providers; or
(2) contract with another entity for the investigation
of fraudulent claims and other types of program abuse by recipients
and service providers.
(b) Each managed care organization subject to this section
shall adopt a plan to prevent and reduce fraud and abuse and
annually file that plan with the commission's office of inspector
general for approval. The plan must include:
(1) a description of the managed care organization's
procedures for detecting and investigating possible acts of fraud
or abuse;
(2) a description of the managed care organization's
procedures for the mandatory reporting of possible acts of fraud or
abuse to the commission's office of inspector general;
(3) a description of the managed care organization's
procedures for educating and training personnel to prevent fraud
and abuse;
(4) the name, address, telephone number, and fax
number of the individual responsible for carrying out the plan;
(5) a description or chart outlining the
organizational arrangement of the managed care organization's
personnel responsible for investigating and reporting possible
acts of fraud or abuse;
(6) a detailed description of the results of
investigations of fraud and abuse conducted by the managed care
organization's special investigative unit or the entity with which
the managed care organization contracts under Subsection (a)(2);
and
(7) provisions for maintaining the confidentiality of
any patient information relevant to an investigation of fraud or
abuse.
(c) If a managed care organization contracts for the
investigation of fraudulent claims and other types of program abuse
by recipients and service providers under Subsection (a)(2), the
managed care organization shall file with the commission's office
of inspector general:
(1) a copy of the written contract;
(2) the names, addresses, telephone numbers, and fax
numbers of the principals of the entity with which the managed care
organization has contracted; and
(3) a description of the qualifications of the
principals of the entity with which the managed care organization
has contracted.
(d) The commission's office of inspector general may review
the records of a managed care organization to determine compliance
with this section.
(e) The commissioner shall adopt rules as necessary to
accomplish the purposes of this section.
(b) A managed care organization subject to Section 531.113,
Government Code, as added by this section, shall comply with the
requirements of that section not later than September 1, 2004.
SECTION 2.26. (a) Subchapter C, Chapter 531, Government
Code, is amended by adding Section 531.114 to read as follows:
Sec. 531.114. FINANCIAL ASSISTANCE FRAUD. (a) For
purposes of establishing or maintaining the eligibility of a person
and the person's family for financial assistance under Chapter 31,
Human Resources Code, or for purposes of increasing or preventing a
reduction in the amount of that assistance, a person may not
intentionally:
(1) make a statement that the person knows is false or
misleading;
(2) misrepresent, conceal, or withhold a fact; or
(3) knowingly misrepresent a statement as being true.
(b) If after an investigation the commission determines
that a person violated Subsection (a), the commission shall:
(1) notify the person of the alleged violation not
later than the 30th day after the date the commission completes the
investigation and provide the person with an opportunity for a
hearing on the matter; or
(2) refer the matter to the appropriate prosecuting
attorney for prosecution.
(c) If a person waives the right to a hearing or if a hearing
officer at an administrative hearing held under this section
determines that a person violated Subsection (a), the person is
ineligible to receive financial assistance as provided by
Subsection (d). A person who a hearing officer determines violated
Subsection (a) may appeal that determination by filing a petition
in the district court in the county in which the violation occurred
not later than the 30th day after the date the hearing officer made
the determination.
(d) A person determined under Subsection (c) to have
violated Subsection (a) is not eligible for financial assistance:
(1) before the first anniversary of the date of that
determination, if the person has no previous violations; and
(2) permanently, if the person was previously
determined to have committed a violation.
(e) If a person is convicted of a state or federal offense
for conduct described by Subsection (a), or if the person is granted
deferred adjudication or placed on community supervision for that
conduct, the person is permanently disqualified from receiving
financial assistance.
(f) This section does not affect the eligibility for
financial assistance of any other member of the household of a
person ineligible as a result of Subsection (d) or (e).
(g) The commission shall adopt rules as necessary to
implement this section.
(b) Section 531.114, Government Code, as added by this
section, applies only to conduct occurring on or after the
effective date of this section. Conduct occurring before the
effective date of this section is governed by the law in effect on
the date the conduct occurred, and the former law is continued in
effect for that purpose.
SECTION 2.27. Subchapter C, Chapter 531, Government Code,
is amended by adding Section 531.115 to read as follows:
Sec. 531.115. FEDERAL FELONY MATCH. The commission shall
develop and implement a system to cross-reference data collected
for the programs listed under Section 531.008(c) with the list of
fugitive felons maintained by the federal government.
SECTION 2.28. Subchapter C, Chapter 531, Government Code,
is amended by adding Section 531.116 to read as follows:
Sec. 531.116. COMPLIANCE WITH LAW PROHIBITING
SOLICITATION. A provider who furnishes services under the Medicaid
program or child health plan program is subject to Chapter 102,
Occupations Code, and the provider's compliance with that chapter
is a condition of the provider's eligibility to participate as a
provider under those programs.
SECTION 2.29. Subchapter A, Chapter 533, Government Code,
is amended by adding Section 533.0025 to read as follows:
Sec. 533.0025. DELIVERY OF SERVICES. (a) In this section,
"medical assistance" has the meaning assigned by Section 32.003,
Human Resources Code.
(b) Except as otherwise provided by this section and
notwithstanding any other law, the commission shall provide medical
assistance for acute care through the most cost-effective model of
Medicaid managed care as determined by the commission. If the
commission determines that it is more cost-effective, the
commission may provide medical assistance for acute care in a
certain part of this state or to a certain population of recipients
using:
(1) a health maintenance organization model,
including the acute care portion of Medicaid Star + Plus pilot
programs;
(2) a primary care case management model;
(3) a prepaid health plan model;
(4) an exclusive provider organization model; or
(5) another Medicaid managed care model or
arrangement.
(c) In determining whether a model or arrangement described
by Subsection (b) is more cost-effective, the commissioner must
consider:
(1) the scope, duration, and types of health benefits
or services to be provided in a certain part of this state or to a
certain population of recipients;
(2) administrative costs necessary to meet federal and
state statutory and regulatory requirements;
(3) the anticipated effect of market competition
associated with the configuration of Medicaid service delivery
models determined by the commission; and
(4) the gain or loss to this state of a tax collected
under Article 4.11, Insurance Code.
(d) If the commission determines that it is not more
cost-effective to use a Medicaid managed care model to provide
certain types of medical assistance for acute care in a certain area
or to certain medical assistance recipients as prescribed by this
section, the commission shall provide medical assistance for acute
care through a traditional fee-for-service arrangement.
(e) Notwithstanding Subsection (b)(1), the commission may
not provide medical assistance using a health maintenance
organization model, including Medicaid Star + Plus pilot programs,
in Cameron County, Hidalgo County, Webb County, or Maverick County.
SECTION 2.30. Subchapter A, Chapter 533, Government Code,
is amended by adding Section 533.0132 to read as follows:
Sec. 533.0132. STATE TAXES. The commission shall ensure
that any experience rebate or profit sharing for managed care
organizations is calculated by treating premium, maintenance, and
other taxes under the Insurance Code and any other taxes payable to
this state as allowable expenses for purposes of determining the
amount of the experience rebate or profit sharing.
SECTION 2.31. Sections 403.105(a) and (c), Government Code,
are amended to read as follows:
(a) The permanent fund for health and tobacco education and
enforcement is a dedicated account in the general revenue fund. The
fund is composed of:
(1) money transferred to the fund at the direction of
the legislature;
(2) gifts and grants contributed to the fund; and
(3) the available earnings of the fund determined in
accordance with Section 403.1068.
(c) The available earnings of the fund may be appropriated
to the Texas Department of Health for:
(1) programs to reduce the use of cigarettes and
tobacco products in this state, including:
(A) [(1)] smoking cessation programs;
(B) [(2)] enforcement of Subchapters H, K, and N,
Chapter 161, Health and Safety Code, or other laws relating to
distribution of cigarettes or tobacco products to minors or use of
cigarettes or tobacco products by minors;
(C) [(3)] public awareness programs relating to
use of cigarettes and tobacco products, including general
educational programs and programs directed toward youth; and
(D) [(4)] specific programs for communities
traditionally targeted, by advertising and other means, by
companies that sell cigarettes or tobacco products; and
(2) the provision of coordinated essential public
health services administered by the department.
SECTION 2.32. The heading to Section 403.105, Government
Code, is amended to read as follows:
Sec. 403.105. PERMANENT FUND FOR HEALTH AND TOBACCO
EDUCATION AND ENFORCEMENT.
SECTION 2.33. Section 403.1055(c), Government Code, is
amended to read as follows:
(c) The available earnings of the fund may be appropriated
to:
(1) the Texas Department of Health for the purpose of:
(A) developing and demonstrating cost-effective
prevention and intervention strategies for improving health
outcomes for children and the public;
(B) [and for] providing grants to local
communities to address specific public health priorities,
including sickle cell anemia, diabetes, high blood pressure,
cancer, heart attack, stroke, keloid tissue and scarring, and
respiratory disease;[,] and
(C) [for] providing grants to local communities
for essential public health services as defined in the Health and
Safety Code; and
(2) the Interagency Council on Early Childhood
Intervention to provide intervention services for children with
developmental delay or who have a high probability of developing
developmental delay and the families of those children.
SECTION 2.34. (a) Effective September 1, 2003, Section
466.408(b), Government Code, is amended to read as follows:
(b) If a claim is not made for prize money on or before the
180th day after the date on which the winner was selected, the prize
money shall be used in the following order of priority:
(1) $10 million in prize money each year shall be
deposited to the credit of the Texas Department of Health
state-owned multicategorical teaching hospital account, which is
an account in the general revenue fund;
(2) $5 million in prize money each year shall be used
by the Health and Human Services Commission to support the
provision of inpatient hospital services in hospitals located in
the 15 counties that comprise the Texas-Mexico border area, with
payment for those services to be not less than the amount
established under the Tax Equity and Fiscal Responsibility Act of
1982 (TEFRA) cost reimbursement methodology for the hospital
providing the services;
(3) $8 million in prize money each year shall be
deposited in the tertiary care facility account and may be
appropriated only for purposes specified in Chapter 46 or 61,
Health and Safety Code;
(4) an additional $10 million in prize money each year
shall be deposited to the credit of the Texas Department of Health
state-owned multicategorical teaching hospital account; and
(5) in addition to the amount specified by Subdivision
(3), all remaining prize money subject to this section shall be
deposited in the tertiary care facility account and may be
appropriated only for purposes specified in Chapter 46 or 61,
Health and Safety Code [shall be deposited to the credit of the
Texas Department of Health state-owned multicategorical teaching
hospital account or the tertiary care facility account as follows:
[(1) not more than $40 million in prize money each
biennium may be deposited to or appropriated from the Texas
Department of Health state-owned multicategorical teaching
hospital account, which is an account in the general revenue fund;
and
[(2) all prize money subject to this section in excess
of $40 million each biennium shall be deposited in the tertiary care
facility account. Money deposited in the tertiary care facility
account may only be appropriated to the department for purposes
specified in Chapter 46 or 61, Health and Safety Code].
(b) Effective September 1, 2005, Section 466.408(b),
Government Code, is reenacted to read as follows:
(b) If a claim is not made for prize money on or before the
180th day after the date on which the winner was selected, the prize
money shall be deposited to the credit of the Texas Department of
Health state-owned multicategorical teaching hospital account or
the tertiary care facility account as follows:
(1) not more than $40 million in prize money each
biennium may be deposited to or appropriated from the Texas
Department of Health state-owned multicategorical teaching
hospital account, which is an account in the general revenue fund;
and
(2) all prize money subject to this section in excess
of $40 million each biennium shall be deposited in the tertiary care
facility account. Money deposited in the tertiary care facility
account may only be appropriated to the department for purposes
specified in Chapter 46 or 61, Health and Safety Code.
(c) It is the intent of the legislature that the Health and
Human Services Commission, to the extent possible, shall take all
action necessary to provide the highest level of possible financial
support to providing community care services and support for the
aging, as appropriate to reflect the legislature's priority for
those programs reflected in the General Appropriations Act.
SECTION 2.35. Section 533.005, Government Code, is amended
by adding Subdivision (11) to read as follows:
(11) A managed care organization shall pay an
out-of-network provider for emergency and all poststabilization
services at either:
(A) the Medicaid allowable rate for such services
as determined by the department in accordance with Sections 32.028
and 32.0281, Human Resources Code; or
(B) the highest contractual rate paid by the
managed care organization to an in-network provider.
SECTION 2.36. Section 533.012(a), Government Code, is
amended to read as follows:
(a) Each managed care organization contracting with the
commission under this chapter shall submit to the commission:
(1) a description of any financial or other business
relationship between the organization and any subcontractor
providing health care services under the contract;
(2) a copy of each type of contract between the
organization and a subcontractor relating to the delivery of or
payment for health care services; [and]
(3) a description of the fraud control program used by
any subcontractor that delivers health care services; and
(4) a description and breakdown of all funds paid to
the managed care organization, including a health maintenance
organization, primary care case management, and an exclusive
provider organization, necessary for the commission to determine
the actual cost of administering the managed care plan.
SECTION 2.37. The heading to Subchapter C, Chapter 531,
Government Code, is amended to read as follows:
SUBCHAPTER C. MEDICAID AND OTHER HEALTH AND HUMAN SERVICES
[WELFARE] FRAUD, ABUSE, OR OVERCHARGES
SECTION 2.37A. Subchapter C, Chapter 531, Government Code,
is amended by adding Section 531.1011 to read as follows:
Sec. 531.1011. DEFINITIONS. For purposes of this
subchapter:
(1) "Fraud" means an intentional deception or
misrepresentation made by a person with the knowledge that the
deception could result in some unauthorized benefit to that person
or some other person, including any act that constitutes fraud
under applicable federal or state law.
(2) "Hold on payment" means the temporary denial of
reimbursement under the Medicaid program for items or services
furnished by a specified provider.
(3) "Practitioner" means a physician or other
individual licensed under state law to practice the individual's
profession.
(4) "Program exclusion" means the suspension of a
provider from being authorized under the Medicaid program to
request reimbursement for items or services furnished by that
specific provider.
(5) "Provider" means a person, firm, partnership,
corporation, agency, association, institution, or other entity
that was or is approved by the commission to:
(A) provide medical assistance under contract or
provider agreement with the commission; or
(B) provide third-party billing vendor services
under a contract or provider agreement with the commission.
SECTION 2.38. (a) Subchapter B, Chapter 12, Health and
Safety Code, is amended by adding Sections 12.0111 and 12.0112 to
read as follows:
Sec. 12.0111. LICENSING FEES. (a) This section applies in
relation to each licensing program administered by the department
or administered by a regulatory board or other agency that is under
the jurisdiction of the department or administratively attached to
the department. In this section and Section 12.0112, "license"
includes a permit, certificate, or registration.
(b) Notwithstanding other law, the department shall charge
a fee for issuing or renewing a license that is in an amount
designed to allow the department to recover from its license
holders all of the department's direct and indirect costs in
administering and enforcing the applicable licensing program.
(c) Notwithstanding other law, each regulatory board or
other agency that is under the jurisdiction of the department or
administratively attached to the department and that issues
licenses shall charge a fee for issuing or renewing a license that
is in an amount designed to allow the department and the regulatory
board or agency to recover from the license holders all of the
direct and indirect costs to the department and to the regulatory
board or agency in administering and enforcing the applicable
licensing program.
(d) If H.B. 1930 or S.B. 1556, Acts of the 78th Legislature,
Regular Session, 2003, is enacted and becomes law, this section
does not apply to a person regulated under Chapter 773.
Sec. 12.0112. TERM OF LICENSE. Notwithstanding other law,
the term of each license issued by the department, or by a
regulatory board or other agency that is under the jurisdiction of
the department or administratively attached to the department, is
two years.
(b) Section 12.0111, Health and Safety Code, as added by
this section, applies only to a license, permit, certificate, or
registration issued or renewed by the Texas Department of Health,
or by a regulatory board or other agency that is under the
jurisdiction of the department or administratively attached to the
department, on or after January 1, 2004.
(c) Section 12.0112, Health and Safety Code, as added by
this section, applies only to a license, permit, certificate, or
registration that is issued or renewed on or after January 1, 2005.
SECTION 2.39. Sections 62.055(a), (d), and (e), Health and
Safety Code, are amended to read as follows:
(a) It is the intent of the legislature that the commission
maximize the use of private resources in administering the child
health plan created under this chapter. In administering the child
health plan, the commission may contract with[:
[(1)] a third party administrator to provide
enrollment and related services under the state child health plan[;
or
[(2) another entity, including the Texas Healthy Kids
Corporation under Subchapter F, Chapter 109, to obtain health
benefit plan coverage for children who are eligible for coverage
under the state child health plan].
(d) A third party administrator [or other entity] may
perform tasks under the contract that would otherwise be performed
by the Texas Department of Health or Texas Department of Human
Services under this chapter.
(e) The commission shall:
(1) retain all policymaking authority over the state
child health plan;
(2) procure all contracts with a third party
administrator [or other entity] through a competitive procurement
process in compliance with all applicable federal and state laws or
regulations; and
(3) ensure that all contracts with child health plan
providers under Section 62.155 are procured through a competitive
procurement process in compliance with all applicable federal and
state laws or regulations.
SECTION 2.40. (a) Subchapter B, Chapter 62, Health and
Safety Code, is amended by adding Section 62.0582 to read as
follows:
Sec. 62.0582. THIRD-PARTY BILLING VENDORS. (a) A
third-party billing vendor may not submit a claim with the
commission for payment on behalf of a health plan provider under the
program unless the vendor has entered into a contract with the
commission authorizing that activity.
(b) To the extent practical, the contract shall contain
provisions comparable to the provisions contained in contracts
between the commission and health plan providers, with an emphasis
on provisions designed to prevent fraud or abuse under the program.
At a minimum, the contract must require the third-party billing
vendor to:
(1) provide documentation of the vendor's authority to
bill on behalf of each provider for whom the vendor submits claims;
(2) submit a claim in a manner that permits the
commission to identify and verify the vendor, any computer or
telephone line used in submitting the claim, any relevant user
password used in submitting the claim, and any provider number
referenced in the claim; and
(3) subject to any confidentiality requirements
imposed by federal law, provide the commission, the office of the
attorney general, or authorized representatives with:
(A) access to any records maintained by the
vendor, including original records and records maintained by the
vendor on behalf of a provider, relevant to an audit or
investigation of the vendor's services or another function of the
commission or office of attorney general relating to the vendor;
and
(B) if requested, copies of any records described
by Paragraph (A) at no charge to the commission, the office of the
attorney general, or authorized representatives.
(c) On receipt of a claim submitted by a third-party billing
vendor, the commission shall send a remittance notice directly to
the provider referenced in the claim. The notice must:
(1) include detailed information regarding the claim
submitted on behalf of the provider; and
(2) require the provider to review the claim for
accuracy and notify the commission promptly regarding any errors.
(d) The commission shall take all action necessary,
including any modifications of the commission's claims processing
system, to enable the commission to identify and verify a
third-party billing vendor submitting a claim for payment under the
program, including identification and verification of any computer
or telephone line used in submitting the claim, any relevant user
password used in submitting the claim, and any provider number
referenced in the claim.
(e) The commission shall audit each third-party billing
vendor subject to this section at least annually to prevent fraud
and abuse under the program.
(b) Section 62.0582, Health and Safety Code, as added by
this section, takes effect January 1, 2004.
SECTION 2.41. Section 62.002(4), Health and Safety Code, is
amended to read as follows:
(4) "Net family income" means the amount of income
established for a family after reduction for offsets, not to exceed
5 percent of the amount of net family income, for expenses such as
child care and work-related expenses[, in accordance with standards
applicable under the Medicaid program].
SECTION 2.42. Sections 62.101(b) and (c), Health and Safety
Code, are amended to read as follows:
(b) Unless different income eligibility levels are
prescribed by the General Appropriations Act, the [The] commission
shall establish income eligibility levels consistent with Title
XXI, Social Security Act (42 U.S.C. Section 1397aa et seq.), as
amended, and any other applicable law or regulations, and subject
to the availability of appropriated money, so that a child who is
younger than 19 years of age and whose net family income is at or
below 165 [200] percent of the federal poverty level is eligible for
health benefits coverage under the program.
(c) The commissioner shall evaluate enrollment levels and
program impact every six months during the first 12 months of
implementation and at least annually thereafter and shall submit a
finding of fact to the Legislative Budget Board and the Governor's
Office of Budget and Planning as to the adequacy of funding and the
ability of the program to sustain enrollment at the eligibility
level established by Subsection (b). In the event that
appropriated money is insufficient to sustain enrollment at the
authorized eligibility level or enrollment exceeds the number of
children authorized to be enrolled in the child health plan under
the General Appropriations Act, the commissioner shall:
(1) suspend enrollment in the child health plan;
(2) establish a waiting list for applicants for
coverage; and
(3) establish a process for periodic or continued
enrollment of applicants in the child health plan program as the
availability of money allows.
SECTION 2.43. Section 62.1015(b), Health and Safety Code,
is amended to read as follows:
(b) A child of an employee of a charter school, school
district, other educational district whose employees are members of
the Teacher Retirement System of Texas, or regional education
service center may be enrolled in health benefits coverage under
the child health plan. A child enrolled in the child health plan
under this section:
(1) participates in the same manner as any other child
enrolled in the child health plan; and
(2) is subject to the same requirements and
restrictions relating to income eligibility, continuous coverage,
and enrollment, including applicable waiting periods, as any other
child enrolled in the child health plan.
SECTION 2.44. Section 62.102, Health and Safety Code, is
amended to read as follows:
Sec. 62.102. CONTINUOUS COVERAGE. The commission shall
provide that an individual who is determined to be eligible for
coverage under the child health plan remains eligible for those
benefits until the earlier of:
(1) the end of a period, not to exceed 180 days [12
months], following the date of the eligibility determination; or
(2) the individual's 19th birthday.
SECTION 2.45. Section 62.151, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsections (e) and
(f) to read as follows:
(b) In developing the covered benefits, the commission
shall consider the health care needs of healthy children and
children with special health care needs. At the time the child
health plan program is first implemented, the child health plan
must provide a benefits package that is actuarially equivalent, as
determined in accordance with 42 U.S.C. Section 1397cc, to the
basic plan for active state employees offered through health
maintenance organizations under Chapter 1551, Insurance Code [the
Texas Employees Uniform Group Insurance Benefits Act (Article
3.50-2, Vernon's Texas Insurance Code)], as determined by the
commission. [The child health plan must provide at least the
covered benefits described by the recommended benefits package
described for a state-designed child health plan by the Texas House
of Representatives Committee on Public Health "CHIP" Interim Report
to the Seventy-Sixth Texas Legislature dated December, 1998, and
the Senate Interim Committee on Children's Health Insurance Report
to the Seventy-Sixth Texas Legislature dated December 1, 1998.]
(e) In developing the covered benefits, the commission
shall seek input from the Public Assistance Health Benefit Review
and Design Committee established under Section 531.067, Government
Code.
(f) The commission, if it determines the policy to be
cost-effective, may ensure that an enrolled child does not, unless
authorized by the commission in consultation with the child's
attending physician or advanced practice nurse, receive under the
child health plan:
(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.
SECTION 2.46. Section 62.153, Health and Safety Code, is
amended by amending Subsection (b) and adding Subsection (d) to
read as follows:
(b) Subject to Subsection (d), cost-sharing [Cost-sharing]
provisions adopted under this section shall ensure that families
with higher levels of income are required to pay progressively
higher percentages of the cost of the plan.
(d) Cost-sharing provisions adopted under this section may
be determined based on the maximum level authorized under federal
law and applied to income levels in a manner that minimizes
administrative costs.
SECTION 2.47. (a) The heading to Section 62.154, Health and
Safety Code, is amended to read as follows:
Sec. 62.154. WAITING PERIOD; CROWD OUT.
(b) Sections 62.154(a), (b), and (d), Health and Safety
Code, are amended to read as follows:
(a) To the extent permitted under Title XXI of the Social
Security Act (42 U.S.C. Section 1397aa et seq.), as amended, and any
other applicable law or regulations, the child health plan must
include a waiting period. The child health plan [and] may include
copayments and other provisions intended to discourage:
(1) employers and other persons from electing to
discontinue offering coverage for children under employee or other
group health benefit plans; and
(2) individuals with access to adequate health benefit
plan coverage, other than coverage under the child health plan,
from electing not to obtain or to discontinue that coverage for a
child.
(b) A child is not subject to a waiting period adopted under
Subsection (a) if:
(1) the family lost coverage for the child as a result
of:
(A) termination of employment because of a layoff
or business closing;
(B) termination of continuation coverage under
the Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L.
No. 99-272);
(C) change in marital status of a parent of the
child;
(D) termination of the child's Medicaid
eligibility because:
(i) the child's family's earnings or
resources increased; or
(ii) the child reached an age at which
Medicaid coverage is not available; or
(E) a similar circumstance resulting in the
involuntary loss of coverage;
(2) the family terminated health benefits plan
coverage for the child because the cost to the child's family for
the coverage exceeded 10 percent of the family's net income; [or]
(3) the child has access to group-based health
benefits plan coverage and is required to participate in the health
insurance premium payment reimbursement program administered by
the commission; or
(4) the commission has determined that other grounds
exist for a good cause exception.
(d) The waiting period required by Subsection (a) must[:
[(1)] extend for a period of 90 days after the [last]
date on which the applicant is enrolled under the child health plan
[was covered under a health benefits plan; and
[(2) apply to a child who was covered by a health
benefits plan at any time during the 90 days before the date of
application for coverage under the child health plan, other than a
child who was covered under a health benefits plan provided under
Chapter 109].
SECTION 2.48. Sections 62.155(c) and (d), Health and Safety
Code, are amended to read as follows:
(c) In selecting a health plan provider, the commission:
(1) may give preference to a person who provides
similar coverage under the Medicaid program [or through the Texas
Healthy Kids Corporation]; and
(2) shall provide for a choice of not more than [at
least] two health plan providers in each service [metropolitan]
area.
(d) The commissioner may authorize an exception to
Subsection (c)(2) if it is cost-effective to do so and there are
more than two [is only one] acceptable applicants [applicant] to
become [a] health plan providers [provider] in the service
[metropolitan] area.
SECTION 2.49. Subchapter D, Chapter 62, Health and Safety
Code, is amended by adding Section 62.158 to read as follows:
Sec. 62.158. STATE TAXES. The commission shall ensure that
any experience rebate or profit-sharing for health plan providers
under the child health plan is calculated by treating premium,
maintenance, and other taxes under the Insurance Code and any other
taxes payable to this state as allowable expenses for purposes of
determining the amount of the experience rebate or profit-sharing.
SECTION 2.50. Section 142.003(a), Health and Safety Code,
is amended to read as follows:
(a) The following persons need not be licensed under this
chapter:
(1) a physician, dentist, registered nurse,
occupational therapist, or physical therapist licensed under the
laws of this state who provides home health services to a client
only as a part of and incidental to that person's private office
practice;
(2) a registered nurse, licensed vocational nurse,
physical therapist, occupational therapist, speech therapist,
medical social worker, or any other health care professional as
determined by the department who provides home health services as a
sole practitioner;
(3) a registry that operates solely as a clearinghouse
to put consumers in contact with persons who provide home health,
hospice, or personal assistance services and that does not maintain
official client records, direct client services, or compensate the
person who is providing the service;
(4) an individual whose permanent residence is in the
client's residence;
(5) an employee of a person licensed under this
chapter who provides home health, hospice, or personal assistance
services only as an employee of the license holder and who receives
no benefit for providing the services, other than wages from the
license holder;
(6) a home, nursing home, convalescent home, assisted
living facility, special care facility, or other institution for
individuals who are elderly or who have disabilities that provides
home health or personal assistance services only to residents of
the home or institution;
(7) a person who provides one health service through a
contract with a person licensed under this chapter;
(8) a durable medical equipment supply company;
(9) a pharmacy or wholesale medical supply company
that does not furnish services, other than supplies, to a person at
the person's house;
(10) a hospital or other licensed health care facility
that provides home health or personal assistance services only to
inpatient residents of the hospital or facility;
(11) a person providing home health or personal
assistance services to an injured employee under Title 5, Labor
Code;
(12) a visiting nurse service that:
(A) is conducted by and for the adherents of a
well-recognized church or religious denomination; and
(B) provides nursing services by a person exempt
from licensing by Section 301.004, Occupations Code, because the
person furnishes nursing care in which treatment is only by prayer
or spiritual means;
(13) an individual hired and paid directly by the
client or the client's family or legal guardian to provide home
health or personal assistance services;
(14) a business, school, camp, or other organization
that provides home health or personal assistance services,
incidental to the organization's primary purpose, to individuals
employed by or participating in programs offered by the business,
school, or camp that enable the individual to participate fully in
the business's, school's, or camp's programs;
(15) a person or organization providing
sitter-companion services or chore or household services that do
not involve personal care, health, or health-related services;
(16) a licensed health care facility that provides
hospice services under a contract with a hospice;
(17) a person delivering residential acquired immune
deficiency syndrome hospice care who is licensed and designated as
a residential AIDS hospice under Chapter 248; [or]
(18) the Texas Department of Criminal Justice; or
(19) a person that provides services under a home and
community-based services waiver program for persons with mental
retardation adopted in accordance with Section 1915(c) of the
federal Social Security Act (42 U.S.C. Section 1396n), as amended,
and that is funded wholly or partly by the Texas Department of
Mental Health and Mental Retardation and monitored by that
department or by a designated local authority in accordance with
standards adopted by that department.
SECTION 2.51. Section 142.009(j), Health and Safety Code,
is amended to read as follows:
(j) Except as provided by Subsections (h)[, (i),] and (l),
an on-site survey must be conducted within 18 months after a survey
for an initial license. After that time, an on-site survey must be
conducted at least every 36 months.
SECTION 2.52. (a) Section 242.047, Health and Safety Code,
is amended to read as follows:
Sec. 242.047. ACCREDITATION REVIEW TO SATISFY [INSTEAD OF]
INSPECTION OR CERTIFICATION REQUIREMENTS. (a) The department
shall accept an annual accreditation review from the Joint
Commission on Accreditation of Health Organizations for a nursing
home instead of an inspection for renewal of a license under Section
242.033 and in satisfaction of the requirements for certification
by the department for participation in the medical assistance
program under Chapter 32, Human Resources Code, and the federal
Medicare program, but only if:
(1) the nursing home is accredited by the commission
under the commission's long-term care standards;
(2) the commission maintains an annual inspection or
review program that, for each nursing home, meets the department's
applicable minimum standards as confirmed by the board;
(3) the commission conducts an annual on-site
inspection or review of the home; [and]
(4) the nursing home submits to the department a copy
of its annual accreditation review from the commission in addition
to the application, fee, and any report required for renewal of a
license or for certification, as applicable; and
(5) the department has:
(A) determined whether a waiver or authorization
from a federal agency is necessary under federal law, including for
federal funding purposes, before the department accepts an annual
accreditation review from the joint commission:
(i) instead of an inspection for license
renewal purposes;
(ii) as satisfying the requirements for
certification by the department for participation in the medical
assistance program; or
(iii) as satisfying the requirements for
certification by the department for participation in the federal
Medicare program; and
(B) obtained any necessary federal waivers or
authorizations.
(b) The department shall coordinate its licensing and
certification activities with the commission.
(c) The department and the commission shall sign a
memorandum of agreement to implement this section. The memorandum
must provide that if all parties to the memorandum do not agree in
the development, interpretation, and implementation of the
memorandum, any area of dispute is to be resolved by the board.
(d) Except as specifically provided by this section, this
[This] section does not limit the department in performing any
duties and inspections authorized by this chapter or under any
contract relating to the medical assistance program under Chapter
32, Human Resources Code, and Titles XVIII and XIX of the Social
Security Act (42 U.S.C. Sections 1395 et seq. and 1396 et seq.),
including authority to take appropriate action relating to an
institution, such as closing the institution.
(e) This section does not require a nursing home to obtain
accreditation from the commission.
(b) Not later than October 1, 2003, the Texas Department of
Human Services shall:
(1) determine whether a waiver or authorization from a
federal agency is necessary under federal law, including for
federal funding purposes, before the department may accept an
annual accreditation review from the Joint Commission on
Accreditation of Health Organizations for a nursing home:
(A) instead of an inspection for purposes of
renewing a nursing home license under Chapter 242, Health and
Safety Code;
(B) as satisfying the requirements for
certification by the department for participation in the medical
assistance program under Chapter 32, Human Resources Code; and
(C) as satisfying the requirements for
certification by the department for participation in the federal
Medicare program; and
(2) if the department determines that a waiver or
authorization is necessary, request any required waivers or
authorizations that the department may possibly obtain under
federal law.
(c) Not later than December 1, 2003, the Texas Department of
Human Services shall report its progress under Subsection (b) of
this section to the governor and to the presiding officer of each
house of the legislature.
SECTION 2.53. (a) Section 242.063(d), Health and Safety
Code, is amended to read as follows:
(d) A [Notwithstanding Chapter 15, Civil Practice and
Remedies Code, or Section 65.023, Civil Practice and Remedies Code,
a] suit for a temporary restraining order or other injunctive
relief must [may] be brought in [Travis County or in] the county in
which the alleged violation occurs.
(b) Section 242.063(e), Health and Safety Code, is
repealed.
(c) The changes in law made by this section to Section
242.063(d), Health and Safety Code, apply only to a suit filed on or
after the effective date of this section. A suit filed before the
effective date of this section is covered by the law in effect when
the suit was filed, and that law is continued in effect for that
purpose.
SECTION 2.54. Section 242.065(b), Health and Safety Code,
is amended to read as follows:
(b) In determining the amount of a penalty to be awarded
under this section, the trier of fact shall consider:
(1) the seriousness of the violation[, including the
nature, circumstances, extent, and gravity of the violation and the
hazard or potential hazard created by the violation to the health or
safety of a resident];
(2) the history of violations committed by the person
or the person's affiliate, employee, or controlling person;
(3) the amount necessary to deter future violations;
(4) the efforts made to correct the violation;
(5) any misrepresentation made to the department or to
another person regarding:
(A) the quality of services rendered or to be
rendered to residents;
(B) the compliance history of the institution or
any institutions owned or controlled by an owner or controlling
person of the institution; or
(C) the identity of an owner or controlling
person of the institution;
(6) the culpability of the individual who committed
the violation; and
(7) any other matter that should, as a matter of
justice or equity, be considered.
SECTION 2.55. (a) Section 242.070, Health and Safety Code,
is amended to read as follows:
Sec. 242.070. APPLICATION OF OTHER LAW. The department may
not assess more than one monetary penalty under this chapter and
Chapter 32, Human Resources Code, for a violation arising out of the
same act or failure to act, except as provided by Section
242.0665(c). The [This section does not prohibit the] department
may assess the greater of [from assessing] a monetary penalty under
this chapter or [and] a monetary penalty under Chapter 32, Human
Resources Code, for the same act or failure to act.
(b) The change in law made by this section to Section
242.070, Health and Safety Code, applies only to a penalty assessed
on or after the effective date of this section.
SECTION 2.56. Section 242.601(a), Health and Safety Code,
is amended to read as follows:
(a) An institution must establish medication administration
procedures [to ensure that:
[(1) medications to be administered are checked
against the order of a physician, advanced practice nurse, or
physician assistant pursuant to protocols jointly developed with a
physician;
[(2) the resident is identified before the
administration of a medication;
[(3) each resident's clinical record includes an
individual medication record in which the dose of medication
administered is properly recorded by the person who administered
the medication;
[(4) medications and biologicals are prepared and
administered to a resident by the same individual, except under
unit-of-use package distribution systems; and
[(5) a medication prescribed for one resident is not
administered to any other person].
SECTION 2.57. Section 242.603(a), Health and Safety Code,
is amended to read as follows:
(a) An institution shall store medications under
appropriate conditions of sanitation, temperature, light,
moisture, ventilation, segregation, and security. [Poisons,
medications used externally, and medications taken internally
shall be stored on separate shelves or in separate cabinets.
Medication stored in a refrigerator containing other items shall be
kept in a separate compartment with appropriate security. The
institution shall store a medication in a locked area that must
remain locked unless an individual authorized to distribute the
medication is present.]
SECTION 2.58. (a) Section 245.004(a), Health and Safety
Code, is amended to read as follows:
(a) The following facilities need not be licensed under this
chapter:
(1) a hospital licensed under Chapter 241 (Texas
Hospital Licensing Law); or
(2) the office of a physician licensed under Subtitle
B, Title 3, Occupations Code, unless the office is used for the
purpose of performing more than 50 [300] abortions in any 12-month
period.
(b) An office of a physician required by Section 245.004(a),
Health and Safety Code, as amended by this section, to be licensed
under Chapter 245, Health and Safety Code, must obtain that license
not later than January 1, 2004.
SECTION 2.59. (a) Section 252.202(a), Health and Safety
Code, is amended to read as follows:
(a) A quality assurance fee is imposed on each facility for
which a license fee must be paid under Section 252.034, [and] on
each facility owned by a community mental health and mental
retardation center, as described by Subchapter A, Chapter 534, and
on each facility owned by the Texas Department of Mental Health and
Mental Retardation. The fee:
(1) is an amount established under Subsection (b)
multiplied by the number of patient days as determined in
accordance with Section 252.203;
(2) is payable monthly; and
(3) is in addition to other fees imposed under this
chapter.
(b) Not later than January 1, 2004, each facility owned by
the Texas Department of Mental Health and Mental Retardation shall
pay the quality assurance fee imposed by Section 252.202, Health
and Safety Code, as amended by this section, for patient days
occurring between September 1, 2002, and July 31, 2003.
SECTION 2.60. Section 252.203, Health and Safety Code, is
amended to read as follows:
Sec. 252.203. PATIENT DAYS. For each calendar day, a
facility shall determine the number of patient days by adding the
following:
(1) the number of patients occupying a facility bed
immediately before midnight of that day; and
(2) [the number of beds that are on hold on that day
and that have been placed on hold for a period not to exceed three
consecutive calendar days during which a patient is in a hospital;
and
[(3)] the number of beds that are on hold on that day
and that have been placed on hold for a period not to exceed three
consecutive calendar days during which a patient is on therapeutic
[home] leave.
SECTION 2.61. Section 252.204(b), Health and Safety Code,
is amended to read as follows:
(b) Each facility shall:
(1) not later than the 20th [10th] day after the last
day of a month file a report with the Health and Human Services
Commission or the department, as appropriate, stating the total
patient days for the month; and
(2) not later than the 30th day after the last day of
the month pay the quality assurance fee.
SECTION 2.62. Sections 252.207(a) and (c), Health and
Safety Code, are amended to read as follows:
(a) Subject to legislative appropriation and state and
federal law, the [The] Health and Human Services Commission may
[shall] use money in the quality assurance fund, together with any
federal money available to match that money[, to]:
(1) to offset [allowable] expenses incurred to
administer the quality assurance fee under this chapter [under the
Medicaid program]; [or]
(2) to increase reimbursement rates paid under the
Medicaid program to facilities or waiver programs for persons with
mental retardation operated in accordance with 42 U.S.C. Section
1396n(c) and its subsequent amendments; or
(3) for any other health and human services purpose
approved by the governor and Legislative Budget Board[, subject to
Section 252.206(d)].
(c) If money in the quality assurance fund is used to
increase a reimbursement rate in the Medicaid program, the [The]
Health and Human Services Commission shall ensure that the
reimbursement methodology used to set that rate describes how the
money in the fund will be used to increase the rate and [formula
devised under Subsection (b)] provides incentives to increase
direct care staffing and direct care wages and benefits.
SECTION 2.63. Section 253.008, Health and Safety Code, is
amended to read as follows:
Sec. 253.008. VERIFICATION OF EMPLOYABILITY. (a) Before a
facility, [or] an agency licensed under Chapter 142, or a person
exempt from licensing under Section 142.003(a)(19) may hire an
employee, the facility, [or] agency, or person shall search the
employee misconduct registry under this chapter and the nurse aide
registry maintained under the Omnibus Budget Reconciliation Act of
1987 (Pub. L. No. 100-203) to determine whether the applicant for
employment [person] is designated in either registry as having
abused, neglected, or exploited a resident or consumer of a
facility or an individual receiving services from an agency
licensed under Chapter 142 or from a person exempt from licensing
under Section 142.003(a)(19).
(b) A facility, [or] agency licensed under Chapter 142, or a
person exempt from licensing under Section 142.003(a)(19) may not
employ a person who is listed in either registry as having abused,
neglected, or exploited a resident or consumer of a facility or an
individual receiving services from an agency licensed under Chapter
142 or from a person exempt from licensing under Section
142.003(a)(19).
SECTION 2.64. Section 253.009(a), Health and Safety Code,
is amended to read as follows:
(a) Each facility, [or] each agency licensed under Chapter
142, and each person exempt from licensing under Section
142.003(a)(19) shall notify its employees in a manner prescribed by
the department:
(1) about the employee misconduct registry; and
(2) that an employee may not be employed if the
employee is listed in the registry.
SECTION 2.65. (a) Chapter 285, Health and Safety Code, is
amended by adding Subchapter M to read as follows:
SUBCHAPTER M. PROVISION OF SERVICES
Sec. 285.201. PROVISION OF MEDICAL AND HOSPITAL CARE. As
authorized by 8 U.S.C. Section 1621(d), this chapter affirmatively
establishes eligibility for a person who would otherwise be
ineligible under 8 U.S.C. Section 1621(a), provided that only local
funds are utilized for the provision of nonemergency public health
benefits. A person is not considered a resident of a governmental
entity or hospital district if the person attempted to establish
residence solely to obtain health care assistance.
(b) This section takes effect immediately if this Act
receives a vote of two-thirds of all the members elected to each
house, as provided by Section 39, Article III, Texas Constitution.
If this Act does not receive the vote necessary for immediate
effect, this section takes effect September 1, 2003.
SECTION 2.66. Section 431.021, Health and Safety Code, is
amended to read as follows:
Sec. 431.021. PROHIBITED ACTS. The following acts and the
causing of the following acts within this state are unlawful and
prohibited:
(a) the introduction or delivery for introduction into
commerce of any food, drug, device, or cosmetic that is adulterated
or misbranded;
(b) the adulteration or misbranding of any food, drug,
device, or cosmetic in commerce;
(c) the receipt in commerce of any food, drug, device, or
cosmetic that is adulterated or misbranded, and the delivery or
proffered delivery thereof for pay or otherwise;
(d) the distribution in commerce of a consumer commodity, if
such commodity is contained in a package, or if there is affixed to
that commodity a label that does not conform to the provisions of
this chapter and of rules adopted under the authority of this
chapter; provided, however, that this prohibition shall not apply
to persons engaged in business as wholesale or retail distributors
of consumer commodities except to the extent that such persons:
(1) are engaged in the packaging or labeling of such
commodities; or
(2) prescribe or specify by any means the manner in
which such commodities are packaged or labeled;
(e) the introduction or delivery for introduction into
commerce of any article in violation of Section 431.084, 431.114,
or 431.115;
(f) the dissemination of any false advertisement;
(g) the refusal to permit entry or inspection, or to permit
the taking of a sample or to permit access to or copying of any
record as authorized by Sections 431.042-431.044; or the failure to
establish or maintain any record or make any report required under
Section 512(j), (l), or (m) of the federal Act, or the refusal to
permit access to or verification or copying of any such required
record;
(h) the manufacture within this state of any food, drug,
device, or cosmetic that is adulterated or misbranded;
(i) the giving of a guaranty or undertaking referred to in
Section 431.059, which guaranty or undertaking is false, except by
a person who relied on a guaranty or undertaking to the same effect
signed by, and containing the name and address of the person
residing in this state from whom the person received in good faith
the food, drug, device, or cosmetic; or the giving of a guaranty or
undertaking referred to in Section 431.059, which guaranty or
undertaking is false;
(j) the use, removal, or disposal of a detained or embargoed
article in violation of Section 431.048;
(k) the alteration, mutilation, destruction, obliteration,
or removal of the whole or any part of the labeling of, or the doing
of any other act with respect to a food, drug, device, or cosmetic,
if such act is done while such article is held for sale after
shipment in commerce and results in such article being adulterated
or misbranded;
(l)(1) forging, counterfeiting, simulating, or falsely
representing, or without proper authority using any mark, stamp,
tag, label, or other identification device authorized or required
by rules adopted under this chapter or the regulations promulgated
under the provisions of the federal Act;
(2) making, selling, disposing of, or keeping in
possession, control, or custody, or concealing any punch, die,
plate, stone, or other thing designed to print, imprint, or
reproduce the trademark, trade name, or other identifying mark,
imprint, or device of another or any likeness of any of the
foregoing on any drug or container or labeling thereof so as to
render such drug a counterfeit drug;
(3) the doing of any act that causes a drug to be a
counterfeit drug, or the sale or dispensing, or the holding for sale
or dispensing, of a counterfeit drug;
(m) the using by any person to the person's own advantage,
or revealing, other than to the commissioner, an authorized agent,
a health authority or to the courts when relevant in any judicial
proceeding under this chapter, of any information acquired under
the authority of this chapter concerning any method or process that
as a trade secret is entitled to protection;
(n) the using, on the labeling of any drug or device or in
any advertising relating to such drug or device, of any
representation or suggestion that approval of an application with
respect to such drug or device is in effect under Section 431.114 or
Section 505, 515, or 520(g) of the federal Act, as the case may be,
or that such drug or device complies with the provisions of such
sections;
(o) the using, in labeling, advertising or other sales
promotion of any reference to any report or analysis furnished in
compliance with Sections 431.042-431.044 or Section 704 of the
federal Act;
(p) in the case of a prescription drug distributed or
offered for sale in this state, the failure of the manufacturer,
packer, or distributor of the drug to maintain for transmittal, or
to transmit, to any practitioner licensed by applicable law to
administer such drug who makes written request for information as
to such drug, true and correct copies of all printed matter that is
required to be included in any package in which that drug is
distributed or sold, or such other printed matter as is approved
under the federal Act. Nothing in this subsection shall be
construed to exempt any person from any labeling requirement
imposed by or under other provisions of this chapter;
(q)(1) placing or causing to be placed on any drug or device
or container of any drug or device, with intent to defraud, the
trade name or other identifying mark, or imprint of another or any
likeness of any of the foregoing;
(2) selling, dispensing, disposing of or causing to be
sold, dispensed, or disposed of, or concealing or keeping in
possession, control, or custody, with intent to sell, dispense, or
dispose of, any drug, device, or any container of any drug or
device, with knowledge that the trade name or other identifying
mark or imprint of another or any likeness of any of the foregoing
has been placed thereon in a manner prohibited by Subdivision (1) of
this subsection; or
(3) making, selling, disposing of, causing to be made,
sold, or disposed of, keeping in possession, control, or custody,
or concealing with intent to defraud any punch, die, plate, stone,
or other thing designed to print, imprint, or reproduce the
trademark, trade name, or other identifying mark, imprint, or
device of another or any likeness of any of the foregoing on any
drug or container or labeling of any drug or container so as to
render such drug a counterfeit drug;
(r) dispensing or causing to be dispensed a different drug
in place of the drug ordered or prescribed without the express
permission in each case of the person ordering or prescribing;
(s) the failure to register in accordance with Section 510
of the federal Act, the failure to provide any information required
by Section 510(j) or (k) of the federal Act, or the failure to
provide a notice required by Section 510(j)(2) of the federal Act;
(t)(1) the failure or refusal to:
(A) comply with any requirement prescribed under
Section 518 or 520(g) of the federal Act; or
(B) furnish any notification or other material or
information required by or under Section 519 or 520(g) of the
federal Act;
(2) with respect to any device, the submission of any
report that is required by or under this chapter that is false or
misleading in any material respect;
(u) the movement of a device in violation of an order under
Section 304(g) of the federal Act or the removal or alteration of
any mark or label required by the order to identify the device as
detained;
(v) the failure to provide the notice required by Section
412(b) or 412(c), the failure to make the reports required by
Section 412(d)(1)(B), or the failure to meet the requirements
prescribed under Section 412(d)(2) of the federal Act;
(w) except as provided under Subchapter M of this chapter
and Section 562.1085, Occupations Code, the acceptance by a person
of an unused prescription or drug, in whole or in part, for the
purpose of resale, after the prescription or drug has been
originally dispensed, or sold;
(x) engaging in the wholesale distribution of drugs or
operating as a distributor or manufacturer of devices in this state
without filing a licensing statement with the commissioner as
required by Section 431.202 or having a license as required by
Section 431.272, as applicable;
(y) engaging in the manufacture of food in this state or
operating as a food wholesaler in this state without having a
license as required by Section 431.222; or
(z) unless approved by the United States Food and Drug
Administration pursuant to the federal Act, the sale, delivery,
holding, or offering for sale of a self-testing kit designed to
indicate whether a person has a human immunodeficiency virus
infection, acquired immune deficiency syndrome, or a related
disorder or condition.
SECTION 2.67. (a) Section 461.018(b), Health and Safety
Code, is amended to read as follows:
(b) The commission's program under Subsection (a) must
include:
(1) establishing and maintaining a list of webpages
and toll-free "800" telephone numbers of nonprofit entities that
[number to] provide crisis counseling and referral services to
families experiencing difficulty as a result of problem or
compulsive gambling;
(2) promoting public awareness regarding the
recognition and prevention of problem or compulsive gambling;
(3) facilitating, through in-service training and
other means, the availability of effective assistance programs for
problem or compulsive gamblers; and
(4) conducting studies to identify adults and
juveniles in this state who are, or who are at risk of becoming,
problem or compulsive gamblers.
(b) Section 466.251(b), Government Code, and Section
2001.417(b), Occupations Code, are repealed.
SECTION 2.68. Section 533.034, Health and Safety Code, is
amended to read as follows:
Sec. 533.034. AUTHORITY TO CONTRACT FOR COMMUNITY-BASED
SERVICES. (a) The department may cooperate, negotiate, and
contract with local agencies, hospitals, private organizations and
foundations, community centers, physicians, and other persons to
plan, develop, and provide community-based mental health and mental
retardation services.
(b) The department may adopt a schedule of initial and
annual renewal compliance fees for persons that provide services
under a home and community-based services waiver program for
persons with mental retardation adopted in accordance with Section
1915(c) of the federal Social Security Act (42 U.S.C. Section
1396n), as amended, and that is funded wholly or partly by the
department and monitored by the department or by a designated local
authority in accordance with standards adopted by the department.
This subsection expires September 1, 2005.
SECTION 2.69. Section 533.035, Health and Safety Code, is
amended by amending Subsection (c) and by adding Subsections (e),
(f), and (g) to read as follows:
(c) A local mental health and mental retardation authority,
with the department's approval, shall use the funds received under
Subsection (b) to ensure mental health, mental retardation, and
chemical dependency services are provided in the local service
area. The local authority shall consider public input, ultimate
cost-benefit, and client care issues to ensure consumer choice and
the best use of public money in:
(1) assembling a network of service providers; and
(2) [determining whether to become a provider of a
service or to contract that service to another organization; and
[(3)] making recommendations relating to the most
appropriate and available treatment alternatives for individuals
in need of mental health or mental retardation services.
(e) In assembling a network of service providers, a local
mental health and mental retardation authority may serve as a
provider of services only as a provider of last resort and only if
the authority demonstrates to the department that:
(1) the authority has made every reasonable attempt to
solicit the development of an available and appropriate provider
base that is sufficient to meet the needs of consumers in its
service area; and
(2) there is not a willing provider of the relevant
services in the authority's service area or in the county where the
provision of the services is needed.
(f) The department shall review the appropriateness of a
local mental health and mental retardation authority's status as a
service provider at least annually.
(g) The department, together with local mental health and
mental retardation authorities and other interested persons, shall
develop and implement a plan to privatize all services by
intermediate facilities for persons with mental retardation and all
related waiver services programs operated by an authority. The
transfer of services to private providers must occur on or before
August 31, 2004. The plan must provide criteria that:
(1) promote the transition of services to private
providers in a manner that causes the least disruption practicable
to the consumers of those services;
(2) ensure the continuation of services at the same
level of service provided before the transfer;
(3) provide for consumer choice as appropriate and as
required by rule; and
(4) require local mental health and mental retardation
authorities to implement the privatization of services in a
fiscally responsible manner.
SECTION 2.70. Subchapter B, Chapter 533, Health and Safety
Code, is amended by adding Section 533.0354 to read as follows:
Sec. 533.0354. DISEASE MANAGEMENT PRACTICES AND JAIL
DIVERSION MEASURES OF LOCAL MENTAL HEALTH AUTHORITIES. (a) A local
mental health authority shall provide assessment services, crisis
services, and intensive and comprehensive services using disease
management practices for adults with bipolar disorder,
schizophrenia, or clinically severe depression and for children
with serious emotional illnesses. The local mental health
authority shall engage an individual with treatment services that
are:
(1) ongoing and matched to the needs of the individual
in type, duration, and intensity;
(2) focused on a process of recovery designed to allow
the individual to progress through levels of service;
(3) guided by evidence-based protocols and a
strength-based paradigm of service; and
(4) monitored by a system that holds the local
authority accountable for specific outcomes, while allowing
flexibility to maximize local resources.
(b) The department shall require each local mental health
authority to incorporate jail diversion strategies into the
authority's disease management practices for managing adults with
schizophrenia and bipolar disorder to reduce the involvement of
those client populations with the criminal justice system.
(c) The department shall enter into performance contracts
between the department and each local mental health authority for
the fiscal years ending August 31, 2004, and August 31, 2005, that
specify measurable outcomes related to their success in using
disease management practices to meet the needs of the target
populations.
(d) The department shall study the implementation of
disease management practices, including the jail diversion
measures, and shall submit to the governor, the lieutenant
governor, and the speaker of the house of representatives a report
on the progress in implementing disease management practices and
jail diversion measures by local mental health authorities. The
report must be delivered not later than December 31, 2004, and must
include specific information on:
(1) the implementation of jail diversion measures
undertaken; and
(2) the effect of disparities in per capita funding
levels among local mental health authorities on the implementation
and effectiveness of disease management practices and jail
diversion measures.
(e) The department may use the fiscal year ending August 31,
2004, as a transition period for implementing the requirements of
Subsections (a)-(c).
SECTION 2.71. Subchapter B, Chapter 533, Health and Safety
Code, is amended by adding Section 533.0355 to read as follows:
Sec. 533.0355. ALLOCATION OF DUTIES UNDER CERTAIN MEDICAID
WAIVER PROGRAMS. (a) In this section, "waiver program" means the
local mental retardation authority waiver program established
under the state Medicaid program.
(b) A provider of services under the waiver program shall:
(1) develop a person-directed plan and an individual
program plan for each person who receives services from the
provider under the waiver program;
(2) perform justification and implementation
functions for the plans described by Subdivision (1);
(3) conduct case management under the waiver program,
other than case management under Subsection (c)(4), in accordance
with applicable state and federal laws; and
(4) plan, coordinate, and review the provision of
services to all persons who receive services from the service
provider under the waiver program.
(c) A local mental retardation authority shall:
(1) manage any waiting lists for services under the
waiver program;
(2) screen and assess persons who may receive services
under the waiver program and perform any functions relating to
inventory for those persons and agency planning assessments;
(3) perform functions relating to consumer choice and
enrollment for persons who receive services under the waiver
program;
(4) conduct case management under the waiver program
relating to funding disputes between a service provider and the
local mental retardation authority; and
(5) manage an appeals process relating to decisions
that affect a person receiving services under the waiver program.
(d) The department shall perform all administrative
functions under the waiver program that are not assigned to a
service provider under Subsection (b) or to a local mental
retardation authority under Subsection (c). Administrative
functions performed by the department include any surveying,
certification, and utilization review functions required under the
waiver program.
(e) The department shall review case management fees paid
under the waiver program to a community center and administrative
fees paid under the waiver program to a service provider. The
review must include a comparison of fees paid before the
implementation of this section with fees paid after the
implementation of this section. The department may adjust fees
paid based on that review.
(f) The department shall allocate the portion of the gross
reimbursement funds paid to a local authority and a service
provider for client services for the case management function in
accordance with this section and to the extent allowed by law.
(g) The department may adopt rules governing the functions
of a local mental retardation authority or service provider under
this section.
SECTION 2.72. (a) Subchapter B, Chapter 533, Health and
Safety Code, is amended by adding Section 533.049 to read as
follows:
Sec. 533.049. PRIVATIZATION OF STATE SCHOOL. (a) After
August 31, 2004, and before September 1, 2005, the department may
contract with a private service provider to operate a state school
only if:
(1) the Health and Human Services Commission
determines that the private service provider will operate the state
school at a cost that is at least 25 percent less than the cost to
the department to operate the state school;
(2) the Health and Human Services Commission approves
the contract; and
(3) the state school, when operated under the
contract, treats a population with the same characteristics and
need levels as the population treated by the state school when
operated by the department.
(b) On or before April 1, 2004, the department shall report
to the commissioner of health and human services whether the
department has received a proposal by a private service provider to
operate a state school. The report must include an evaluation of
the private service provider's qualifications, experience, and
financial strength, a determination of whether the provider can
operate the state school under the same standard of care as the
department, and an analysis of the projected savings under a
proposed contract with the provider. The savings analysis must
include all department costs to operate the state school, including
costs, such as employee benefits, that are not appropriated to the
department.
(c) If the department contracts with a private service
provider to operate a state school, the department, the Governor's
Office of Budget and Planning, and the Legislative Budget Board
shall identify sources of funding that must be transferred to the
department to fund the contract.
(d) The department may renew a contract under this section.
The conditions listed in Subsections (a)(1)-(3) apply to the
renewal of the contract.
(b) Section 533.049, Health and Safety Code, as added by
this section, takes effect September 1, 2004.
SECTION 2.73. (a) Subchapter B, Chapter 533, Health and
Safety Code, is amended by adding Section 533.050 to read as
follows:
Sec. 533.050. PRIVATIZATION OF STATE MENTAL HOSPITAL. (a)
After August 31, 2004, and before September 1, 2005, the department
may contract with a private service provider to operate a state
mental hospital owned by the department only if:
(1) the Health and Human Services Commission
determines that the private service provider will operate the
hospital at a cost that is at least 25 percent less than the cost to
the department to operate the hospital;
(2) the Health and Human Services Commission approves
the contract; and
(3) the hospital, when operated under the contract,
treats a population with the same characteristics and acuity levels
as the population treated at the hospital when operated by the
department.
(b) On or before April 1, 2004, the department shall report
to the commissioner of health and human services whether the
department has received a proposal by a private service provider to
operate a state mental hospital. The report must include an
evaluation of the private service provider's qualifications,
experience, and financial strength, a determination of whether the
provider can operate the hospital under the same standard of care as
the department, and an analysis of the projected savings under a
proposed contract with the provider. The savings analysis must
include all department costs to operate the hospital, including
costs, such as employee benefits, that are not appropriated to the
department.
(c) If the department contracts with a private service
provider to operate a state mental hospital, the department, the
Governor's Office of Budget and Planning, and the Legislative
Budget Board shall identify sources of funding that must be
transferred to the department to fund the contract.
(d) The department may renew a contract under this section.
The conditions listed in Subsections (a)(1)-(3) apply to the
renewal of the contract.
(b) Section 533.050, Health and Safety Code, as added by
this section, takes effect September 1, 2004.
SECTION 2.74. (a) Subchapter C, Chapter 533, Health and
Safety Code, is amended by adding Sections 533.061 and 533.0611 to
read as follows:
Sec. 533.061. REQUIRED CONTRACT PROVISIONS. (a) The
department shall include in a contract with an ICF-MR program
provider a provision stating that the contract terminates if the
department imposes a vendor hold on payments made to the facility
under the medical assistance program under Chapter 32, Human
Resources Code, three times during an 18-month period.
(b) The department shall ensure that each provision of a
contract with an ICF-MR program provider is consistent with
department and Texas Department of Human Services rules that govern
the program.
Sec. 533.0611. SANCTIONS. If the Texas Department of Human
Services recommends that a vendor hold be imposed on payments made
to an ICF-MR program provider or that the contract with the ICF-MR
program provider be terminated, the Texas Department of Mental
Health and Mental Retardation shall immediately impose the vendor
hold or terminate the contract, as appropriate, without conducting
a further investigation or providing the program provider an
opportunity to take corrective action.
(b) A rule adopted by the Texas Board of Mental Health and
Mental Retardation before September 1, 2003, relating to the
imposition of a vendor hold on payments made to an ICF-MR program
provider or the cancellation of a contract with an ICF-MR program
provider after the imposition of vendor holds, is repealed on
September 1, 2003.
(c) The change in law made by Section 533.061, Health and
Safety Code, as added by this section, applies only to a contract
entered into with an ICF-MR program provider on or after the
effective date of this section. A contract entered into with an
ICF-MR program provider before the effective date of this section
is governed by the law in effect on the date the contract was
entered into, and the former law is continued in effect for that
purpose.
SECTION 2.75. Section 533.084, Health and Safety Code, is
amended by adding Subsections (b-1) and (b-2) to read as follows:
(b-1) Notwithstanding Subsection (b) or any other law, the
proceeds from the disposal of any surplus real property by the
department that occurs before September 1, 2005:
(1) are not required to be deposited to the credit of
the department in the Texas capital trust fund established under
Chapter 2201, Government Code; and
(2) may be appropriated for any general governmental
purpose.
(b-2) Subsection (b-1) and this subsection expire September
1, 2005.
SECTION 2.76. Subchapter D, Chapter 533, Health and Safety
Code, is amended by adding Section 533.0844 to read as follows:
Sec. 533.0844. MENTAL HEALTH COMMUNITY SERVICES ACCOUNT.
(a) The mental health community services account is an account in
the general revenue fund that may be appropriated only for the
provision of mental health services by or under contract with the
department.
(b) The department shall deposit to the credit of the mental
health community services account any money donated to the state
for inclusion in the account, including life insurance proceeds
designated for deposit to the account.
(c) Interest earned on the mental health community services
account shall be credited to the account. The account is exempt
from the application of Section 403.095, Government Code.
SECTION 2.77. Subchapter D, Chapter 533, Health and Safety
Code, is amended by adding Section 533.0846 to read as follows:
Sec. 533.0846. MENTAL RETARDATION COMMUNITY SERVICES
ACCOUNT. (a) The mental retardation community services account is
an account in the general revenue fund that may be appropriated only
for the provision of mental retardation services by or under
contract with the department.
(b) The department shall deposit to the credit of the mental
retardation community services account any money donated to the
state for inclusion in the account, including life insurance
proceeds designated for deposit to the account.
(c) Interest earned on the mental retardation community
services account shall be credited to the account. The account is
exempt from the application of Section 403.095, Government Code.
SECTION 2.78. Section 534.001(b), Health and Safety Code,
is amended to read as follows:
(b) In accordance with this subtitle, a [A] community center
may be:
(1) a community mental health center that provides
mental health services;
(2) a community mental retardation center that
provides mental retardation services; or
(3) a community mental health and mental retardation
center that provides mental health and mental retardation services.
SECTION 2.78A. Section 535.002(b), Health and Safety Code,
is amended to read as follows:
(b) If feasible and economical, the department may use local
mental health and mental retardation authorities to implement this
chapter. However, the department may not designate a [those] local
mental health or [and] mental retardation authority [authorities]
as a provider [the sole providers] of services if other providers
are available.
SECTION 2.79. Chapter 22, Human Resources Code, is amended
by adding Section 22.040 to read as follows:
Sec. 22.040. THIRD-PARTY INFORMATION. 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, financial assistance, or nutritional
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.
SECTION 2.80. (a) Section 31.0031, Human Resources Code,
is amended by amending Subsection (g) and adding Subsection (h) to
read as follows:
(g) In this section:
(1) "Caretaker [, "caretaker] relative" means a person
who is listed as a relative eligible to receive assistance under 42
U.S.C. Section 602(a).
(2) "Payee" means a person who resides in a household
with a dependent child and who is within the degree of relationship
with the child that is required of a caretaker, but whose needs are
not included in determining the amount of financial assistance
provided for the person's household.
(h) The department shall require each payee to sign a bill
of responsibilities that defines the responsibilities of the state
and of the payee. The responsibility agreement must require that a
payee comply with the requirements of Subsections (d)(1), (2), (5),
(6), and (7).
(b) Not later than January 1, 2004, the Texas Department of
Human Services shall require each payee of financial assistance
under Chapter 31, Human Resources Code, who received that
assistance on behalf of a dependent child before September 1, 2003,
and each recipient of financial assistance under Chapter 31, Human
Resources Code, who received that assistance before September 1,
2003, to enter into a responsibility agreement that complies with
the requirements of Section 31.0031, Human Resources Code, as
amended by this section, to continue receiving that assistance.
The department may not enforce the terms of the new agreement until
the payee or recipient has an opportunity to enter into the
agreement.
SECTION 2.81. (a) Sections 31.0032, 31.0033, and 31.0034,
Human Resources Code, are amended to read as follows:
Sec. 31.0032. PAYMENT OF ASSISTANCE AFTER PERFORMANCE
[PENALTIES AND SANCTIONS]. (a) Except as provided by Section
31.0033 and notwithstanding any other law, a person for whom the
department has made a determination of eligibility for financial
assistance and for whom an initial payment of that assistance has
been made may not receive any subsequent monthly payments of
assistance for the person or the person's family until the person
cooperates with the requirements of the responsibility agreement
under Section 31.0031. The person and the person's family may
receive a financial assistance payment each month only if the
person cooperated with those requirements during the previous month
[231.115, Family Code, as added by Chapter 911, Acts of the 75th
Legislature, Regular Session, 1997, if after an investigation the
department or the Title IV-D agency determines that a person is not
complying with a requirement of the responsibility agreement
required under Section 31.0031, the department immediately shall
apply appropriate sanctions or penalties regarding the assistance
provided to or for that person under this chapter].
(b) The department shall immediately notify the caretaker
relative, second parent, or payee receiving the financial
assistance if the department will not make the financial assistance
payment for a one-month period because of a person's failure to
cooperate with the requirements of the responsibility agreement
during that month [whether sanctions will be applied under this
section].
(c) The Health and Human Services Commission, or any health
and human services agency, as defined by Section 531.001,
Government Code, may deny medical assistance for an individual, to
the extent allowed by federal law, who is eligible for financial
assistance but to whom that assistance is not paid because of the
individual's failure to cooperate. Medical assistance to the
person's family may not be denied for the individual's failure to
cooperate. This subsection prohibits the denial of medical
assistance to persons receiving assistance under this chapter under
the age of 19, pregnant adults, and any other person who may not be
denied medical assistance under federal law.
(d) This section does not prohibit the Texas Workforce
Commission, the Health and Human Services Commission, or any health
and human services agency, as defined by Section 531.001,
Government Code, [department] from providing medical assistance,
child care, or any other social or support services for an
individual who is eligible for financial assistance but to whom
that assistance is not paid because of the individual's failure to
cooperate [subject to sanctions or penalties under this chapter].
(e) The department by rule shall establish procedures to
determine whether a person has cooperated with the requirements of
the responsibility agreement during each one-month period.
Sec. 31.0033. GOOD CAUSE [NONCOMPLIANCE] HEARING FOR
FAILURE TO COOPERATE. (a) If the department or Title IV-D agency
determines that a person has failed to cooperate with the
requirements of the responsibility agreement under Section 31.0031
during a one-month period [penalties and sanctions should be
applied under Section 31.0032], the person determined to have
failed to cooperate [not complied] or, if different, the person
receiving the financial assistance may request a hearing to show
good cause for failure to cooperate [noncompliance] not later than
the 13th day after the date on which notice is received under
Section 31.0032. If the person determined to have failed to
cooperate or, if different, the person receiving the financial
assistance requests a hearing to show good cause not later than the
13th day after the date on which notice is received under Section
31.0032, the department may not withhold or reduce the payment of
financial assistance until the 31st day after the department
receives the request, provided the department completes the hearing
before the 31st day, or the date the hearing is completed. On a
showing of good cause for failure to cooperate [noncompliance], the
person may receive a financial assistance payment for the month in
which the person failed to cooperate [sanctions may not be
imposed].
(b) The department shall promptly conduct a hearing if a
timely request is made under Subsection (a).
(c) If the department finds that good cause for the person's
failure to cooperate [noncompliance] was not shown at a hearing,
the department may not make a financial assistance payment in any
amount to the person for the person or the person's family for the
month in which the person failed to cooperate [shall apply
appropriate sanctions or penalties to or for that person until the
department, or the Title IV-D agency in a Title IV-D case,
determines that the person is in compliance with the terms of the
responsibility agreement].
(d) The department by rule shall establish criteria for good
cause failure to cooperate [noncompliance] and guidelines for what
constitutes a good faith effort on behalf of a recipient under this
section.
(e) Except as provided by a waiver or modification granted
under Section 31.0322, a person has good cause for failing or
refusing to cooperate with the requirement of the responsibility
agreement under Section 31.0031(d)(1) only if the person's
cooperation would be harmful to the physical, mental, or emotional
health of the person or the person's dependent child.
Sec. 31.0034. ANNUAL REPORT. The department shall prepare
and submit an annual report to the legislature that contains
statistical information regarding persons who are applying for or
receiving financial assistance or services under this chapter,
including the number of persons receiving assistance, the type of
assistance those persons are receiving, and the length of time
those persons have been receiving the assistance. The report also
must contain information on:
(1) the number of persons to whom [sanctions and] time
limits apply;
(2) the number of persons under each time limit
category;
(3) the number of persons who are exempt from
participation under Section 31.012(c);
(4) the number of persons who were receiving financial
assistance under this chapter but are no longer eligible to receive
that assistance because they failed to cooperate [comply] with the
requirements prescribed by Section 31.0031;
(5) the number of persons who are no longer eligible to
receive financial assistance or transitional benefits under this
chapter because:
(A) the person's household income has increased
due to employment; or
(B) the person has exhausted the person's
benefits under this chapter; [and]
(6) the number of persons receiving child care, job
training, or other support services designed to assist the
transition to self-sufficiency; and
(7) the number of persons who were eligible to receive
financial assistance under this chapter for each one-month period
but to whom that financial assistance was not paid because the
person failed to cooperate with the requirements of the
responsibility agreement under Section 31.0031.
(b) Subchapter A, Chapter 31, Human Resources Code, is
amended by adding Section 31.00331 to read as follows:
Sec. 31.00331. PENALTY FOR FAILURE TO COOPERATE. (a) A
person who, during a one-month period, fails to cooperate with the
requirements of the responsibility agreement under Section 31.0031
without good cause may not receive a financial assistance payment
for the person or the person's family for that month.
(b) When the department is notified by the Texas Workforce
Commission that a client failed to cooperate with work
requirements, the department shall suspend the case for 13 days to
allow the client to appeal that finding. The case shall be denied
if the client fails to request an appeal within that 13-day period.
If the client requests an appeal and the appeal is denied, the case
shall be denied immediately. If the appeal is upheld, the case
shall be reinstated.
(c) A person who fails to cooperate with the responsibility
agreement for two consecutive months becomes ineligible for
financial assistance for the person or the person's family. The
person may reapply for financial assistance, but must cooperate
with the requirements of the responsibility agreement for a
one-month period before receiving an assistance payment for that
month.
(c) The changes in law made by this section apply to a person
receiving financial assistance under Chapter 31, Human Resources
Code, on or after the effective date of this section, regardless of
the date on which eligibility for financial assistance was
determined.
SECTION 2.82. Subchapter A, Chapter 31, Human Resources
Code, is amended by adding Section 31.0038 to read as follows:
Sec. 31.0038. TEMPORARY EXCLUSION OF NEW SPOUSE'S INCOME.
(a) Subject to the limitations prescribed by Subsection (b),
income earned by an individual who marries an individual receiving
financial assistance at the time of the marriage may not be
considered by the department during the six-month period following
the date of the marriage for purposes of determining:
(1) the amount of financial assistance granted to an
individual under this chapter for the support of dependent
children; or
(2) whether the family meets household income and
resource requirements for financial assistance under this chapter.
(b) To be eligible for the income disregard provided by
Subsection (a), the combined income of the individual receiving
financial assistance and the new spouse cannot exceed 200 percent
of the federal poverty level for their family size.
SECTION 2.83. Sections 31.012(b) and (c), Human Resources
Code, are amended to read as follows:
(b) The department by rule shall establish criteria for good
cause failure to cooperate [noncompliance] and for notification
procedures regarding participation in work or employment
activities under this section.
(c) A person who is the caretaker of a physically or
mentally disabled child who requires the caretaker's presence is
not required to participate in a program under this section. A
[Effective January 1, 2000, a single person who is the caretaker of
a child is not required to participate in a program under this
section until the caretaker's youngest child at the time the
caretaker first became eligible for assistance reaches the age of
three. Effective September 1, 2000, a single person who is the
caretaker of a child is exempt until the caretaker's youngest child
at the time the caretaker first became eligible for assistance
reaches the age of two. Effective September 1, 2001, a] single
person who is the caretaker of a child is exempt until the
caretaker's youngest child at the time the caretaker first became
eligible for assistance reaches the age of one. Notwithstanding
Sections 31.0035(b) and 32.0255(b), the department shall provide to
a person who is exempt under this subsection and who voluntarily
participates in a program under Subsection (a)(2) six months of
transitional benefits in addition to the applicable limit
prescribed by Section 31.0065.
SECTION 2.84. Subchapter A, Chapter 31, Human Resources
Code, is amended by adding Section 31.015 to read as follows:
Sec. 31.015. HEALTHY MARRIAGE DEVELOPMENT PROGRAM. (a)
Subject to available federal funding, the department shall develop
and implement a healthy marriage development program for recipients
of financial assistance under this chapter.
(b) The healthy marriage development program shall promote
and provide three instructional courses on the following topics:
(1) premarital counseling for engaged couples and
marriage counseling for married couples that includes skill
development for:
(A) anger resolution;
(B) communication;
(C) honoring your spouse; and
(D) managing a budget;
(2) physical fitness and active lifestyles and
nutrition and cooking, including:
(A) abstinence for all unmarried persons,
including abstinence for persons who have previously been married;
and
(B) nutrition on a budget; and
(3) parenting skills, including parenting skills for
character development, academic success, and stepchildren.
(c) The department shall provide to a recipient of financial
assistance under this chapter additional financial assistance of
not more than $20 for the recipient's participation in a course
offered through the healthy marriage development program up to a
maximum payment of $60 a month.
(d) The department may provide the courses or may contract
with any person, including a community or faith-based organization,
for the provision of the courses. The department must provide all
participants with an option of attending courses in a
non-faith-based organization.
(e) The department shall develop rules as necessary for the
administration of the healthy marriage development program.
(f) The department must ensure that the courses provided by
the department and courses provided through contracts with other
organizations will be sensitive to the needs of individuals from
different religions, races, and genders.
SECTION 2.85. (a) Section 32.021, Human Resources Code, is
amended by adding Subsections (q), (r), and (s) to read as follows:
(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.
(b) Section 32.021(q), Human Resources Code, as added by
this section, applies only to a contract for the delivery of medical
assistance by a nursing facility that is entered into or renewed on
or after May 1, 2004. A contract for the delivery of medical
assistance by a nursing facility entered into before that date is
governed by the law in effect on the date the contract was entered
into, and the former law is continued in effect for that purpose.
SECTION 2.86. Subchapter B, Chapter 32, Human Resources
Code, is amended by adding Section 32.0212 to read as follows:
Sec. 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.
SECTION 2.87. (a) Section 32.024, Human Resources Code, is
amended by adding Subsections (t-1), (z), and (z-1) to read as
follows:
(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 on the basis that the recipient resides in a nursing
facility.
(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.
(z-1) Subsection (z) does not affect any other limit on
prescription medications otherwise prescribed by department rule.
(b) Section 32.024(z), Human Resources Code, as added by
this section, applies to a person receiving medical assistance on
or after the effective date of this section regardless of the date
on which the person began receiving that medical assistance.
SECTION 2.88. Section 32.026(e), Human Resources Code, is
amended to read as follows:
(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 a person-to-person telephone
interview or through a combination of a telephone interview and
mail correspondence instead of through a personal appearance at a
department office.
SECTION 2.89. Section 32.0261, Human Resources Code, is
amended to read as follows:
Sec. 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) six months from the [first anniversary of the]
date on which the child's eligibility was determined; or
(2) the child's 19th birthday.
SECTION 2.90. Section 32.0315(a), Human Resources Code, is
amended to read as follows:
(a) Subject to appropriated state funds, the [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.
SECTION 2.91. Section 10(c), Chapter 584, Acts of the 77th
Legislature, Regular Session, 2001, is amended to read as follows:
(c) The Health and Human Services Commission or the
appropriate state agency operating part of the medical assistance
program under Chapter 32, Human Resources Code, shall adopt rules
required by Section 32.0261, Human Resources Code, as added by this
Act, so that the rules take effect in accordance with that section
not earlier than September 1, 2002, or later than June 1, 2004
[2003]. The rules must provide for a 12-month period of continuous
eligibility in accordance with that section for a child whose
initial or continued eligibility is determined on or after the
effective date of the rules.
SECTION 2.92. Section 32.028, Human Resources Code, is
amended by amending Subsection (g) and adding Subsection (i) to
read as follows:
(g) Subject to Subsection (i), the [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.
(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; and
(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.
SECTION 2.93. Section 32.028, Human Resources Code, is
amended by adding Subsections (j), (k), and (l) to read as follows:
(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
long-term care facilities.
SECTION 2.94. Subchapter B, Chapter 32, Human Resources
Code, is amended by adding Section 32.0291 to read as follows:
Sec. 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.
SECTION 2.95. Section 32.032, Human Resources Code, is
amended to read as follows:
Sec. 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.
SECTION 2.96. Section 32.0321, Human Resources Code, is
amended to read as follows:
Sec. 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 any
shortages in 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, excluding the amounts
of the residents' personal needs allowances.
(e) The department may not require the amount of a surety
bond posted for a multiple facility provider under Subsection (c)
to exceed the average of the total average monthly balance of all
the provider's resident trust fund accounts in all of the provider's
facilities for the 12-month period preceding the bond issuance or
renewal date, excluding the amounts of the residents' personal
needs allowances.
SECTION 2.97. (a) Subchapter B, Chapter 32, Human
Resources Code, is amended by adding Section 32.0423 to read as
follows:
Sec. 32.0423. RECOVERY OF REIMBURSEMENTS FROM HEALTH
COVERAGE PROVIDERS. To the extent allowed by federal law, a health
care service provider must seek reimbursement from available
third-party health coverage or insurance that the provider knows
about or should know about before billing the medical assistance
program.
(b) Section 32.0423, Human Resources Code, as added by this
section, applies to a person receiving medical assistance on or
after the effective date of this section regardless of the date on
which the person began receiving that medical assistance.
SECTION 2.98. (a) Subchapter B, Chapter 32, Human
Resources Code, is amended by adding Section 32.0462 to read as
follows:
Sec. 32.0462. MEDICATIONS AND MEDICAL SUPPLIES. The
department may adopt rules establishing procedures for the purchase
and distribution of medically necessary, over-the-counter
medications and medical supplies under the medical assistance
program that were previously being provided by prescription if the
department determines it is more cost-effective than obtaining
those medications and medical supplies through a prescription.
(b) Not later than January 1, 2004, the Health and Human
Services Commission shall submit a report to the clerks of the
standing committees of the senate and house of representatives with
jurisdiction over the state Medicaid program describing the status
of any cost savings generated by purchasing over-the-counter
medications and medical supplies as provided by Section 32.0462,
Human Resources Code, as added by this section. The report must be
updated not later than January 1, 2005.
SECTION 2.99. Section 32.050, Human Resources Code, is
amended by adding Subsection (d) to read as follows:
(d) A nursing facility, a home health services provider, or
any other similar long-term care services provider that is
Medicare-certified and provides care to individuals who are
eligible for Medicare must:
(1) seek reimbursement from Medicare before billing
the medical assistance program for services provided to an
individual identified under Subsection (a); and
(2) as directed by the department, appeal Medicare
claim denials for payment services provided to an individual
identified under Subsection (a).
SECTION 2.100. (a) Subchapter B, Chapter 32, Human
Resources Code, is amended by adding Section 32.060 to read as
follows:
Sec. 32.060. NURSING FACILITY QUALITY ASSURANCE TEAM. (a)
The nursing facility quality assurance team is established to make
recommendations to the department designed to promote high-quality
care for residents of nursing facilities.
(b) The team is composed of nine members appointed by the
governor as follows:
(1) two physicians with expertise in providing
long-term care;
(2) one registered nurse with expertise in providing
long-term care;
(3) three nursing facility advocates not affiliated
with the nursing facility industry; and
(4) three representatives of the nursing facility
industry.
(c) The governor shall designate a member of the team to
serve as presiding officer. The members of the team shall elect any
other necessary officers.
(d) The team shall meet at the call of the presiding
officer.
(e) A member of the team serves at the will of the governor.
(f) A member of the team may not receive compensation for
serving on the team but is entitled to reimbursement for travel
expenses incurred by the member while conducting the business of
the team as provided by the General Appropriations Act.
(g) The team shall:
(1) develop and recommend clearly defined minimum
standards to be considered for inclusion in contracts between the
department and nursing facilities for the delivery of medical
assistance under this chapter that are designed to:
(A) ensure that the care provided by nursing
facilities to residents who are recipients of medical assistance
meets or exceeds the minimum acceptable standard of care; and
(B) encourage nursing facilities to provide the
highest quality of care to those residents; and
(2) develop and recommend improvements to consumers'
access to information regarding the quality of care provided by
nursing facilities that contract with the department to provide
medical assistance, including improvements in:
(A) the types and amounts of information to which
consumers have access, such as expanding the types and amounts of
information available through the department's Internet website;
and
(B) the department's data systems that compile
nursing facilities' inspection or survey data and other data
relating to quality of care in nursing facilities.
(h) In developing minimum standards for contracts as
required by Subsection (g)(1), the team shall:
(1) study the risk factors identified by the Texas
Department of Insurance as contributing to lawsuits against nursing
facilities;
(2) consider for inclusion in the minimum standards:
(A) the practices the Texas Department of
Insurance recommends nursing facilities adopt to reduce the
likelihood of those lawsuits; and
(B) other standards designed to improve the
quality of care;
(3) focus on a minimum number of critical standards
necessary to identify nursing facilities with poor quality services
that should not be awarded contracts for the delivery of medical
assistance; and
(4) with the assistance of the department, assess the
potential cost impacts on providers necessary to meet the minimum
standards, and the commensurate fiscal impact on the department's
appropriations requirement.
(i) The department shall ensure the accuracy of information
provided to the team for use by the team in performing the team's
duties under this section. The Health and Human Services
Commission shall provide administrative support and resources to
the team and request additional administrative support and
resources from health and human services agencies as necessary.
(b) The governor shall appoint the members of the nursing
facility quality assurance team established under Section 32.060,
Human Resources Code, as added by this section, not later than
January 1, 2004.
(c) The nursing facility quality assurance team shall
develop and make the recommendations required by Section 32.060,
Human Resources Code, as added by this section, not later than May
1, 2004.
(d) The nursing facility quality assurance team shall
report on its work and recommendations to the governor and the
Legislative Budget Board no later than October 1, 2004, for
consideration by the 79th Legislature.
SECTION 2.101. Subchapter B, Chapter 32, Human Resources
Code, is amended by adding Section 32.061 to read as follows:
Sec. 32.061. COMMUNITY ATTENDANT SERVICES PROGRAM. Any home
and community-based services that the department provides under
Section 1929, Social Security Act (42 U.S.C. Section 1396t) and its
subsequent amendments to functionally disabled individuals who
have income that exceeds the limit established by federal law for
Supplemental Security Income (SSI) (42 U.S.C. Section 1381 et seq.)
and its subsequent amendments shall be provided through the
community attendant services program.
SECTION 2.102. (a) Subchapter B, Chapter 32, Human
Resources Code, is amended by adding Section 32.063 to read as
follows:
Sec. 32.063. THIRD-PARTY BILLING VENDORS. (a) A
third-party billing vendor may not submit a claim with the
department for reimbursement on behalf of a provider of medical
services under the medical assistance program unless the vendor has
entered into a contract with the department authorizing that
activity.
(b) To the extent practical, the contract shall contain
provisions comparable to the provisions contained in contracts
between the department and providers of medical services, with an
emphasis on provisions designed to prevent fraud or abuse under the
medical assistance program. At a minimum, the contract must
require the third-party billing vendor to:
(1) provide documentation of the vendor's authority to
bill on behalf of each provider for whom the vendor submits claims;
(2) submit a claim in a manner that permits the
department to identify and verify the vendor, any computer or
telephone line used in submitting the claim, any relevant user
password used in submitting the claim, and any provider number
referenced in the claim; and
(3) subject to any confidentiality requirements
imposed by federal law, provide the department, the office of the
attorney general, or authorized representatives with:
(A) access to any records maintained by the
vendor, including original records and records maintained by the
vendor on behalf of a provider, relevant to an audit or
investigation of the vendor's services or another function of the
department or office of the attorney general relating to the
vendor; and
(B) if requested, copies of any records described
by Paragraph (A) at no charge to the department, the office of the
attorney general, or authorized representatives.
(c) On receipt of a claim submitted by a third-party billing
vendor, the department shall send a remittance notice directly to
the provider referenced in the claim. The notice must:
(1) include detailed information regarding the claim
submitted on behalf of the provider; and
(2) require the provider to review the claim for
accuracy and notify the department promptly regarding any errors.
(d) The department shall take all action necessary,
including any modifications of the department's claims processing
system, to enable the department to identify and verify a
third-party billing vendor submitting a claim for reimbursement
under the medical assistance program, including identification and
verification of any computer or telephone line used in submitting
the claim, any relevant user password used in submitting the claim,
and any provider number referenced in the claim.
(e) The department shall audit each third-party billing
vendor subject to this section at least annually to prevent fraud
and abuse under the medical assistance program.
(b) Section 32.063, Human Resources Code, as added by this
section, takes effect January 1, 2004.
SECTION 2.103. (a) Subchapter B, Chapter 32, Human
Resources Code, is amended by adding Section 32.064 to read as
follows:
Sec. 32.064. COST SHARING. (a) To the extent permitted
under Title XIX, Social Security Act (42 U.S.C. Section 1396 et
seq.), as amended, and any other applicable law or regulations, the
Health and Human Services Commission shall adopt provisions
requiring recipients of medical assistance to share the cost of
medical assistance, including provisions requiring recipients to
pay:
(1) an enrollment fee;
(2) a deductible; or
(3) coinsurance or a portion of the plan premium, if
the recipients receive medical assistance under the Medicaid
managed care program under Chapter 533, Government Code, or a
Medicaid managed care demonstration project under Section 32.041.
(b) Subject to Subsection (d), cost-sharing provisions
adopted under this section shall ensure that families with higher
levels of income are required to pay progressively higher
percentages of the cost of the medical assistance.
(c) If cost-sharing provisions imposed under Subsection (a)
include requirements that recipients pay a portion of the plan
premium, the commission shall specify the manner in which the
premium is paid. The commission may require that the premium be
paid to the commission, an agency operating part of the medical
assistance program, or the Medicaid managed care plan.
(d) Cost-sharing provisions adopted under this section may
be determined based on the maximum level authorized under federal
law and applied to income levels in a manner that minimizes
administrative costs.
(b) The changes in law made by Section 32.064, Human
Resources Code, as added by this section, apply to a person
receiving medical assistance on or after the effective date of this
section, regardless of the date on which eligibility for that
assistance was determined.
SECTION 2.104. Section 48.401(1), Human Resources Code, is
amended to read as follows:
(1) "Agency" means:
(A) an entity licensed under Chapter 142, Health
and Safety Code; or
(B) a person exempt from licensing under Section
142.003(a)(19), Health and Safety Code.
SECTION 2.105. Section 73.0051, Human Resources Code, is
amended by adding Subsection (l) to read as follows:
(l) The council by rule may establish a system of payments
by families of children receiving services under this chapter,
including a schedule of sliding fees, in a manner consistent with 34
C.F.R. Sections 303.12(a)(3)(iv), 303.520, and 303.521.
SECTION 2.106. (a) Sections 91.027(a) and (b), Human
Resources Code, are amended to read as follows:
(a) To the extent that funds are available under Sections
521.421(f), as added by Chapter 510, Acts of the 75th Legislature,
Regular Session, 1997, and 521.422(b), Transportation Code, the
[The] commission shall operate [develop] a Blindness Education,
Screening, and Treatment Program to provide:
(1) blindness prevention education and [to provide]
screening and treatment to prevent blindness for residents who are
not covered under an adequate health benefit plan; and
(2) transition services to blind disabled individuals
eligible for vocational rehabilitation services under Section
91.052.
(b) [The commission shall implement the program only to the
extent that funds are available under Section 521.421(f),
Transportation Code.] The program shall include:
(1) public education about blindness and other eye
conditions;
(2) screenings and eye examinations to identify
conditions that may cause blindness; [and]
(3) treatment procedures necessary to prevent
blindness; and
(4) transition services.
(b) The Texas Commission for the Blind shall establish the
consolidated program under Section 91.027, Human Resources Code, as
amended by this section, not later than the 90th day after the
effective date of this section.
SECTION 2.107. (a) Section 111.052, Human Resources Code,
is amended to read as follows:
Sec. 111.052. GENERAL FUNCTIONS. (a) The commission
shall, to the extent of resources available and priorities
established by the board, provide rehabilitation services directly
or through public or private resources to individuals determined by
the commission to be eligible for the services under a vocational
rehabilitation program[, an extended rehabilitation services
program,] or other program established to provide rehabilitative
services.
(b) In carrying out the purposes of this chapter, the
commission may:
(1) cooperate with other departments, agencies,
political subdivisions, and institutions, both public and private,
in providing the services authorized by this chapter to eligible
individuals, in studying the problems involved, and in planning,
establishing, developing, and providing necessary or desirable
programs, facilities, and services, including those jointly
administered with state agencies;
(2) enter into reciprocal agreements with other
states;
(3) establish or construct rehabilitation facilities
and workshops, contract with or provide grants to agencies,
organizations, or individuals as necessary to implement this
chapter, make contracts or other arrangements with public and other
nonprofit agencies, organizations, or institutions for the
establishment of workshops and rehabilitation facilities, and
operate facilities for carrying out the purposes of this chapter;
(4) conduct research and compile statistics relating
to the provision of services to or the need for services by disabled
individuals;
(5) provide for the establishment, supervision,
management, and control of small business enterprises to be
operated by individuals with significant disabilities where their
operation will be improved through the management and supervision
of the commission;
(6) contract with schools, hospitals, private
industrial firms, and other agencies and with doctors, nurses,
technicians, and other persons for training, physical restoration,
transportation, and other rehabilitation services; and
(7) assess the statewide need for services necessary
to prepare students with disabilities for a successful transition
to employment, establish collaborative relationships with each
school district with education service centers to the maximum
extent possible within available resources, and develop strategies
to assist vocational rehabilitation counselors in identifying and
reaching students in need of transition planning [contract with a
public or private agency to provide and pay for rehabilitative
services under the extended rehabilitation services program,
including alternative sheltered employment or community integrated
employment for a person participating in the program].
(b) Sections 111.002(7), 111.0525(a), and 111.073, Human
Resources Code, are repealed.
SECTION 2.108. Section 111.060, Human Resources Code, is
amended by adding Subsection (d) to read as follows:
(d) Notwithstanding any other provision of this section,
any money in the comprehensive rehabilitation fund may be used for
general governmental purposes if:
(1) the comptroller certifies that appropriations
from general revenue made by the preceding legislature for the
current biennium exceed available general revenues and cash
balances for the remainder of that biennium;
(2) an estimate of anticipated revenues for a
succeeding biennium prepared by the comptroller in accordance with
Section 49a, Article III, Texas Constitution, is less than the
revenues that are estimated at the same time by the comptroller to
be available for the current biennium; or
(3) the Legislative Budget Board otherwise determines
that a state fiscal emergency exists that requires use of any money
in the fund for general governmental purposes.
SECTION 2.109. (a) Subchapter I, Chapter 264, Family Code,
is transferred to Chapter 33, Education Code, is redesignated as
Subchapter E, Chapter 33, Education Code, and is amended to read as
follows:
SUBCHAPTER E [I]. COMMUNITIES IN SCHOOLS PROGRAM
Sec. 33.151 [264.751]. DEFINITIONS. In this subchapter:
(1) "Department" ["Agency"] means the Department of
Protective Services [Texas Education Agency].
(2) "Communities In Schools program" means an
exemplary youth dropout prevention program.
(3) "Delinquent conduct" has the meaning assigned by
Section 51.03, Family Code.
(4) "Student at risk of dropping out of school" means:
(A) a student at risk of dropping out of school as
defined [has the meaning assigned] by Section 29.081;
(B) [, Education Code, or means] a student who is
eligible for a free or reduced lunch; or
(C) a student who is in family conflict or
crisis.
Sec. 33.152 [264.752]. STATEWIDE OPERATION OF PROGRAM. It
is the intent of the legislature that the Communities In Schools
program operate throughout this state. It is also the intent of the
legislature that programs established under Chapter 305, Labor
Code, as that chapter existed on August 31, 1999, and its
predecessor statute, the Texas Unemployment Compensation Act
(Article 5221b-9d, Vernon's Texas Civil Statutes), and programs
established under this subchapter shall remain eligible to
participate in the Communities In Schools program if funds are
available and if their performance meets the criteria established
by the agency [department] for renewal of their contracts.
Sec. 33.153 [264.753]. STATE DIRECTOR. The commissioner
[executive director of the department] shall designate a state
director for the Communities In Schools program.
Sec. 33.154 [264.754]. DUTIES OF STATE DIRECTOR. The state
director shall:
(1) coordinate the efforts of the Communities In
Schools program with other social service organizations and
agencies and with public school personnel to provide services to
students who are at risk of dropping out of school or engaging in
delinquent conduct, including students who are in family conflict
or emotional crisis;
(2) set standards for the Communities In Schools
program and establish state performance goals, objectives, and
measures for the program;
(3) obtain information to determine accomplishment of
state performance goals, objectives, and measures;
(4) promote and market the program in communities in
which the program is not established;
(5) help communities that want to participate in the
program establish a local funding base; and
(6) provide training and technical assistance for
participating communities and programs.
Sec. 33.155 [264.755]. DEPARTMENT [AGENCY] COOPERATION;
MEMORANDUM OF UNDERSTANDING. (a) The agency, the department, and
Communities In Schools, Inc. shall work together to maximize the
effectiveness of the Communities In Schools program.
(b) The agency and the department shall develop and
[mutually] agree to a memorandum of understanding to clearly define
the responsibilities of the agency and of the department under this
subchapter. The memorandum must address:
(1) the roles [role] of the agency and department in
encouraging local business to participate in local Communities In
Schools programs;
(2) the role of the agency in obtaining information
from participating school districts;
(3) the use of federal or state funds available to the
agency or the department for programs of this nature; and
(4) other areas identified by the agency and the
department that require clarification.
(c) The agency and the department shall adopt rules to
implement the memorandum and shall update the memorandum and rules
annually.
Sec. 33.156 [264.756]. FUNDING; EXPANSION OF
PARTICIPATION. (a) The agency [department] shall develop and
implement an equitable formula for the funding of local Communities
In Schools programs. The formula may provide for the reduction of
funds annually contributed by the state to a local program by an
amount not more than 50 percent of the amount contributed by the
state for the first year of the program. The formula must consider
the financial resources of individual communities and school
districts. Savings accomplished through the implementation of the
formula may be used to extend services to counties and
municipalities currently not served by a local program or to extend
services to counties and municipalities currently served by an
existing local program.
(b) Each local Communities In Schools program shall develop
a funding plan which ensures that the level of services is
maintained if state funding is reduced.
(c) A local Communities In Schools program may accept
federal funds, state funds, private contributions, grants, and
public and school district funds to support a campus participating
in the program.
Sec. 33.157 [264.757]. PARTICIPATION IN PROGRAM. An
elementary or secondary school receiving funding [designated]
under Section 33.156 [264.756] shall participate in a local
Communities In Schools program if the number of students enrolled
in the school who are at risk of dropping out of school is equal to
at least 10 percent of the number of students in average daily
attendance at the school, as determined by the agency.
Sec. 33.158 [264.758]. DONATIONS TO PROGRAM. (a) The
agency [department] may accept a donation of services or money or
other property that the agency [department] determines furthers the
lawful objectives of the agency [department] in connection with the
Communities In Schools program.
(b) Each donation, with the name of the donor and the
purpose of the donation, must be reported in the public records of
the agency [department].
(b) Section 302.062(g), Labor Code, is amended to read as
follows:
(g) Block grant funding under this section does not apply
to:
(1) the work and family policies program under Chapter
81;
(2) a program under the skills development fund
created under Chapter 303;
(3) the job counseling program for displaced
homemakers under Chapter 304;
(4) the Communities In Schools program under
Subchapter E [I], Chapter 33 [264], Education [Family] Code, to the
extent that funds are available to the commission for that program;
(5) the reintegration of offenders program under
Chapter 306;
(6) apprenticeship programs under Chapter 133,
Education Code;
(7) the continuity of care program under Section
501.095, Government Code;
(8) employment programs under Chapter 31, Human
Resources Code;
(9) the senior citizens employment program under
Chapter 101, Human Resources Code;
(10) the programs described by Section 302.021(b)(3);
(11) the community service program under the National
and Community Service Act of 1990 (42 U.S.C. Section 12501 et seq.);
(12) the trade adjustment assistance program under
Part 2, Subchapter II, Trade Act of 1974 (19 U.S.C. Section 2271 et
seq.);
(13) the programs to enhance the employment
opportunities of veterans; and
(14) the functions of the State Occupational
Information Coordinating Committee.
(c) On September 1, 2003:
(1) all powers, duties, functions, and activities
relating to the Communities In Schools program assigned to or
performed by the Department of Protective Services immediately
before September 1, 2003, are transferred to the Texas Education
Agency;
(2) all funds, rights, obligations, and contracts of
the Department of Protective Services related to the Communities In
Schools program are transferred to the Texas Education Agency for
the Communities In Schools program;
(3) all property and records in the custody of the
Department of Protective Services related to the Communities In
Schools program and all funds appropriated by the legislature for
the Communities In Schools program are transferred to the Texas
Education Agency for the Communities In Schools program; and
(4) all employees of the Department of Protective
Services who primarily perform duties related to the Communities In
Schools program become employees of the Texas Education Agency, to
be assigned duties related to the Communities In Schools program.
(d) For the 2003 and 2004 state fiscal years, all full-time
equivalent positions (FTEs) authorized by the General
Appropriations Act for the Communities In Schools program are
transferred to the Texas Education Agency and are not included in
determining the agency's compliance with any limitation on the
number of full-time equivalent positions (FTEs) imposed by the
General Appropriations Act.
(e) A reference in law or administrative rule to the
Department of Protective Services that relates to the Communities
In Schools program means the Texas Education Agency. A reference in
law or administrative rule to the executive director of the
Department of Protective Services that relates to the Communities
In Schools program means the commissioner of education.
(f) A rule of the Department of Protective Services relating
to the Communities In Schools program continues in effect as a rule
of the commissioner of education until superseded by rule of the
commissioner of education. The secretary of state is authorized to
adopt rules as necessary to expedite the implementation of this
subsection.
(g) The transfer of the Communities In Schools program and
associated powers, duties, functions, and activities under this
section does not affect or impair any act done, any obligation,
right, order, license, permit, rule, criterion, standard, or
requirement existing, any investigation begun, or any penalty
accrued under former law, and that law remains in effect for any
action concerning those matters.
(h) An action brought or proceeding commenced before
September 1, 2003, including a contested case or a remand of any
action or proceeding by a reviewing court, is governed by the law
and rules applicable to the action or proceeding immediately before
September 1, 2003.
SECTION 2.110. (a) Sections 2(a) and (c), Article 4.11,
Insurance Code, are amended to read as follows:
(a) "Carrier" means any insurer, managed care organization,
or group hospital service plan transacting any such insurance
business in this state including companies operating under the
provisions of Chapters 841, 842, 843, 861, 881, 882, 883, 884, 941,
942, and 982, [3, 8, 11, 13, 15, 18, 19, 20, 20A, and 22 of the]
Insurance Code, Chapter 533, Government Code, or Title XIX of the
federal Social Security Act. The term does not include [but
excluding] local mutual aid associations, fraternal benefit
societies or associations, and societies that limit their
membership to one occupation. For purposes of computing the premium
tax under this article, a managed care organization shall be
treated in the same manner as a health maintenance organization.
(c) "Gross premiums" are the total gross amount of all
premiums, membership fees, assessments, dues, and any other
considerations for such insurance received during the taxable year
on each and every kind of such insurance policy or contract covering
persons located in the State of Texas and arising from the types of
insurance specified in Section 1 of this article, but deducting
returned premiums, any dividends applied to purchase paid-up
additions to insurance or to shorten the endowment or premium
payment period, and excluding those premiums received from
insurance carriers for reinsurance and there shall be no deduction
for premiums paid for reinsurance. For purposes of this article, a
stop-loss or excess loss insurance policy issued to a health
maintenance organization, as defined under the Texas Health
Maintenance Organization Act (Chapter 20A, Vernon's Texas
Insurance Code), shall be considered reinsurance. Such gross
premiums shall not include premiums received from the [Treasury of
the State of Texas or from the] Treasury of the United States for
[insurance contracted for by the state or federal government for
the purpose of providing welfare benefits to designated welfare
recipients or for] insurance contracted for by the [state or]
federal government in accordance with or in furtherance of the
provisions of Title XVIII of [2, Human Resources Code, or] the
Federal Social Security Act (42 U.S.C. Section 1395c et seq.) and
its subsequent amendments. The gross premiums receipts so reported
shall not include the amount of premiums paid on group health,
accident, and life policies in which the group covered by the policy
consists of a single nonprofit trust established to provide
coverage primarily for employees of:
(1) a municipality, county, or hospital district in
this state; or
(2) a county or municipal hospital, without regard to
whether the employees are employees of the county or municipality
or another entity operating the hospital on behalf of the county or
municipality.
(b) The change in law made by this section applies only to a
tax report originally due on or after January 1, 2004.
(c) The change in law made by this section expires December
31, 2007.
SECTION 2.111. (a) Article 4.17(a), Insurance Code, is
amended to read as follows:
(a) The commissioner shall annually determine the rate of
assessment of a maintenance tax to be paid on an annual, semiannual,
or other periodic basis, as determined by the comptroller. The rate
of assessment may not exceed .04 percent of the correctly reported
gross premiums of life, health, and accident insurance coverages
and the gross considerations for annuity and endowment contracts
collected by all authorized insurers writing life, health, and
accident insurance, annuity, or endowment contracts in this state.
The comptroller shall collect the maintenance tax. For purposes of
this article, the gross premiums on which an assessment is based may
not include premiums received from [this state or] the United
States for insurance contracted for by [this state or] the United
States [for the purpose of providing welfare benefits to designated
welfare recipients or for insurance contracted for by this state or
the United States] in accordance with or in furtherance of Title
XVIII of [2, Human Resources Code, or] the federal Social Security
Act (42 U.S.C. Section 1395c et seq.) and its subsequent amendments
[(42 U.S.C. Section 301 et seq.)].
(b) The change in law made by this section applies only to a
tax report originally due on or after January 1, 2004.
(c) The change in law made by this section expires December
31, 2007.
SECTION 2.112. (a) Section 20A.33(d), Texas Health
Maintenance Organization Act (Article 20A.33, Vernon's Texas
Insurance Code), is amended to read as follows:
(d) The commissioner shall annually determine the rate of
assessment of a per capita maintenance tax to be paid on an annual
or semiannual basis, on the correctly reported gross revenues for
the issuance of health maintenance certificates or contracts
collected by all authorized health maintenance organizations
issuing such coverages in this state. The rate of assessment may
not exceed $2 for each enrollee. The rate of assessment may differ
between basic health care plans, limited health care service plans,
and single health care service plans and shall equitably reflect
any differences in regulatory resources attributable to each type
of plan. The comptroller shall collect the maintenance tax. For
purposes of this section, the amount of maintenance tax assessed
may not be computed on enrollees who as individual certificate
holders or their dependents are covered by a master group policy
paid for by revenues received from [this state or] the United States
for insurance contracted for by [this state or] the United States
[for the purpose of providing welfare benefits to designated
welfare recipients or for insurance contracted for by this state or
the United States] in accordance with or in furtherance of Title
XVIII of [2, Human Resources Code, or] the federal Social Security
Act (42 U.S.C. Section 1395c et seq.) and its subsequent amendments
[(42 U.S.C. Section 301 et seq.)].
(b) The change in law made by this section applies only to a
tax report originally due on or after January 1, 2004.
(c) The change in law made by this section expires December
31, 2007.
SECTION 2.113. Section 2, Article 21.52K, Insurance Code,
is amended by amending Subsections (c) and (d) and adding
Subsection (g) to read as follows:
(c) If an individual described by Subsection (a), [or] (b),
or (g) of this section is not eligible to enroll in the plan unless a
family member of the individual is also enrolled in the plan, the
issuer, on receipt of the written notice or request under
Subsection (a), [or] (b), or (g) of this section, shall enroll both
the individual and the family member in the plan.
(d) Unless enrollment occurs during an established
enrollment period, enrollment under this article takes effect on
the first day of the calendar month that begins at least 30 days
after the date written notice or request is received by the issuer
under Subsection (a), [or] (b), or (g) of this section.
(g) The issuer of a group health benefit plan shall permit
an individual who is otherwise eligible for enrollment in the plan
to enroll in the plan without regard to any enrollment period
restriction if the individual:
(1) becomes ineligible for medical assistance under
the state Medicaid program or enrollment in the state child health
plan under Chapter 62, Health and Safety Code, after initially
establishing eligibility; and
(2) provides a written request for enrollment in the
group health benefit plan not later than the 30th day after the date
the individual's eligibility for the state Medicaid program or the
state child health plan terminated.
SECTION 2.114. (a) Article 21.53F, Insurance Code, as
added by Chapter 683, Acts of the 75th Legislature, Regular
Session, 1997, is amended by adding Section 9 to read as follows:
Sec. 9. OFFER OF COVERAGE REQUIRED; CERTAIN THERAPIES FOR
CHILDREN WITH DEVELOPMENTAL DELAYS. (a) For purposes of this
section, rehabilitative and habilitative therapies include:
(1) occupational therapy evaluations and services;
(2) physical therapy evaluations and services;
(3) speech therapy evaluations and services; and
(4) dietary or nutritional evaluations.
(b) The issuer of a health benefit plan must offer coverage
that complies with this section. The individual or group policy or
contract holder may reject coverage required to be offered under
this subsection.
(c) A health benefit plan that provides coverage for
rehabilitative and habilitative therapies under this section may
not prohibit or restrict payment for covered services provided to a
child and determined to be necessary to and provided in accordance
with an individualized family service plan issued by the
Interagency Council on Early Childhood Intervention under Chapter
73, Human Resources Code.
(d) Rehabilitative and habilitative therapies described by
Subsection (c) of this section must be covered in the amount,
duration, scope, and service setting established in the child's
individualized family service plan.
(e) Under the coverage required to be offered under this
section, a health benefit plan issuer may not:
(1) apply the cost of rehabilitative and habilitative
therapies described by Subsection (c) of this section to an annual
or lifetime maximum plan benefit or similar provision under the
plan; or
(2) use the cost of rehabilitative or habilitative
therapies described by Subsection (c) of this section as the sole
justification for:
(A) increasing plan premiums; or
(B) terminating the insured's or enrollee's
participation in the plan.
(b) The change in law made by this section applies only to a
health benefit plan that is delivered, issued for delivery, or
renewed on or after January 1, 2004. A health benefit plan that is
delivered, issued for delivery, or renewed before January 1, 2004,
is governed by the law as it existed immediately before the
effective date of this section, and the former law is continued in
effect for that purpose.
SECTION 2.115. Article 27.05, Insurance Code, is amended to
read as follows:
Art. 27.05. EXEMPTION FROM PREMIUM TAX. The issuer of a
children's health benefit plan approved under Article 27.03 of this
code is not subject to the premium tax imposed by Article 4.11 of
this code or the tax on revenues imposed under Section 33, Texas
Health Maintenance Organization Act (Article 20A.33, Vernon's
Texas Insurance Code), with respect to money received for coverage
provided under that plan.
SECTION 2.116. Chapter 27, Insurance Code, is amended by
adding Article 27.07 to read as follows:
Art. 27.07. INAPPLICABILITY TO CERTAIN PLANS. This chapter
does not apply to a health benefit plan provided under the state
Medicaid program or the state child health plan.
SECTION 2.117. Subchapter C, Chapter 562, Occupations Code,
is amended by adding Sections 562.1085 and 562.1086 to read as
follows:
Sec. 562.1085. UNUSED DRUGS RETURNED BY CERTAIN
PHARMACISTS. (a) A pharmacist who practices in or serves as a
consultant for a health care facility in this state may return to a
pharmacy certain unused drugs, other than a controlled substance as
defined by Chapter 481, Health and Safety Code, purchased from the
pharmacy as provided by board rule. The unused drugs must:
(1) be approved by the federal Food and Drug
Administration and be:
(A) sealed in the manufacturer's original
unopened tamper-evident packaging and either individually
packaged or packaged in unit-dose packaging;
(B) oral or parenteral medication in sealed
single-dose containers approved by the federal Food and Drug
Administration;
(C) topical or inhalant drugs in sealed
units-of-use containers approved by the federal Food and Drug
Administration; or
(D) parenteral medications in sealed
multiple-dose containers approved by the federal Food and Drug
Administration from which doses have not been withdrawn; and
(2) not be the subject of a mandatory recall by a state
or federal agency or a voluntary recall by a drug seller or
manufacturer.
(b) A pharmacist for the pharmacy shall examine a drug
returned under this section to ensure the integrity of the drug
product. A health care facility may not return a drug that:
(1) has been compounded;
(2) appears on inspection to be adulterated;
(3) requires refrigeration; or
(4) has less than 120 days until the expiration date or
end of the shelf life.
(c) The pharmacy may restock and redistribute unused drugs
returned under this section.
(d) The pharmacy shall reimburse or credit the state
Medicaid program for an unused drug returned under this section.
(e) The board shall adopt the rules, policies, and
procedures necessary to administer this section, including rules
that require a health care facility to inform the Health and Human
Services Commission of medicines returned to a pharmacy under this
section.
Sec. 562.1086. LIMITATION ON LIABILITY. (a) A pharmacy that
returns unused drugs and a manufacturer that accepts the unused
drugs under Section 562.1085 and the employees of the pharmacy or
manufacturer are not liable for harm caused by the accepting,
dispensing, or administering of drugs returned in strict compliance
with Section 562.1085 unless the harm is caused by:
(1) wilful or wanton acts of negligence;
(2) conscious indifference or reckless disregard for
the safety of others; or
(3) intentional conduct.
(b) This section does not limit, or in any way affect or
diminish, the liability of a drug seller or manufacturer under
Chapter 82, Civil Practice and Remedies Code.
(c) This section does not apply if harm results from the
failure to fully and completely comply with the requirements of
Section 562.1085.
(d) This section does not apply to a pharmacy or
manufacturer that fails to comply with the insurance provisions of
Chapter 84, Civil Practice and Remedies Code.
SECTION 2.118. Section 455.0015, Transportation Code, is
amended by amending Subsection (b) and adding Subsections (c) and
(d) to read as follows:
(b) It is the intent of the legislature that, whenever
possible, and to the maximum extent feasible, the existing network
of transportation providers, and in particular the fixed route
components of the existing networks, be used to meet the client
transportation requirements of the state's social service agencies
and their agents. The legislature recognizes the contributions of
nonprofit entities dedicated to providing social services and
related activities and encourages the continued community
involvement of these entities in this area. The legislature
likewise recognizes the potential cost savings and other benefits
for utilizing existing private sector transportation resources.
The department will contract with and promote the use of private
sector transportation resources to the maximum extent feasible
consistent with the goals of this subsection.
(c) The Texas Department of Health and the Health and Human
Services Commission shall contract with the department for the
department to assume all responsibilities of the Texas Department
of Health and the Health and Human Services Commission relating to
the provision of transportation services for clients of eligible
programs.
(d) The department may contract with any public or private
transportation provider or with any regional transportation broker
for the provision of public transportation services.
SECTION 2.119. Section 40.002, Human Resources Code, is
amended by adding Subsection (f) to read as follows:
(f) The department may contract with the Texas Department of
Transportation for the Texas Department of Transportation to assume
all responsibilities of the department relating to the provision of
transportation services for clients of eligible programs.
SECTION 2.120. Section 22.001, Human Resources Code, is
amended by adding Subsection (e) to read as follows:
(e) The department shall contract with the Texas Department
of Transportation for the Texas Department of Transportation to
assume all responsibilities of the department relating to the
provision of transportation services for clients of eligible
programs.
SECTION 2.121. Section 91.021, Human Resources Code, is
amended by adding Subsection (g) to read as follows:
(g) The commission shall contract with the Texas Department
of Transportation for the Texas Department of Transportation to
assume all responsibilities of the commission relating to the
provision of transportation services for clients of eligible
programs.
SECTION 2.122. Section 101.0256, Human Resources Code, is
amended to read as follows:
Sec. 101.0256. COORDINATED ACCESS TO LOCAL
SERVICES. (a) The department and the Texas Department of Human
Services shall develop standardized assessment procedures to share
information on common clients served in a similar service region.
(b) The department shall contract with the Texas Department
of Transportation for the Texas Department of Transportation to
assume all responsibilities of the department relating to the
provision of transportation services for clients of eligible
programs.
SECTION 2.123. Section 111.0525, Human Resources Code, is
amended by adding Subsection (d) to read as follows:
(d) The commission shall contract with the Texas Department
of Transportation for the Texas Department of Transportation to
assume all responsibilities of the commission relating to the
provision of transportation services for clients of eligible
programs.
SECTION 2.124. Section 461.012(a), Health and Safety Code,
is amended to read as follows:
(a) The commission shall:
(1) provide for research and study of the problems of
chemical dependency in this state and seek to focus public
attention on those problems through public information and
education programs;
(2) plan, develop, coordinate, evaluate, and
implement constructive methods and programs for the prevention,
intervention, treatment, and rehabilitation of chemical dependency
in cooperation with federal and state agencies, local governments,
organizations, and persons, and provide technical assistance,
funds, and consultation services for statewide and community-based
services;
(3) cooperate with and enlist the assistance of:
(A) other state, federal, and local agencies;
(B) hospitals and clinics;
(C) public health, welfare, and criminal justice
system authorities;
(D) educational and medical agencies and
organizations; and
(E) other related public and private groups and
persons;
(4) expand chemical dependency services for children
when funds are available because of the long-term benefits of those
services to the state and its citizens;
(5) sponsor, promote, and conduct educational
programs on the prevention and treatment of chemical dependency,
and maintain a public information clearinghouse to purchase and
provide books, literature, audiovisuals, and other educational
material for the programs;
(6) sponsor, promote, and conduct training programs
for persons delivering prevention, intervention, treatment, and
rehabilitation services and for persons in the criminal justice
system or otherwise in a position to identify chemically dependent
persons and their families in need of service;
(7) require programs rendering services to chemically
dependent persons to safeguard those persons' legal rights of
citizenship and maintain the confidentiality of client records as
required by state and federal law;
(8) maximize the use of available funds for direct
services rather than administrative services;
(9) consistently monitor the expenditure of funds and
the provision of services by all grant and contract recipients to
assure that the services are effective and properly staffed and
meet the standards adopted under this chapter;
(10) make the monitoring reports prepared under
Subdivision (9) a matter of public record;
(11) license treatment facilities under Chapter 464;
(12) use funds appropriated to the commission to carry
out this chapter and maximize the overall state allotment of
federal funds;
(13) develop and implement policies that will provide
the public with a reasonable opportunity to appear before the
commission and to speak on any issue under the commission's
jurisdiction;
(14) establish minimum criteria that peer assistance
programs must meet to be governed by and entitled to the benefits of
a law that authorizes licensing and disciplinary authorities to
establish or approve peer assistance programs for impaired
professionals;
(15) adopt rules governing the functions of the
commission, including rules that prescribe the policies and
procedures followed by the commission in administering any
commission programs;
(16) plan, develop, coordinate, evaluate, and
implement constructive methods and programs to provide healthy
alternatives for youth at risk of selling controlled substances;
(17) submit to the federal government reports and
strategies necessary to comply with Section 1926 of the federal
Alcohol, Drug Abuse, and Mental Health Administration
Reorganization Act, Pub. L. 102-321 (42 U.S.C. Section 300x-26);
reports and strategies are to be coordinated with appropriate state
governmental entities; [and]
(18) regulate, coordinate, and provide training for
alcohol awareness courses required under Section 106.115,
Alcoholic Beverage Code, and may charge a fee for an activity
performed by the commission under this subdivision; and
(19) contract with the Texas Department of
Transportation for the Texas Department of Transportation to assume
all responsibilities of the commission relating to the provision of
transportation services for clients of eligible programs.
SECTION 2.125. Section 533.012, Health and Safety Code, is
amended to read as follows:
Sec. 533.012. COOPERATION OF STATE AGENCIES. (a) At the
department's request, all state departments, agencies, officers,
and employees shall cooperate with the department in activities
that are consistent with their functions.
(b) The department shall contract with the Texas Department
of Transportation for the Texas Department of Transportation to
assume all responsibilities of the department relating to the
provision of transportation services for clients of eligible
programs.
SECTION 2.126. (a) Section 1551.159, Insurance Code, as
effective June 1, 2003, is amended by amending Subsection (a) and
adding Subsection (h) to read as follows:
(a) Subject to any applicable limit in the General
Appropriations Act, the board of trustees shall use money
appropriated for employer contributions to fund 80 percent of the
cost of basic coverage for a child who:
(1) is a dependent of an employee;
(2) would be eligible, if the child were not the
dependent of the employee, for benefits under the state child
health plan established under Chapter 62, Health and Safety Code
[the program established by the state to implement Title XXI,
Social Security Act (42 U.S.C. Section 1397aa et seq.), as
amended]; and
(3) is not eligible for the state Medicaid program.
(h) A child enrolled in dependent child coverage under this
section is subject to the same requirements and restrictions
relating to income eligibility, continuous coverage, and
enrollment, including applicable waiting periods, as a child
enrolled in the state child health plan under Chapter 62, Health and
Safety Code.
(b) The change in law made by this section applies only to a
child enrolled in dependent child coverage under the state
employees group benefits program on and after September 1, 2003.
SECTION 2.127. Section 31.03, Penal Code, is amended by
adding Subsection (j) to read as follows:
(j) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the state Medicaid
program.
SECTION 2.128. Section 32.45, Penal Code, is amended by
adding Subsection (d) to read as follows:
(d) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the state Medicaid
program.
SECTION 2.129. Section 32.46, Penal Code, is amended by
adding Subsection (e) to read as follows:
(e) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the state Medicaid
program.
SECTION 2.130. Section 37.10, Penal Code, is amended by
adding Subsection (i) to read as follows:
(i) With the consent of the appropriate local county or
district attorney, the attorney general has concurrent
jurisdiction with that consenting local prosecutor to prosecute an
offense under this section that involves the state Medicaid
program.
SECTION 2.131. Section 57.046, Utilities Code, is amended
by adding Subsection (c) to read as follows:
(c) In addition to the purposes for which the qualifying
entities account may be used, the board may use money in the account
to award grants to the Health and Human Services Commission for
technology initiatives of the commission.
SECTION 2.132. Articles 59.01(1) and (2), Code of Criminal
Procedure, are amended to read as follows:
(1) "Attorney representing the state" means the
prosecutor with felony jurisdiction in the county in which a
forfeiture proceeding is held under this chapter or, in a
proceeding for forfeiture of contraband as defined under
Subdivision (2)(B)(iv) of this article, the city attorney of a
municipality if the property is seized in that municipality by a
peace officer employed by that municipality and the governing body
of the municipality has approved procedures for the city attorney
acting in a forfeiture proceeding. In a proceeding for forfeiture
of contraband as defined under Subdivision (2)(B)(vii) of this
article, the term includes the attorney general.
(2) "Contraband" means property of any nature,
including real, personal, tangible, or intangible, that is:
(A) used in the commission of:
(i) any first or second degree felony under
the Penal Code;
(ii) any felony under Section 15.031(b),
21.11, 38.04, 43.25, or 43.26 or Chapter 29, 30, 31, 32, 33, 33A, or
35, Penal Code; or
(iii) any felony under The Securities Act
(Article 581-1 et seq., Vernon's Texas Civil Statutes);
(B) used or intended to be used in the commission
of:
(i) any felony under Chapter 481, Health
and Safety Code (Texas Controlled Substances Act);
(ii) any felony under Chapter 483, Health
and Safety Code;
(iii) a felony under Chapter 153, Finance
Code;
(iv) any felony under Chapter 34, Penal
Code;
(v) a Class A misdemeanor under Subchapter
B, Chapter 365, Health and Safety Code, if the defendant has been
previously convicted twice of an offense under that subchapter;
[or]
(vi) any felony under Chapter 152, Finance
Code; or
(vii) any felony under Chapter 31, 32, or
37, Penal Code, that involves the state Medicaid program, or any
felony under Chapter 36, Human Resources Code;
(C) the proceeds gained from the commission of a
felony listed in Paragraph (A) or (B) of this subdivision or a crime
of violence; or
(D) acquired with proceeds gained from the
commission of a felony listed in Paragraph (A) or (B) of this
subdivision or a crime of violence.
SECTION 2.133. Article 59.06, Code of Criminal Procedure,
is amended by adding Subsection (p) to read as follows:
(p) Notwithstanding Subsection (a), and to the extent
necessary to protect the commission's ability to recover amounts
wrongfully obtained by the owner of the property and associated
damages and penalties to which the commission may otherwise be
entitled by law, the attorney representing the state shall transfer
to the Health and Human Services Commission all forfeited property
defined as contraband under Article 59.01(2)(B)(vii). If the
forfeited property consists of property other than money or
negotiable instruments, the attorney representing the state may, if
approved by the commission, sell the property and deliver to the
commission the proceeds from the sale, minus costs attributable to
the sale. The sale must be conducted in a manner that is reasonably
expected to result in receiving the fair market value for the
property.
SECTION 2.134. STUDY. (a) The Medicaid and Public
Assistance Fraud Oversight Task Force, with the participation of
the Texas Department of Health's bureau of vital statistics and
other agencies designated by the comptroller, shall study
procedures and documentation requirements used by the state in
confirming a person's identity for purposes of establishing
entitlement to Medicaid and other benefits provided through health
and human services programs.
(b) Not later than December 1, 2004, the Medicaid and Public
Assistance Fraud Oversight Task Force, with assistance from the
agencies participating in the study required by Subsection (a) of
this section, shall submit a report to the legislature containing
recommendations for improvements in the procedures and
documentation requirements described by Subsection (a) of this
section that would strengthen the state's ability to prevent fraud
and abuse in the Medicaid program and other health and human
services programs.
[SECTION 2.135 reserved]
SECTION 2.136. STUDY: REVENUE ENHANCEMENT RELATED TO
MEDICAID VENDOR DRUG REBATE. (a) A task force is created to study
the prescription drug rebate system established and operated under
the medical assistance program and other related programs.
(b) The commission shall establish a task force, composed of
appropriate legislators, state agency personnel, and other
appropriate personnel to study the prescription drug rebate system
established and operated under the medical assistance program and
other related programs.
(c) The study must include:
(1) a background on the development and operation of
the federal vendor drug rebate and state supplemental rebate
system;
(2) a description of current and historical state
efforts to develop and implement alternatives to the federal vendor
drug rebate system;
(3) a review of any relevant case law or legal
precedents related to the vendor drug rebate system;
(4) an analysis of state implementation, including
attempted implementation, of an exemption of federal requirements,
including the federal Social Security Act, related to vendor drug
rebates, prior authorization provisions, and formulary; and
(5) feasibility of developing either an alternative
rebate system or other mechanism to enhance the state's share of
prescription drug rebates.
(d) The study must be completed by December 1, 2004, and
presented to the governor and the presiding officers of each house,
the House Committee on Appropriations, and the Senate Finance
Committee.
SECTION 2.137. LEGISLATIVE INTENT REGARDING PROVISION OF
HEALTH AND HUMAN SERVICE TRANSPORTATION THROUGH THE TEXAS
DEPARTMENT OF TRANSPORTATION. It is the intent of the legislature
that the provision of health and human service transportation
through the Texas Department of Transportation will improve the
delivery of transportation services to clients and enhance their
access to transportation services. Furthermore, it is the intent
of the legislature that these services be provided in a manner that
will generate efficiencies in operation, control costs, and permit
increased levels of service. The Texas Department of
Transportation shall encourage cooperation and coordination among
transportation providers, regional transportation brokers, and
actual and potential clients in an effort to achieve the stated
legislative goals.
SECTION 2.138. (a) A change in law made by this article to
Section 242.047, Health and Safety Code, that requires the Texas
Department of Health to accept an annual accreditation review from
the Joint Commission on Accreditation of Health Organizations for a
nursing home in satisfaction of the requirements for certification:
(1) applies only to a nursing home that participates
in the medical assistance program under Chapter 32, Human Resources
Code, before September 1, 2003; and
(2) may be implemented only as a pilot program.
(b) A pilot program operated in accordance with this section
expires September 1, 2007.
SECTION 2.139. (a) The Texas State Board of Pharmacy shall
adopt the rules required by Section 562.1085, Occupations Code, as
added by this Act, not later than December 1, 2003.
(b) Notwithstanding Section 562.1085, Occupations Code, as
added by this Act, a pharmacy is not required to accept unused drugs
from a health care facility before January 1, 2004.
SECTION 2.140. The Health and Human Services Commission
shall adopt the rules required by Sections 32.028(i) and (j), Human
Resources Code, as added by this Act, not later than December 1,
2003.
SECTION 2.141. TRANSFER OF MEDICAL TRANSPORTATION PROGRAM.
(a) On September 1, 2004, or on an earlier date specified by the
Health and Human Services Commission:
(1) all powers, duties, functions, activities,
obligations, rights, contracts, records, property, and
appropriations or other money of the Texas Department of Health
that are determined by the commissioner of health and human
services to be essential to the administration of the medical
transportation program are transferred to the Health and Human
Services Commission;
(2) a rule or form adopted by the Texas Department of
Health that relates to the medical transportation program is a rule
or form of the Health and Human Services Commission and remains in
effect until altered by the commission;
(3) a reference in law or an administrative rule to the
Texas Department of Health that relates to the medical
transportation program means the Health and Human Services
Commission;
(4) a license, permit, or certification in effect that
was issued by the Texas Department of Health and that relates to the
medical transportation program is continued in effect as a license,
permit, or certification of the Health and Human Services
Commission; and
(5) a complaint, investigation, or other proceeding
pending before the Texas Department of Health that relates to the
medical transportation program is transferred without change in
status to the Health and Human Services Commission.
(b) The Health and Human Services Commission shall take all
action necessary to provide for the transfer of the medical
transportation program to the commission as soon as possible after
the effective date of this section but not later than September 1,
2004.
SECTION 2.142. CONSOLIDATION OF CERTAIN DIVISIONS AND
ACTIVITIES. (a) Not later than March 1, 2004, the Health and Human
Services Commission shall consolidate the Medicaid post-payment
third-party recovery divisions or activities of the Texas
Department of Human Services, the Medicaid vendor drug program, and
the state's Medicaid claims administrator with the Medicaid
post-payment third-party recovery function.
(b) The Health and Human Services Commission shall use the
commission's Medicaid post-payment third-party recovery contractor
for the consolidated division.
(c) The Health and Human Services Commission shall update
its computer system to facilitate the consolidation.
SECTION 2.143. ABOLITION OF ADVISORY COMMITTEES. (a)
Notwithstanding any other provision of state law, each advisory
committee, as that term is defined by Section 2110.001, Government
Code, created before the effective date of this section that
advises a health and human services agency is abolished on the
effective date of this section unless the committee:
(1) is required by federal law; or
(2) advises an agency with respect to certification or
licensing programs, the regulation of entities providing health and
human services, or the implementation of a duty prescribed under
this article, as determined by the commissioner of health and human
services.
(b) The commissioner of health and human services shall
certify which advisory committees are exempt from abolition under
Subsection (a) of this section and shall publish that certification
in the Texas Register.
(c) An advisory committee that is created on or after the
effective date of this section or that is exempt under Subsection
(b) of this section from abolition shall make recommendations to
the executive director of the health and human services agency the
advisory committee was created to advise and to the commissioner of
health and human services to assist with eliminating or minimizing
overlapping functions or required duties between the health and
human services agencies or between those agencies and the Health
and Human Services Commission.
SECTION 2.144. Community mental health centers may
coordinate with local community health centers, federally
qualified health centers (FQHC), and/or disproportionate share
hospitals for the purpose of accessing local, state, and federal
programs that could result in lower cost pharmaceuticals. In
particular, community mental health centers may form a referral
relationship with community health centers, federally qualified
health centers (FQHC), disproportionate share hospitals, and/or
other eligible entities for the purpose of obtaining federal 340B
pricing for pharmaceuticals. Community mental health centers may
form a referral relationship with community health centers,
federally qualified health centers (FQHC), disproportionate share
hospitals, and/or other eligible entities for the purpose of taking
advantage of 340B or other lower cost drug programs regardless of
any statewide preferred drug list or vendor drug program which may
be adopted.
SECTION 2.145. CHILD HEALTH PLAN PROGRAM WAIVER. Not later
than October 1, 2003, the Health and Human Services Commission
shall request and actively pursue any necessary waivers from a
federal agency or any other appropriate entity to allow families
enrolled in the state Medicaid program to opt into the child health
plan program under Chapter 62, Health and Safety Code, while
retaining the appropriate federal match rate and the child's
entitlement to Medicaid coverage. The waiver shall, on at least an
annual basis, allow families eligible for Medicaid who have
previously opted to enroll their children in the child health plan
program under Chapter 62, Health and Safety Code, to return those
children to the Medicaid program.
SECTION 2.146. STATE CHILD HEALTH PLAN AMENDMENT. (a) In
this section, "group plan" means the group health benefit plan
under the health insurance premium payment reimbursement program
established under Section 62.059, Health and Safety Code.
(b) As soon as possible after the effective date of this
section, the Health and Human Services Commission shall submit for
approval a plan amendment relating to the state child health plan
under 42 U.S.C. Section 1397ff, as amended, as necessary to include
the employers' share of required premiums for coverage of
individuals enrolled in the group plan as expenditures for the
purpose of determining the state children's health insurance
expenditures, as that term is defined by 42 U.S.C. Section
1397ee(d)(2)(B), as amended, for federal match funding for the
child health plan program provided under Chapter 62, Health and
Safety Code.
SECTION 2.147. STATE MEDICAID PLAN AMENDMENT. (a) In this
section, "group plan" means the group health benefit plan under the
health insurance premium payment reimbursement program for
Medicaid recipients established under Section 32.0422, Human
Resources Code.
(b) As soon as possible after the effective date of this
section, the Health and Human Services Commission shall submit an
amendment to the state Medicaid plan as necessary to allow this
state to include the employers' share of required premiums for
coverage of individuals enrolled in the group plan as expenditures
for the purpose of determining this state's Medicaid program
expenditures for federal match funding for the state Medicaid
program.
SECTION 2.148. REPEAL. (a) The following are repealed:
Sections 62.055(b) and (c), 62.056, 62.057, 142.006(d), (e), and
(f), 142.009(i), 142.0176, 252.206(d), and 252.207(b), Health and
Safety Code.
(b) An advisory committee established under Section 62.057,
Health and Safety Code, is abolished on the effective date of this
section.
SECTION 2.149. In the event of a conflict between a
provision of this Act and another Act passed by the 78th
Legislature, Regular Session, 2003, that becomes law, this Act
prevails and controls regardless of the relative dates of
enactment.
SECTION 2.150. FEDERAL AUTHORIZATION OR WAIVER. If before
implementing any provision of this Act a state agency determines
that a waiver or authorization from a federal agency is necessary
for implementation of that provision, the agency affected by the
provision shall request the waiver or authorization and may delay
implementing that provision until the waiver or authorization is
granted.
SECTION 2.151. Any funds that are used by the Texas
Department of Transportation to implement the transportation
services provided in Sections 2.118, 2.119, 2.120, 2.121, 2.122,
2.123, 2.124, and 2.125 of this Act shall be accounted for and
budgeted separately from other funds appropriated to the Texas
Department of Transportation for any other public transportation
program or budget strategy.
SECTION 2.152. EFFECTIVE DATE. Except as otherwise
provided by this article, this article takes effect September 1,
2003.