83R4027 EES/KFF-D
 
  By: Nelson S.B. No. 8
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the provision and delivery of certain health and human
  services in this state, including the provision of those services
  through the Medicaid program and the prevention of fraud, waste,
  and abuse in that program and other programs.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Section 531.008(c), Government Code, is amended
  to read as follows:
         (c)  The executive 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)  long-term care services, as defined by
  Section 22.0011, Human Resources Code;
                     (F)  community-based support services identified
  or provided in accordance with Section 531.02481; and
                     (G)  other health and human services programs, as
  appropriate;
               (2)  the office of inspector general to 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; [and]
               (5)  an internal audit division to conduct a program of
  internal auditing in accordance with [Government Code,] Chapter
  2102; and
               (6)  a data analysis division as provided by Section
  531.0082.
         SECTION 2.  Subchapter A, Chapter 531, Government Code, is
  amended by adding Section 531.0082 to read as follows:
         Sec. 531.0082.  DATA ANALYSIS DIVISION. (a) The data
  analysis division within the commission required by Section
  531.008(c) shall establish, employ, and oversee data analysis
  processes designed to:
               (1)  improve contract management;
               (2)  detect data trends; and
               (3)  identify anomalies relating to service
  utilization, providers, payment methodologies, and compliance with
  requirements in Medicaid and child health plan program managed care
  and fee-for-service contracts.
         (b)  The commission shall assign staff to the data analysis
  division who perform duties only in relation to the division.
         (c)  The data analysis division shall use all available data
  and tools for data analysis when establishing, employing, and
  overseeing data analysis processes under this section.
         (d)  Not later than the 30th day following the end of each
  calendar quarter, the data analysis division shall provide an
  update on the division's activities and findings to the governor,
  the lieutenant governor, the speaker of the house of
  representatives, the chair of the senate finance committee, the
  chair of the house appropriations committee, and the chairs of the
  standing committees of the senate and house of representatives
  having jurisdiction over the Medicaid program.
  SECTION 3.  Subchapter B, Chapter 531, Government Code, is
  amended by adding Section 531.02115 to read as follows:
         Sec. 531.02115.  MARKETING ACTIVITIES BY PROVIDERS
  PARTICIPATING IN MEDICAID OR CHILD HEALTH PLAN PROGRAM.  (a)  A
  provider participating in the Medicaid or child health plan
  program, including a provider participating in the network of a
  managed care organization that contracts with the commission to
  provide services under the Medicaid or child health plan program,
  may not engage in any marketing activity, including any
  dissemination of material or other attempt to communicate, that:
               (1)  involves unsolicited personal contact, including
  by door-to-door solicitation, direct mail, or telephone, with a
  Medicaid client or a parent whose child is enrolled in the Medicaid
  or child health plan program;
               (2)  is directed at the client or parent solely because
  the client or the parent's child is receiving benefits under the
  Medicaid or child health plan program; and
               (3)  is intended to influence the client's or parent's
  choice of provider.
         (b)  In addition to the requirements of Subsection (a), a
  provider participating in the network of a managed care
  organization described by that subsection must comply with the
  marketing guidelines established by the commission under Section
  533.008.
         (c)  Nothing in this section prohibits a provider
  participating in the Medicaid or child health plan program from
  engaging in a marketing activity, including any dissemination of
  material or other attempt to communicate, that is intended to
  influence the choice of provider by a Medicaid client or a parent
  whose child is enrolled in the Medicaid or child health plan
  program, if the marketing activity involves only the general
  dissemination of information, including by television, radio,
  newspaper, or billboard advertisement, and does not involve
  unsolicited personal contact.
         (d)  The executive commissioner may adopt rules as necessary
  to implement this section.
         SECTION 4.  Section 531.02414, Government Code, is amended
  by adding Subsection (g) to read as follows:
         (g)  The commission shall enter into a memorandum of
  understanding with the Texas Department of Motor Vehicles and the
  Texas Department of Public Safety for purposes of obtaining the
  motor vehicle registration and driver's license information of a
  recipient of medical transportation services, or another medical
  assistance recipient requesting those services, to confirm that the
  recipient meets the eligibility criteria for the services requiring
  that recipients have no other means of transportation. The
  commission shall establish a process by which managed care
  organizations contracting with the commission under Chapter 533 may
  request and obtain the information described under this subsection
  for purposes of similarly confirming a medical assistance
  recipient's eligibility for medical transportation services.
         SECTION 5.  Section 531.102(a), Government Code, is amended
  to read as follows:
         (a)  The [commission, through the] commission's office of
  inspector general[,] is responsible for the prevention, detection,
  audit, inspection, review, and investigation of fraud, waste, and
  abuse in the provision and delivery of all health and human services
  in the state, including services through any state-administered
  health or human services program that is wholly or partly federally
  funded, 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.
         SECTION 6.  (a)  Subchapter A, Chapter 533, Government Code,
  is amended by adding Section 533.00254 to read as follows:
         Sec. 533.00254.  DELIVERY OF MEDICAL TRANSPORTATION PROGRAM
  SERVICES. (a)  In this section, "medical transportation program"
  has the meaning assigned by Section 531.02414.
         (b)  Subject to Subsection (c), the commission shall provide
  medical transportation program services through a managed care
  delivery model.
         (c)  The commission may delay providing medical
  transportation program services through a managed care delivery
  model in areas of this state in which the commission on September 1,
  2013, is piloting a full-risk transportation broker model until:
               (1)  the date the contract entered into with the broker
  expires; or
               (2)  an earlier date, if the commission determines that
  earlier implementation is feasible.
         (b)  The Health and Human Services Commission shall begin
  providing medical transportation program services through the
  delivery model required by Section 533.00254, Government Code, as
  added by this section, not later than March 1, 2014, subject to
  Section 533.00254(c), Government Code, as added by this section.
         SECTION 7.  Section 32.0322, Human Resources Code, is
  amended by amending Subsection (b) and adding Subsections (b-1),
  (e), (f), and (g) to read as follows:
         (b)  Subject to Subsections (b-1) and (e), the [The]
  executive commissioner of the Health and Human Services Commission
  by rule shall establish criteria for the department or the
  commission's office of inspector general to suspend a provider's
  billing privileges under the medical assistance program, revoke a
  provider's enrollment under the program, or deny a person's
  application to enroll as a provider under the program based on:
               (1)  the results of a criminal history check;
               (2)  any exclusion or debarment of the provider from
  participation in a state or federally funded health care program;
               (3)  the provider's failure to bill for medical
  assistance or refer clients for medical assistance within a
  12-month period; or
               (4)  any of the provider screening or enrollment
  provisions contained in 42 C.F.R. Part 455, Subpart E.
         (b-1)  In adopting rules under this section and except as
  provided by Subsection (g), the executive commissioner of the
  Health and Human Services Commission shall require revocation of a
  provider's enrollment or denial of a person's application for
  enrollment as a provider under the medical assistance program if
  the person has been excluded or debarred from participation in a
  state or federally funded health care program as a result of:
               (1)  a criminal conviction or finding of civil or
  administrative liability for committing a fraudulent act, theft,
  embezzlement, or other financial misconduct under a state or
  federally funded health care program; or
               (2)  a criminal conviction for committing an act under
  a state or federally funded health care program that caused bodily
  injury to:
                     (A)  a person who is 65 years of age or older;
                     (B)  a person with a disability; or
                     (C)  a person under 18 years of age.
         (e)  The department may reinstate a provider's enrollment
  under the medical assistance program or grant a person's previously
  denied application to enroll as a provider, including a person
  described by Subsection (b-1), if the department finds:
               (1)  good cause to determine that it is in the best
  interest of the medical assistance program; and
               (2)  the person has not committed an act that would
  require revocation of a provider's enrollment or denial of a
  person's application to enroll since the person's enrollment was
  revoked or application was denied, as appropriate.
         (f)  The department must support a determination made under
  Subsection (e) with written findings of good cause for the
  determination.
         (g)  The executive commissioner of the Health and Human
  Services Commission may not adopt rules under Subsection (b-1) that
  would require the revocation of enrollment of a provider who
  operates a nursing facility or an ICF-MR facility subject to
  Section 36.005(a)(2).
         SECTION 8.  Section 36.005(b-1), Human Resources Code, is
  amended to read as follows:
         (b-1)  The period of ineligibility begins on the date on
  which the judgment finding the provider liable under Section 36.052
  is entered by the trial court [determination that the provider is
  liable becomes final].
         SECTION 9.  Subchapter C, Chapter 36, Human Resources Code,
  is amended by adding Section 36.1041 to read as follows:
         Sec. 36.1041.  NOTIFICATION OF SETTLEMENT. (a)  Not later
  than the 10th day after the date a person described by Section
  36.104(b) reaches a proposed settlement agreement with a defendant,
  the person must notify the attorney general.
         (b)  Not later than the 30th day after the date the attorney
  general receives notice under Subsection (a), the attorney general
  shall file any objections to the terms of the proposed settlement
  agreement with the court.
         (c)  On filing of objections under Subsection (b), the court
  shall conduct a hearing. On a showing of good cause, the hearing
  may be held in camera. If, after the hearing, the court determines
  that the proposed settlement is fair, adequate, and reasonable
  under all the circumstances, the court may allow the parties to
  settle notwithstanding the attorney general's objection.
         SECTION 10.  (a)  The Health and Human Services Commission
  shall:
               (1)  as soon as practicable after the effective date of
  this Act, conduct a thorough review of the laws and policies related
  to the use of non-emergent services provided by ambulance providers
  under the medical assistance program established under Chapter 32,
  Human Resources Code;
               (2)  not later than January 1, 2014, make
  recommendations to the legislature regarding suggested changes to
  the law that would reduce the incidence of and opportunities for
  fraud, waste, and abuse with respect to the activities described by
  Subdivision (1) of this subsection; and
               (3)  amend the policies described by Subdivision (1) of
  this subsection as necessary to assist in accomplishing the goals
  described by Subdivision (2) of this subsection.
         (b)  This section expires September 1, 2015.
         SECTION 11.  (a)  The Department of State Health Services
  shall:
               (1)  as soon as practicable after the effective date of
  this Act, conduct a thorough review of the laws and policies related
  to the licensure of nonemergency transportation providers;
               (2)  not later than January 1, 2014, make
  recommendations to the legislature regarding suggested changes to
  the law that would reduce the incidence of and opportunities for
  fraud, waste, and abuse with respect to the activities described by
  Subdivision (1) of this subsection; and
               (3)  amend the policies described by Subdivision (1) of
  this subsection as necessary to assist in accomplishing the goals
  described by Subdivision (2) of this subsection.
         (b)  This section expires September 1, 2015.
         SECTION 12.  (a)  The Texas Medical Board shall:
               (1)  as soon as practicable after the effective date of
  this Act, conduct a thorough review of the laws and policies related
  to:
                     (A)  the delegation of health care services by
  physicians or medical directors to qualified emergency medical
  services personnel; and
                     (B)  physicians' assessment of patients' needs for
  purposes of ambulatory transfer or transport or other purposes;
               (2)  not later than January 1, 2014, make
  recommendations to the legislature regarding suggested changes to
  the law that would reduce the incidence of and opportunities for
  fraud, waste, and abuse with respect to the activities described by
  Subdivision (1) of this subsection; and
               (3)  amend the policies described by Subdivision (1) of
  this subsection as necessary to assist in accomplishing the goals
  described by Subdivision (2) of this subsection.
         (b)  This section expires September 1, 2015.
         SECTION 13.  (a)  This section is a clarification of
  legislative intent regarding Section 32.024(s), Human Resources
  Code, and a validation of certain Health and Human Services
  Commission acts and decisions.
         (b)  In 1999, the legislature became aware that certain
  children enrolled in the Medicaid program were receiving treatment
  under the program outside the presence of a parent or another
  responsible adult. The treatment of unaccompanied children under
  the Medicaid program resulted in the provision of unnecessary
  services to those children, the exposure of those children to
  unnecessary health and safety risks, and the submission of
  fraudulent claims by Medicaid providers.
         (c)  In addition, in 1999, the legislature became aware of
  allegations that certain Medicaid providers were offering money and
  other gifts in exchange for a parent's or child's consent to receive
  unnecessary services under the Medicaid program. In some cases, a
  child was offered money or gifts in exchange for the parent's or
  child's consent to have the child transported to a different
  location to receive unnecessary services. In some of those cases,
  once transported, the child received no treatment and was left
  unsupervised for hours before being transported home. The
  provision of money and other gifts by Medicaid providers in
  exchange for parents' or children's consent to services deprived
  those parents and children of the right to choose a Medicaid
  provider without improper inducement.
         (d)  In response, in 1999, the legislature enacted Chapter
  766 (H.B. 1285), Acts of the 76th Legislature, Regular Session,
  which amended Section 32.024, Human Resources Code, by amending
  Subsection (s) and adding Subsection (s-1). As amended, Section
  32.024(s), Human Resources Code, requires that a child's parent or
  guardian or another adult authorized by the child's parent or
  guardian accompany the child at a visit or screening under the early
  and periodic screening, diagnosis, and treatment program in order
  for a Medicaid provider to be reimbursed for services provided at
  the visit or screening. As filed, the bill required a child's
  parent or guardian to accompany the child. The house committee
  report added the language allowing an adult authorized by the
  child's parent or guardian to accompany the child in order to
  accommodate a parent or guardian for whom accompanying the parent's
  or guardian's child to each visit or screening would be a hardship.
         (e)  The principal purposes of Chapter 766 (H.B. 1285), Acts
  of the 76th Legislature, Regular Session, 1999, were to prevent
  Medicaid providers from committing fraud, encourage parental
  involvement in and management of health care of children enrolled
  in the early and periodic screening, diagnosis, and treatment
  program, and ensure the safety of children receiving services under
  the Medicaid program. The addition of the language allowing an
  adult authorized by a child's parent or guardian to accompany the
  child furthered each of those purposes.
         (f)  The legislature, in amending Section 32.024(s), Human
  Resources Code, understood that:
               (1)  the effectiveness of medical, dental, and therapy
  services provided to a child improves when the child's parent or
  guardian actively participates in the delivery of those services;
               (2)  a parent is responsible for the safety and
  well-being of the parent's child, and that a parent cannot casually
  delegate this responsibility to a stranger;
               (3)  a parent may not always be available to accompany
  the parent's child at a visit to the child's doctor, dentist, or
  therapist; and
               (4)  Medicaid providers and their employees and
  associates have a financial interest in the delivery of services
  under the Medicaid program and, accordingly, cannot fulfill the
  responsibilities of a parent or guardian when providing services to
  a child.
         (g)  The legislature declares that a Medicaid provider, or an
  employee or associate of the Medicaid provider, is not "another
  adult" within the meaning of Section 32.024(s), Human Resources
  Code, from the date the section was amended, and may not be
  authorized by the parent or guardian of a child to accompany the
  child at a visit or screening under the early and periodic
  screening, diagnosis, and treatment program at which the Medicaid
  provider provides services to the child. Any interpretation of
  Section 32.024(s), Human Resources Code, that allows a Medicaid
  provider, or an employee or associate of the Medicaid provider, to
  be authorized to accompany a child at a visit or screening at which
  the Medicaid provider provides services is contrary to the intent
  of the legislature.
         (h)(1)  On March 15, 2012, the Health and Human Services
  Commission notified certain Medicaid providers that state law and
  commission policy require a child's parent or guardian or another
  properly authorized adult to accompany a child receiving services
  under the Medicaid program. This notice followed the commission's
  discovery that some providers were transporting children from
  schools to therapy clinics and other locations to receive therapy
  services. Although the children were not accompanied by a parent or
  guardian during these trips, the providers were obtaining
  reimbursement for the trips under the Medicaid medical
  transportation program. The commission clarified in the notice that
  in order for a provider to be reimbursed for transportation
  services provided to a child under the Medicaid medical
  transportation program, the child must be accompanied by the
  child's parent or guardian or another adult who is not the provider
  and whom the child's parent or guardian has authorized to accompany
  the child by submitting signed, written consent to the provider.
               (2)  In May 2012, a lawsuit was filed to enjoin the
  Health and Human Services Commission from enforcing Section
  32.024(s), Human Resources Code, and 1 T.A.C. Section 380.207, as
  interpreted in certain notices issued by the commission. A state
  district court enjoined the commission from denying eligibility to
  a child for transportation services under the Medicaid medical
  transportation program if the child's parent or guardian does not
  accompany the child, provided that the child's parent or guardian
  authorizes any other adult to accompany the child. The court also
  enjoined the commission from requiring as a condition for a
  provider to be reimbursed for services provided to a child during a
  visit or screening under the early and periodic screening,
  diagnosis, and treatment program that the child be accompanied by
  the child's parent or guardian, provided that the child's parent or
  guardian authorizes another adult to accompany the child. The
  state has filed a notice of appeal of the court's order.
               (3)  Additionally, the office of inspector general of
  the Health and Human Services Commission has found that several
  Medicaid providers have knowingly offered and provided inducements
  to individuals enrolled in the Medicaid program to influence
  decisions by the individuals relating to selecting a Medicaid
  provider and receiving goods and services under the Medicaid
  program. Specifically, some providers have offered, arranged for,
  and provided free transportation services to influence
  individuals' selection of a provider in violation of federal law.
  The office of inspector general has the authority to sanction these
  violations under 1 T.A.C. Chapter 371. Accordingly, in late July
  and early August 2012, the office of inspector general issued
  notices of intent to assess penalties against providers whom the
  office of inspector general found to have committed these
  violations.
               (4)  The legislature declares that a governmental
  action taken or a decision made by the Health and Human Services
  Commission before the effective date of this Act to implement or
  enforce a policy requiring that, in order for a Medicaid provider to
  be reimbursed for services provided to a child under the early and
  periodic screening, diagnosis, and treatment program, the child
  must be accompanied by the child's parent or guardian or another
  adult who is not the provider or the provider's employee or
  associate and whom the child's parent or guardian has authorized to
  accompany the child by submitting signed, written consent to the
  provider pursuant to Section 32.024(s), Human Resources Code, is
  conclusively presumed, as of the date the action was taken or the
  decision was made, to be valid and to have occurred in accordance
  with all applicable law.
               (5)  The legislature also declares that, without
  determination of the weight or sufficiency of the evidence relied
  upon, the imposition of sanctions by the office of inspector
  general of the Health and Human Services Commission on Medicaid
  providers whom the office of inspector general has found to have
  offered and provided inducements to individuals enrolled in the
  Medicaid program in violation of federal law is a valid exercise of
  that office's authority to enforce laws that regulate fraud, waste,
  and abuse in the Medicaid program.
               (6)  This section does not apply to:
                     (A)  an action or decision that was void at the
  time the action was taken or the decision was made;
                     (B)  an action or decision that violates federal
  law or the terms of a federal waiver; or
                     (C)  an action or decision that, under a statute
  of this state or the United States, was a misdemeanor or felony at
  the time the action was taken or the decision was made.
         SECTION 14.  As soon as practicable after the effective date
  of this Act, the executive commissioner of the Health and Human
  Services Commission shall establish the data analysis division
  required under Section 531.008(c)(6), Government Code, as added by
  this Act. The data analysis division shall provide the initial
  update required under Section 531.0082(d), Government Code, as
  added by this Act, not later than the 30th day after the last day of
  the first complete calendar quarter occurring after the date the
  division is established.
         SECTION 15.  The amendment by this Act of Section
  36.005(b-1), Human Resources Code, is intended to clarify rather
  than change existing law.
         SECTION 16.  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 17.  This Act takes effect September 1, 2013.