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2005 Texas Human Resources Code CHAPTER 32. MEDICAL ASSISTANCE PROGRAM
HUMAN RESOURCES CODE CHAPTER 32. MEDICAL ASSISTANCE PROGRAM SUBCHAPTER A. GENERAL PROVISIONS § 32.001. PURPOSE OF CHAPTER. The purpose of this chapter is to enable the state to provide medical assistance on behalf of needy individuals and to enable the state to obtain all benefits for those persons authorized under the Social Security Act or any other federal act. Acts 1979, 66th Leg., p. 2348, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. § 32.002. CONSTRUCTION OF CHAPTER. (a) This chapter shall be liberally construed and applied in relation to applicable federal laws and regulations so that adequate and high quality health care may be made available to all children and adults who need the care and are not financially able to pay for it. (b) If a provision of this chapter conflicts with a provision of the Social Security Act or any other federal act and renders the state program out of conformity with federal law to the extent that federal matching money is not available to the state, the conflicting provision of state law shall be inoperative to the extent of the conflict but shall not affect the remainder of this chapter. Acts 1979, 66th Leg., p. 2348, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. § 32.003. DEFINITIONS. In this chapter: (1) "Board" means the Health and Human Services Commission or the governing body of an agency operating part of the medical assistance program, as appropriate. (2) "Commissioner" means the Health and Human Services Commission or the commissioner or executive director of an agency operating part of the medical assistance program, as appropriate. (3) "Department" means the Health and Human Services Commission or an agency operating part of the medical assistance program, as appropriate. (4) "Medical assistance" includes all of the health care and related services and benefits authorized or provided under federal law for needy individuals of this state. Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1995, 74th Leg., ch. 6, § 2, eff. March 23, 1995.SUBCHAPTER B. ADMINISTRATIVE PROVISIONS § 32.021. ADMINISTRATION OF THE PROGRAM. (a) The department is the state agency designated to administer the medical assistance program provided in this chapter. (b) The department shall enter into agreements with any federal agency designated by federal law to administer medical assistance when the department determines the agreements to be compatible with the state's participation in the medical assistance program and within the limits of appropriated funds. The department shall cooperate with federal agencies designated by federal law to administer medical assistance in any reasonable manner necessary to qualify for federal funds. (c) The department shall establish methods of administration and adopt necessary rules for the proper and efficient operation of the program. (d) The department shall include in its contracts for the delivery of medical assistance by nursing facilities provisions for monetary penalties to be assessed for violations as required by 42 U.S.C. Section 1396r, including without limitation the Omnibus Budget Reconciliation Act (OBRA), P. L. 100-203, Nursing Home Reform Amendments of 1987, provided that the department shall: (1) provide for an informal dispute resolution process in the Health and Human Services Commission as provided by Section 531.058, Government Code; and (2) develop rules to adjudicate claims in contested cases, including claims unresolved by the informal dispute resolution process of the Health and Human Services Commission. (e) Rules governing the application of penalties shall include the following: (1) specific and objective criteria which describe the scope and severity of a contract violation which results in a recommendation for each specific penalty. Penalties must be appropriate to the violation, and the most severe financial penalties must be reserved for situations which create an immediate and serious threat to the health and safety of residents; "immediate and serious threat" means a situation in which there is a high probability that serious harm or injury to patients could occur at any time or already has occurred and may well occur again if patients are not protected effectively from the harm or if the threat is not removed; (2) a system to ensure standard and consistent application of penalties among surveyors and different areas of the state; (3) due process for nursing facilities providers, including an appeals procedure consistent with Chapter 2001, Government Code; and (4) per diem and/or minimum penalties. The department may by rule prescribe a minimum penalty period; however, once a facility gives the department notice that deficiencies have been corrected, if surveyors are unable to revisit the facility within five days and the deficiencies are later shown to be corrected, the per diem penalties cease as of the day the facility gave notice to the department or on the last day of the minimum penalty period established by the department, whichever is later. (f) To encourage facilities to provide the best possible care, the department shall develop an incentive program to recognize facilities providing the highest quality care to Medicaid residents. (g) Funds collected as a result of the imposition of penalties shall be applied to the protection of the health or property of residents of nursing facilities, including the cost of relocation of residents to other facilities and maintenance or operation of a facility pending correction of deficiencies or closure, or to incentive programs which recognize the highest quality care to residents who are entitled to Medicaid. (h) Medicaid nursing facilities shall also comply with state licensure rules, which may be more stringent than the requirements for certification. The department shall use appropriate civil, administrative, or criminal remedies authorized by state or federal law with respect to a facility that is in violation of a certification or licensing requirement. (i) Repealed by Acts 2003, 78th Leg., ch. 204, § 16.03(1). (j) Repealed by Acts 2001, 77th Leg., ch. 1284, § 3.04, eff. June 15, 2001. (k) Repealed by Acts 2003, 78th Leg., ch. 204, § 16.03(1). (l) The department may not include as a reimbursable item to a nursing facility an administrative or civil penalty assessed against the facility under this chapter or under Chapter 242, Health and Safety Code. (m) Notwithstanding any provision of law to the contrary, the department shall terminate a nursing facility's provider agreement if the department has imposed required Category 2 or Category 3 remedies on the facility three times within a 24-month period unless the department makes an affirmative finding that good cause exists to waive this requirement to facilitate a change in ownership to protect residents of a facility. In this subsection, "Category 2 remedies" and "Category 3 remedies" have the meanings assigned by 42 C.F.R. Section 488.408. (n) An assessment of monetary penalties under this section is subject to arbitration under Subchapter J, Chapter 242, Health and Safety Code. (o) In any circumstance in which a nursing facility would otherwise be required to admit a resident transferred from another facility, because of an emergency or otherwise, the nursing facility may not admit a resident whose needs cannot be met through service from the facility's staff or in cooperation with community resources or other providers under contract. If a nursing facility refuses to admit a resident under this subsection, the nursing facility shall provide a written statement of the reasons for the refusal to the department within a period specified by department rule. A nursing facility that fails to provide the written statement, or that includes false or misleading information in the statement, is subject to monetary penalties assessed in accordance with this chapter. (p) In order to increase the personal needs allowance under Section 32.024(v), as added by Chapter 1333, Acts of the 76th Legislature, Regular Session, 1999, the department shall develop an early warning system to detect fraud in the handling of the personal needs allowance and other funds of residents of long-term care facilities. (q) The department shall include in its contracts for the delivery of medical assistance by nursing facilities clearly defined minimum standards that relate directly to the quality of care for residents of those facilities. The department shall consider the recommendations made by the nursing facility quality assurance team under Section 32.060 in establishing the standards. The department shall include in each contract: (1) specific performance measures by which the department may evaluate the extent to which the nursing facility is meeting the standards; and (2) provisions that allow the department to terminate the contract if the nursing facility is not meeting the standards. (r) The department may not award a contract for the delivery of medical assistance to a nursing facility that does not meet the minimum standards that would be included in the contract as required by Subsection (q). The department shall terminate a contract for the delivery of medical assistance by a nursing facility that does not meet or maintain the minimum standards included in the contract in a manner consistent with the terms of the contract. (s) Not later than November 15 of each even-numbered year, the department shall submit a report to the legislature regarding nursing facilities that contract with the department to provide medical assistance under this chapter and other nursing facilities with which the department was prohibited to contract as provided by Subsection (r). The department may include the report required under this section with the report made by the long-term care legislative oversight committee as required by Section 242.654, Health and Safety Code. The report must include: (1) recommendations for improving the quality of information provided to consumers about the facilities; (2) the minimum standards and performance measures included in the department's contracts with those facilities; (3) the performance of the facilities with regard to the minimum standards; (4) the number of facilities with which the department has terminated a contract or to which the department will not award a contract because the facilities do not meet the minimum standards; and (5) the overall impact of the minimum standards on the quality of care provided by the facilities, consumers' access to facilities, and cost of care. Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.22, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 1049, § 1, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 2.01, eff. Sept. 1, 1997; Acts 2001, 77th Leg., ch. 974, § 2, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1284, § 3.01, 3.04, 7.04, eff. June 15, 2001; Acts 2003, 78th Leg., ch. 198, § 2.92(a), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 204, § 16.03(1), eff. Sept. 1, 2003. § 32.0211. RESTRICTIONS ON MEMBERS OF THE BOARD, COMMISSIONERS, AND THEIR PARTNERS. (a) After service in the department ends, a former member of the board or a former commissioner may not knowingly represent a person before an agency or court: (1) in a matter related to the medical assistance program in which the department or the federal government has a direct interest and in which the board member or commissioner participated personally while employed with the department; or (2) for two years after the date on which service ends in a matter related to the medical assistance program if the department or the federal government has a direct interest in the matter, the matter was pending during his last year of service to the department, and the matter was one for which the board member or commissioner had responsibility. (b) Subsection (a) of this section does not apply to a former board member or commissioner who holds one of the following positions and is acting in the scope of that position: (1) employee or officer of federal, state, or local government; (2) employee of a nonprofit hospital or medical research organization; or (3) employee of an accredited degree-granting college or university. (c) A current board member or commissioner may not knowingly participate in the course of his service in a matter related to the medical assistance program in which the department or the federal government has a direct interest and in which he, his spouse, minor child, or business partner has a substantial financial interest. (d) A business partner of a current board member or commissioner may not knowingly represent a person before an agency or court in a matter related to the medical assistance program: (1) in which the board member or commissioner participates or has participated personally and substantially; or (2) that is under the official responsibility of the board member or commissioner. (e) Past or present board members or commissioners are subject to a civil penalty of $5,000 for each violation of this section. A partner of a current board member or commissioner is subject to a civil penalty of $2,500 for each violation of this section. Each appearance before an agency or court constitutes a separate offense. (f) If it appears that this section has been violated, the department may request the attorney general to conduct a suit in the name of the State of Texas to enjoin the prohibited activity and to recover the penalty provided for in this section. Added by Acts 1981, 67th Leg., p. 755, ch. 287, § 1, eff. Aug. 31, 1981. § 32.0212. DELIVERY OF MEDICAL ASSISTANCE. Notwithstanding any other law and subject to Section 533.0025, Government Code, the department shall provide medical assistance for acute care through the Medicaid managed care system implemented under Chapter 533, Government Code. Added by Acts 2003, 78th Leg., ch. 198, § 2.95, eff. Sept. 1, 2003. § 32.0213. NURSING FACILITY BED CERTIFICATION AND DECERTIFICATION. (a) The department by rule shall establish procedures for: (1) controlling the number of Medicaid beds in nursing facilities; (2) decertification of unused Medicaid beds in nursing facilities; and (3) reallocation of nursing home beds decertified under Subdivision (2) to other nursing facilities. (b) The procedures established under this section must take into account the occupancy rate of the nursing facility. (c) The department may exempt a nursing facility from the procedures established under this section if the facility: (1) is affiliated with a state-supported medical school; (2) is located on land owned or controlled by the state-supported medical school; and (3) serves as a teaching facility for physicians and related health care professionals. Added by Acts 1997, 75th Leg., ch. 1159, § 2.02, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1487, § 1, eff. June 19, 1999. § 32.0215. HOME OR COMMUNITY CARE PROVIDERS: CIVIL MONETARY PENALTIES. (a) The department may include in a contract for the delivery of medical assistance by a home or community care provider a provision for monetary penalties to be assessed for a contract violation or any violation of home or community care requirements, as required by 42 U.S.C. Section 1396t(j). (b) The department shall develop rules governing the application of civil money penalties, including rules prescribing: (1) criteria that describe when and how a civil money penalty may be assessed and the amount of the penalty; (2) a system to ensure standard and consistent application of the penalties throughout the state; and (3) an administrative appeals process to adjudicate claims in contested cases in accordance with Chapter 2001, Government Code. (c) Rules adopted under this section must be designed to minimize the time between the identification of a violation and the final imposition of a penalty. Rules adopted under this section may authorize the imposition of a penalty that assesses and collects a monetary penalty, with interest, for a minimum penalty period and on a subsequent per diem basis. (d) A penalty must be appropriate to the violation. The department may assess incrementally more severe penalties for repeated or uncorrected violations. (e) The department shall review a penalized provider within 10 working days after the provider notifies the department that the deficiency that caused the imposition of the penalty has been corrected. If the department is unable to review the provider within that 10-working-day period, the penalty ceases on the earlier of the last day of the minimum penalty period or the date the provider gives notice to the department. (f) Money collected as a result of the imposition of penalties may be used for the protection of the health or property of an individual whose personal property was lost due to a failure of a home or community care provider to meet the requirements for participation as a provider of home or community care. Added by Acts 1993, 73rd Leg., ch. 132, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995. § 32.022. MEDICAL AND HOSPITAL CARE ADVISORY COMMITTEES. (a) The board, on the recommendation of the commissioner, shall appoint a medical care advisory committee to advise the board and the department in developing and maintaining the medical assistance program and in making immediate and long-range plans for reaching the program's goal of providing access to high quality, comprehensive medical and health care services to medically indigent persons in the state. To ensure that qualified applicants receive services, the committee shall consider changes in the process the department uses to determine eligibility. (b) The board shall appoint the committee in compliance with the requirements of the federal agency administering medical assistance. The appointments shall provide for a balanced representation of the general public, providers, consumers, and other persons, state agencies, or groups with knowledge of and interest in the committee's field of work. (c) The department shall adopt rules for membership on the committee to provide for efficiency of operation, rotation, stability, and continuity. (d) The board, on the recommendation of the commissioner, may appoint regional and local medical care advisory committees and other advisory committees as considered necessary. (e) The board, on the recommendation of the commissioner, shall appoint a hospital payment advisory committee. The committee shall advise the board and the department on necessary changes in hospital payment methodologies for inpatient hospital prospective payments and on adjustments for disproportionate share hospitals that will ensure reasonable, adequate, and equitable payments to hospital providers and that will address the essential role of rural hospitals. The board shall appoint to the committee persons with knowledge of and an interest in hospital payment issues. Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 2.01, eff. Sept. 1, 1987; Acts 1989, 71st Leg., ch. 1027, § 10, eff. Sept. 1, 1989. § 32.023. COOPERATION WITH OTHER STATE AGENCIES. (a) The department's plan for administering medical assistance must include procedures for using health services administered by other state agencies pursuant to cooperative arrangements. (b) The department may enter into agreements with appropriate state agencies that will enable the department to implement Title XIX of the federal Social Security Act to provide medical assistance for individuals in institutions or in alternate care arrangements. The agreements must comply with federal law and rules. The department may make medical assistance payments in accordance with the agreements. The agreements are not subject to the Interagency Cooperation Act (Article 4413(32), Vernon's Texas Civil Statutes). (c) State agencies responsible for the administration or supervision of facilities to which medical assistance payments may be made under federal law shall enter into the agreements with the department and maintain compliance with the agreements so that the department may receive federal matching funds to support the medical assistance program. (d) The department may pay medical assistance to other facilities as required under federal law and rules. Acts 1979, 66th Leg., p. 2349, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. § 32.0231. ANNOUNCEMENT OF FUNDING OR PROGRAM CHANGE. (a) The department shall publish notice in the Texas Register of: (1) any attempt to obtain a waiver of federal regulations in the medical assistance program; (2) any attempt to obtain or the receipt of funding under Title XIX of the federal Social Security Act (42 U.S.C. Section 301 et seq.) for a pilot program; and (3) any amendment to the state medical assistance plan. (b) The notice must include the name and telephone number of a department employee who can provide information relating to the matter for which notice was published under this section. (c) The department shall provide to any requestor information relating to a matter for which notice was published, including the effect and cost of the change, any possible cost savings, the criteria for receiving services, and the number of people to be served. Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989. § 32.024. AUTHORITY AND SCOPE OF PROGRAM; ELIGIBILITY. (a) The department shall provide medical assistance to all persons who receive financial assistance from the state under Chapter 31 of this code and to other related groups of persons if the provision of medical assistance to those persons is required by federal law and rules as a condition for obtaining federal matching funds for the support of the medical assistance program. (b) The department may provide medical assistance to other persons who are financially unable to meet the cost of medical services if federal matching funds are available for that purpose. The department shall adopt rules governing the eligibility of those persons for the services. (c) The department shall establish standards governing the amount, duration, and scope of services provided under the medical assistance program. The standards may not be lower than the minimum standards required by federal law and rule as a condition for obtaining federal matching funds for support of the program, and may not be lower than the standards in effect on August 27, 1967. Standards or payments for the vendor drug program may not be lower than those in effect on January 1, 1973. (d) The department may establish standards that increase the amount, duration, and scope of the services provided only if federal matching funds are available for the optional services and payments and if the department determines that the increase is feasible and within the limits of appropriated funds. The department may establish and maintain priorities for the provision of the optional medical services. (e) The department may not authorize the provision of any service to any person under the program unless federal matching funds are available to pay the cost of the service. (f) The department shall set the income eligibility cap for persons qualifying for nursing home care at an amount that is not less than $1,104 and that does not exceed the highest income for which federal matching funds are payable. The department shall set the cap at a higher amount than the minimum provided by this subsection if appropriations made by the legislature for a fiscal year will finance benefits at the higher cap for at least the same number of recipients of the benefits during that year as were served during the preceding fiscal year, as estimated by the department. In setting an income eligibility cap under this subsection, the department shall consider the cost of the adjustment required by Subsection (g) of this section. (g) During a fiscal year for which the cap described by Subsection (f) of this section has been set, the department shall adjust the cap in accordance with any percentage change in the amount of benefits being paid to social security recipients during the year. (h) Subject to the amount of the cap set as provided by Subsections (f) and (g) of this section, and to the extent permitted by federal law, the income eligibility cap for community care for aged and disabled persons shall be the same as the income eligibility cap for nursing home care. The department shall ensure that the eligibility requirements for persons receiving other services under the medical assistance program are not affected.Text of subsec. (i) as amended by Acts 2003, 78th Leg., ch. 198, § 2.96 (i) The department in its adoption of rules may establish a medically needy program that serves pregnant women, children, and caretakers who have high medical expenses, subject to availability of appropriated funds.Text of subsec. (i) as amended by Acts 2003, 78th Leg., ch. 1251, § 6 (i) Subject to appropriated state funds, the department in its adoption of rules shall establish a medically needy program that serves pregnant women, children, and caretakers who have high medical expenses. (j) The department in its adoption of rules shall in fiscal year 1990 restore three percent of the 10 percent reduction in provider reimbursement. (k) The department in its adoption of rules shall in fiscal year 1991 restore 4.5 percent of the 10 percent reduction in provider reimbursement. (l) The department shall set the income eligibility cap for medical assistance for pregnant women and infants up to age one at not less than 130 percent of the federal poverty guidelines. (m) The department shall set the income eligibility cap for medical assistance for children up to age four at not less than 100 percent of the federal poverty guidelines for state fiscal year 1990 and for children up to age six for state fiscal year 1991. (n) The department in its adoption of rules and standards governing the scope of hospital and long-term services shall authorize the providing of respite care by hospitals. (o) The department, in its rules and standards governing the scope of hospital and long-term services, shall establish a swing bed program in accordance with federal regulations to provide reimbursement for skilled nursing patients who are served in hospital settings provided that the length of stay is limited to 30 days per year and the hospital is located in a county with a population of 100,000 or less. If the swing beds are used for more than one 30-day length of stay per year, per patient, the hospital must comply with the Minimum Licensing Standards as mandated by Chapter 242, Health and Safety Code, and the Medicaid standards for nursing home certification, as promulgated by the department. (p) The department shall provide home respiratory therapy services for ventilator-dependent persons to the extent permitted by federal law. (q) The department shall provide physical therapy services. (r) The department, from funds otherwise appropriated to the department for the early and periodic screening, diagnosis, and treatment program, shall provide to a child who is 14 years of age or younger, permanent molar sealants as dental service under that program as follows: (1) sealant shall be applied only to the occlusal buccal and lingual pits and fissures of a permanent molar within four years of its eruption; (2) teeth to be sealed must be free of proximal caries and free of previous restorations on the surface to be sealed; (3) if a second molar is the prime tooth to be sealed, a non-restored first molar may be sealed at the same sitting, if the fee for the first molar sealing is no more than half the usual sealant fee; (4) the sealing of premolars and primary molars will not be reimbursed; and (5) replacement sealants will not be reimbursed. (s) The department, in its rules governing the early and periodic screening, diagnosis, and treatment program, shall: (1) revise the periodicity schedule to allow for periodic visits at least as often as the frequency recommended by the American Academy of Pediatrics and allow for interperiodic screens without prior approval when there are indications that it is medically necessary; and (2) require, as a condition for eligibility for reimbursement under the program for the cost of services provided at a visit or screening, that a child younger than 15 years of age be accompanied at the visit or screening by: (A) the child's parent or guardian; or (B) another adult, including an adult related to the child, authorized by the child's parent or guardian to accompany the child. (s-1) Subsection (s)(2) does not apply to services provided by a school health clinic, Head Start program, or child-care facility, as defined by Section 42.002, if the clinic, program, or facility: (1) obtains written consent to the services from the child's parent or guardian within the one-year period preceding the date on which the services are provided, and that consent has not been revoked; and (2) encourages parental involvement in and management of the health care of children receiving services from the clinic, program, or facility. (t) The department by rule shall require a physician, nursing facility, health care provider, or other responsible party to obtain authorization from the department or a person authorized to act on behalf of the department before an ambulance is used to transport a recipient of medical assistance under this chapter in circumstances not involving an emergency. The rules must provide that: (1) except as provided by Subdivision (3), a request for authorization must be evaluated based on the recipient's medical needs and may be granted for a length of time appropriate to the recipient's medical condition; (2) except as provided by Subdivision (3), a response to a request for authorization must be made not later than 48 hours after receipt of the request; (3) a request for authorization must be immediately granted and must be effective for a period of 180 days from the date of issuance if the request includes a written statement from a physician that: (A) states that alternative means of transporting the recipient are contraindicated; and (B) is dated not earlier than the 60th day before the date on which the request for authorization is made; (4) a person denied payment for ambulance services rendered is entitled to payment from the nursing facility, health care provider, or other responsible party that requested the services if: (A) payment under the medical assistance program is denied because of lack of prior authorization; and (B) the person provides the nursing facility, health care provider, or other responsible party with a copy of the bill for which payment was denied; and (5) a person denied payment for services rendered because of failure to obtain prior authorization or because a request for prior authorization was denied is entitled to appeal the denial of payment to the department. (t-1) The department, in its rules governing the medical transportation program, may not prohibit a recipient of medical assistance from receiving transportation services through the program to obtain renal dialysis treatment on the basis that the recipient resides in a nursing facility. (u) The department by rule shall require a health care provider who arranges for durable medical equipment for a child who receives medical assistance under this chapter to: (1) ensure that the child receives the equipment prescribed, the equipment fits properly, if applicable, and the child or the child's parent or guardian, as appropriate considering the age of the child, receives instruction regarding the equipment's use; and (2) maintain a record of compliance with the requirements of Subdivision (1) in an appropriate location. (v) The department by rule shall provide a screening test for hearing loss in accordance with Chapter 47, Health and Safety Code, and any necessary diagnostic follow-up care related to the screening test to a child younger than 30 days old who receives medical assistance. (w) The department shall set a personal needs allowance of not less than $45 a month for a resident of a convalescent or nursing home or related institution licensed under Chapter 242, Health and Safety Code, personal care facility, ICF-MR facility, or other similar long-term care facility who receives medical assistance. The department may send the personal needs allowance directly to a resident who receives Supplemental Security Income (SSI) (42 U.S.C. Section 1381 et seq.). This subsection does not apply to a resident who is participating in a medical assistance waiver program administered by the department. (x) The department shall provide dental services annually to a resident of a nursing facility who is a recipient of medical assistance under this chapter. The dental services must include: (1) a dental examination by a licensed dentist; (2) a prophylaxis by a licensed dentist or licensed dental hygienist, if practical considering the health of the resident; and (3) diagnostic dental x-rays, if possible. (y) The department shall provide medical assistance to a person in need of treatment for breast or cervical cancer who is eligible for that assistance under the Breast and Cervical Cancer Prevention and Treatment Act of 2000 (Pub. L. No. 106-354) for a continuous period during which the person requires that treatment. The department shall simplify the provider enrollment process for a provider of that medical assistance and shall adopt rules to provide for certification of presumptive eligibility of a person for that assistance. In determining a person's eligibility for medical assistance under this subsection, the department, to the extent allowed by federal law, may not require a personal interview. (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. (aa) The department shall incorporate physician-oriented instruction on the appropriate procedures for authorizing ambulance service into current medical education courses.Text of subsec. (bb) as added by Acts 2005, 79th Leg., ch. 349, § 22 (bb) The department may not provide an erectile dysfunction medication under the Medicaid vendor drug program to a person required to register as a sex offender under Chapter 62, Code of Criminal Procedure, to the maximum extent federal law allows the department to deny that medication.Text of subsec. (bb) as added by Acts 2005, 79th Leg., ch. 1314, § 1 (bb) In this subsection, "deaf" and "hard of hearing" have the meanings assigned by Section 81.001. Subject to the availability of funds, the department shall provide interpreter services as requested during the receipt of medical assistance under this chapter to: (1) a person receiving that assistance who is deaf or hard of hearing; or (2) a parent or guardian of a person receiving that assistance if the parent or guardian is deaf or hard of hearing. Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1027, § 11, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1085, § 3, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1107, § 1, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1219, § 1, eff. Sept. 1, 1989; Acts 1990, 71st Leg., 6th C.S., ch. 12, § 2(11) to (13), eff. Sept. 6, 1990; Acts 1991, 72nd Leg., ch. 690, § 1, eff. Aug. 26, 1991; Acts 1995, 74th Leg., ch. 6, § 3, eff. March 23, 1995; Acts 1997, 75th Leg., ch. 1153, § 2.01(a), 2.02(a), eff. June 20, 1997; Acts 1999, 76th Leg., ch. 766, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1333, § 1, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1347, § 3, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 1505, § 1.06, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 220, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 348, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 974, § 1, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, § 21.001(81), eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, § 2.96, 2.97(a), 2.207(a), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 215, § 1, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1251, § 6, eff. June 20, 2003; Acts 2003, 78th Leg., ch. 1275, § 2(97), eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, § 23.001(57), eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 349, § 22, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 1314, § 1, eff. Sept. 1, 2005. § 32.0241. REVIEW OF WAIVER REQUEST. The department shall, at least biennially, review the feasibility of requesting a waiver for the elderly under Section 1915(c), federal Social Security Act (42 U.S.C. Section 1396n), if the reimbursement rates for nursing homes under the medical assistance program have increased since the preceding review. Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989. § 32.0242. VERIFICATION OF CERTAIN INFORMATION. To the extent possible, the department shall verify an applicant's residential address at the time the application for medical assistance is filed. Added by Acts 1999, 76th Leg., ch. 1289, § 1, eff. Sept. 1, 1999. § 32.0243. PERIODIC REVIEW OF ELIGIBILITY FOR CERTAIN RECIPIENTS. (a) The department, in cooperation with the United States Social Security Administration, shall periodically review the eligibility of a recipient of medical assistance who is eligible on the basis of the recipient's eligibility for Supplemental Security Income (SSI) benefits under 42 U.S.C. Section 1381 et seq., as amended. (b) In reviewing the eligibility of a recipient as required by Subsection (a), the department shall ensure that only recipients who reside in this state and who continue to be eligible for Supplemental Security Income (SSI) benefits under 42 U.S.C. Section 1381 et seq., as amended, remain eligible for medical assistance. Added by Acts 1999, 76th Leg., ch. 1289, § 1, eff. Sept. 1, 1999. § 32.0244. NURSING HOME BEDS IN CERTAIN COUNTIES. (a) At the request of the commissioners court of a county in which not more than two nursing facilities are certified to participate in the state Medicaid program, and subject to Subsection (d), the department may contract for additional nursing home beds under the state Medicaid program in the county without regard to the occupancy rate of available Medicaid beds. (b) A commissioners court that intends to make a request under Subsection (a) shall publish notice of its intent in the Texas Register and in a newspaper of general circulation in the county. The notice must request: (1) comments on whether the request should be made; and (2) proposals from persons interested in providing additional Medicaid beds in the county, including persons providing Medicaid beds in a nursing facility with a high occupancy rate. (c) A commissioners court shall determine whether to proceed with a request after considering all comments and proposals received in response to the notices provided under Subsection (b). If the commissioners court proceeds with the request, the court may recommend that the department contract with a specific nursing facility that submitted a proposal. In determining whether to proceed with the request and whether to recommend a specific nursing facility, the commissioners court shall consider: (1) the demographic and economic needs of the county; (2) the quality of existing nursing facility services under the state Medicaid program in the county; (3) the quality of the proposals submitted; and (4) the degree of community support for additional nursing facility services. (d) The department may not contract under this section for more than 120 additional nursing home beds per county per year and may not exceed 500 additional nursing home beds statewide in a calendar year. Added by Acts 1997, 75th Leg., ch. 555, § 1, eff. Sept. 1, 1997. Renumbered from § 32.0246 by Acts 1999, 76th Leg., ch. 62, § 19.01(73), eff. Sept. 1, 1999. § 32.0245. NURSING HOME BEDS FOR CERTAIN FACILITIES TREATING ALZHEIMER'S DISEASE. The department shall waive for a nursing facility a restriction imposed by state law on the authority to contract under the state Medicaid program for nursing home beds based on the percentage of beds that are occupied in a geographical area if the facility: (1) is affiliated with a medical school operated by the state; (2) is participating in a research program for the care and treatment of persons with Alzheimer's disease; and (3) is designed to separate and treat Alzheimer's disease by stage or functional level. Added by Acts 1995, 74th Leg., ch. 841, § 1, eff. Aug. 28, 1995. § 32.0246. PILOT PROGRAM FOR TREATMENT OF ALZHEIMER'S PATIENTS. (a) The Texas Department of Human Services, in cooperation with all appropriate state and federal agencies and with the advisory committee established in Subsection (b), shall develop and implement a pilot program for the treatment of individuals diagnosed with Alzheimer's disease. The pilot program shall: (1) be operated in one rural county and one urban county contiguous to the rural county; (2) provide a continuum of care and comprehensive case management, address gaps in services, and address the special needs of Alzheimer's patients; and (3) develop and implement counseling, education, and support services for the caregivers and family members of Alzheimer's patients. (b) The Texas Department of Human Services shall appoint an advisory committee to assist the department in developing and implementing the pilot program. The advisory committee shall be composed of: (1) four representatives from groups that advocate for Alzheimer's patients; (2) one representative from an institution of higher education; (3) one clinician; (4) one representative from the Texas Department on Aging; (5) one representative from the Texas Department of Human Services; and (6) one representative from the Texas Department of Mental Health and Mental Retardation. (c) The pilot program may not make eligible for medical assistance any individual not otherwise eligible for medical assistance. (d) The Texas Department of Human Services may seek and accept a gift, grant, or donation from any person for purposes of developing and implementing the pilot program provided that the person does not have a contested case pending before any agency participating in the pilot program. (e) Not later than January 15, 1999, the Texas Department of Human Services shall submit to the legislature a report concerning the effectiveness of the pilot program. Added by Acts 1997, 75th Leg., ch. 415, § 1, eff. Sept. 1, 1997. § 32.0247. MEDICAL ASSISTANCE FOR CERTAIN PERSONS MAKING TRANSITION FROM FOSTER CARE TO INDEPENDENT LIVING. (a) In this section, "independent foster care adolescent" has the meaning assigned by 42 U.S.C. Section 1396d(w)(1), as amended. (b) The department shall provide medical assistance, in accordance with department rules, to an independent foster care adolescent who: (1) is not otherwise eligible for medical assistance; and (2) is not covered by a health benefits plan offering adequate benefits, as determined by the Health and Human Services Commission. (c) The department shall by rule establish a specific set of income, assets, or resources allowable for recipients under this section. The income level shall not be less than 200 percent or more than 400 percent of the federal poverty level. Allowable asset or resource levels shall not be less than: (1) the levels allowed for individuals who are in foster care; and (2) the levels allowed for a person under 19 years of age who is eligible for the medical assistance program. (d) In setting allowable income, asset, or resource levels, the department shall exclude: (1) any financial benefit used for the purpose of educational or vocational training, such as scholarships, student loans, or grants; (2) any financial benefit used for the purpose of housing; and (3) any grants or subsidies obtained as a result of the Foster Care Independence Act of 1999 (Pub. L. No. 106-169). (e) The Department of Protective and Regulatory Services shall certify the income, assets, or resources of each individual on the date the individual exits substitute care. An individual qualifying for medical assistance as established by this section shall remain eligible for 12 calendar months after certification and after each recertification. (f) The recertification process for individuals who are eligible for medical assistance under this section shall include the option of recertifying by mail or phone. Added by Acts 2001, 77th Leg., ch. 1218, § 1, eff. Sept. 1, 2001. § 32.0248. DEMONSTRATION PROJECT FOR WOMEN'S HEALTH CARE SERVICES.Text of section effective until September 1, 2011 (a) The department shall establish a five-year demonstration project through the medical assistance program to expand access to preventive health and family planning services for women. A woman eligible under Subsection (b) to participate in the demonstration project may receive appropriate preventive health and family planning services, including: (1) medical history recording and evaluation; (2) physical examinations; (3) health screenings, including screening for: (A) diabetes; (B) cervical cancer; (C) breast cancer; (D) sexually transmitted diseases; (E) hypertension; (F) cholesterol; and (G) tuberculosis; (4) counseling and education on contraceptive methods emphasizing the health benefits of abstinence from sexual activity to recipients who are not married, except for counseling and education regarding emergency contraception; (5) provision of contraceptives, except for the provision of emergency contraception; (6) risk assessment; and (7) referral of medical problems to appropriate providers that are entities or organizations that do not perform or promote elective abortions or contract or affiliate with entities that perform or promote elective abortions. (b) A woman is eligible to participate in the demonstration project if the woman is at least 18 years of age and: (1) has a net family income that is at or below 185 percent of the federal poverty level; (2) participates in or receives benefits under any of the following: (A) the medical assistance program; (B) the financial assistance program under Chapter 31; (C) the nutritional assistance program under Chapter 33; (D) the Supplemental Food Program for Women, Infants and Children; or (E) another program administered by the state that: (i) requires documentation of income; and (ii) restricts eligibility to persons with income equal to or less than the income eligibility guidelines applicable to the medical assistance program; (3) is presumed eligible for one of the programs listed in Subdivision (2) pending completion of that program's eligibility process; or (4) is a member of a family that contains at least one person who participates in or receives benefits under one of the programs listed in Subdivision (2). (c) The department shall ensure that the standards of care provided to a woman participating in the demonstration project are consistent with the requirements of law and current best practices for provision of public health services. (d) The department shall develop procedures for determining and certifying eligibility for services under the demonstration project at the point of service delivery using integrated procedures that minimize duplication of effort by providers, the department, and other state agencies. The department may not use a procedure that would require a cost in excess of 10 percent of the total costs of actual preventive health and family planning services provided under the demonstration project. The eligibility procedure may provide for expedited determination and certification using a simplified form requiring only family income and family size. (e) The department shall compile a list of potential funding sources a woman participating in the demonstration project may be able to use to help pay for treatment for health problems: (1) identified using services provided under the demonstration project; and (2) for which the woman is not eligible to receive treatment under the medical assistance program or the demonstration project. (f) Providers of services under the demonstration project shall comply with requests made by the department for information necessary for the department to: (1) make efficient use of money spent for the operation and administration of the demonstration project; (2) report and provide information required by federal law; and (3) compile the report required by Subsection (g). (g) Not later than December 1 of each even-numbered year, the department shall submit a report to the legislature regarding the department's progress in establishing and operating the demonstration project. (h) The department shall ensure the money spent under the demonstration project, regardless of the funding source, is not used to perform or promote elective abortions. The department, for the purpose of the demonstration project, may not contract with entities that perform or promote elective abortions or are affiliates of entities that perform or promote elective abortions. (i) This section expires September 1, 2011. Added by Acts 2005, 79th Leg., ch. 816, § 1, eff. Sept. 1, 2005. § 32.025. APPLICATION FOR MEDICAL ASSISTANCE. (a) A recipient of benefits under Chapter 31 of this code or supplemental security income from the federal government is automatically eligible for medical assistance, and an application for benefits under these programs constitutes an application for medical assistance. (b) The department shall prescribe application forms for persons who are not recipients of benefits under Chapter 31 of this code or supplemental security income from the federal government and shall adopt rules for processing the applications. (c) The department shall inform applicants for nursing home care of any community services which might be available under the community care for the aged and disabled program. (d) The department shall adopt an application form and procedures for a request for medical assistance provided to a child under 19 years of age. To the extent allowed by federal law and except as otherwise provided by this section, the application form and procedures must be the same as the form and procedures adopted under Section 62.103, Health and Safety Code. The department shall coordinate the form and procedures adopted under this subsection with the form and procedures adopted under Section 62.103, Health and Safety Code, to ensure that there is a single consolidated application for a child under 19 years of age to seek medical assistance or to request coverage under the state child health plan under Chapter 62, Health and Safety Code. (e) The department shall permit an application requesting medical assistance for a child under 19 years of age to be conducted by mail instead of through a personal appearance at a department office, unless the department determines that the information needed to verify eligibility cannot be obtained in that manner. The department by rule may develop procedures requiring an application for a child described by this subsection to be conducted through a personal interview with a department representative only if the department determines that information needed to verify eligibility cannot be obtained in any other manner. (f) The commissioner by rule may develop procedures by which: (1) any office of a health and human services agency may accept an application requesting medical assistance for a child under 19 years of age; and (2) the department may contract with hospital districts, hospitals, including state-owned teaching hospitals, federally qualified health centers, and county health departments to accept applications requesting medical assistance for a child under 19 years of age. Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1085, § 5, eff. Sept. 1, 1989; Acts 2001, 77th Leg., ch. 584, § 2; Acts 2003, 78th Leg., ch. 376, § 2, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1251, § 7, eff. June 20, 2003. § 32.0251. ELIGIBILITY NOTIFICATION AND REVIEW FOR CERTAIN CHILDREN. (a) The department shall establish and implement procedures under which the department automatically reviews a child's eligibility for medical assistance if: (1) the child originally establishes eligibility for medical assistance on the basis of receipt of financial assistance under Chapter 31, as provided by Section 32.025(a); and (2) that receipt of financial assistance under Chapter 31 ceases. (b) If the review required by this section indicates that the child may be eligible for medical assistance on a basis other than receipt of financial assistance under Chapter 31, the department may provide for provisional eligibility for medical assistance for the child pending a recertification review. The provisional eligibility period authorized by this subsection may not exceed one month. (c) In addition to the review required by this section, the department shall also promote continued medical assistance for a child described by Subsection (a) through: (1) revising client education and notification policies relating to a child's eligibility for medical assistance; and (2) providing specific notification of a child's potential eligibility for medical assistance to the child's parent or other caretaker at the time the parent or caretaker is notified of: (A) a scheduled eligibility recertification review; or (B) the termination of financial assistance. Added by Acts 1999, 76th Leg., ch. 704, § 1, eff. June 18, 1999. § 32.0255. TRANSITIONAL MEDICAL ASSISTANCE. (a) The state shall provide transitional medical assistance, in accordance with state rules and federal law, to a person who was receiving financial assistance under Chapter 31 but is no longer eligible to receive the assistance because: (1) the person's household income has increased; or (2) the person has exhausted the person's benefits under Section 31.0065. (b) Except as provided by Section 31.012(c), the state may provide the medical assistance only until the earlier of: (1) the end of the applicable period prescribed by Section 31.0065 for the provision of transitional benefits; or (2) the first anniversary of the date on which the person becomes ineligible for financial assistance because of increased household income. Added by Acts 1995, 74th Leg., ch. 655, § 3.03, eff. Sept. 1, 1995. § 32.026. CERTIFICATION OF ELIGIBILITY AND NEED FOR MEDICAL ASSISTANCE. (a) The department shall promulgate rules for determining and certifying a person's eligibility and need for medical assistance. (b) The department shall promulgate rules to provide for determination and certification of presumptive eligibility for any pregnant woman who applies for Medicaid and who meets the basic eligibility requirements under Title XIX of the federal Social Security Act. (c) Medical assistance payments may not be made on a person's behalf until the person's eligibility and need for medical assistance have been certified in accordance with the department's rules. (d) In adopting rules under this section, the department shall ensure, to the extent allowed by federal law, that documentation and verification procedures used in determining and certifying the eligibility and need for medical assistance of a child under 19 years of age, including the documentation and verification procedures used to evaluate the assets and resources of the child, the child's parents, or the child's other caretaker for that purpose, are the same as the documentation and verification procedures used to determine and certify a child's eligibility for coverage under Chapter 62, Health and Safety Code, except that the documentation and verification procedures adopted in accordance with this subsection may not be more stringent than the documentation and verification procedures existing on January 1, 2001, for determination and certification of a child's eligibility for coverage under Chapter 62, Health and Safety Code. (e) The department shall permit a recertification review of the eligibility and need for medical assistance of a child under 19 years of age to be conducted by telephone or mail instead of through a personal appearance at a department office, unless the department determines that the information needed to verify eligibility cannot be obtained in that manner. The department by rule may develop procedures to determine whether there is a need for a recertification review of a child described by this subsection to be conducted through a personal interview with a department representative. Procedures developed under this subsection shall be based on objective, risk-based factors and conditions and shall focus on a targeted group of recertification reviews for which there is a high probability that eligibility will not be recertified. (f) In adopting rules under this section, the department shall ensure, to the extent allowed by federal law, that forms and procedures used in conducting a recertification review of the eligibility and need for medical assistance of a child under 19 years of age, including documentation and verification procedures, are the same as the forms and procedures used to determine and certify a child's renewal of coverage under Chapter 62, Health and Safety Code. (g) Notwithstanding any other provision of this code, the department may use information obtained from a third party to verify the assets and resources of a person for purposes of determining the person's eligibility and need for medical assistance. Third-party information includes information obtained from: (1) a consumer reporting agency, as defined by Section 20.01, Business & Commerce Code; (2) an appraisal district; or (3) the Texas Department of Transportation's vehicle registration record database. Acts 1979, 66th Leg., p. 2350, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1215, § 1, eff. Sept. 1, 1989; Acts 2001, 77th Leg., ch. 584, § 3; Acts 2003, 78th Leg., ch. 198, § 2.99(a), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 376, § 3, eff. June 18, 2003; Acts 2003, 78th Leg., ch. 1251, § 8, eff. June 20, 2003. § 32.0261. CONTINUOUS ELIGIBILITY. The department shall adopt rules in accordance with 42 U.S.C. Section 1396a(e)(12), as amended, to provide for a period of continuous eligibility for a child under 19 years of age who is determined to be eligible for medical assistance under this chapter. The rules shall provide that the child remains eligible for medical assistance, without additional review by the department and regardless of changes in the child's resources or income, until the earlier of: (1) the end of the six-month period following the date on which the child's eligibility was determined; or (2) the child's 19th birthday. Added by Acts 2001, 77th Leg., ch. 584, § 4, eff. Sept. 1, 2002. Amended by Acts 2005, 79th Leg., ch. 349, § 23, eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 899, § 3.02, eff. Aug. 29, 2005. § 32.0262. ELIGIBILITY TRANSITION. (a) The department shall develop procedures to ensure that all necessary information regarding a child who will be denied continued medical assistance under this chapter because of an increase in income, assets, or resources but who is eligible for enrollment in the child health plan under Chapter 62, Health and Safety Code, is promptly transmitted to the child health plan in accordance with the standards established under Section 62.104(d), Health and Safety Code. (b) The department shall develop procedures to ensure that the parent or caretaker of a child who will be denied continued medical assistance under this chapter because of a failure to keep an appointment, including an appointment for recertification of eligibility, a failure to provide information, or for another procedural reason, is promptly contacted and informed of: (1) the need to recertify eligibility for continued medical assistance under this chapter; and (2) the availability of medical coverage under the child health plan under Chapter 62, Health and Safety Code. (c) The department shall develop materials under this section in consultation with the Health and Human Services Commission and the appropriate agencies administering all or part of the child health plan under Chapter 62, Health and Safety Code. (d) The department by rule shall adopt procedures to assist a family whose child loses eligibility for medical assistance under this chapter in making a transition to the child health plan under Chapter 62, Health and Safety Code, with no interruption in coverage. Added by Acts 2001, 77th Leg., ch. 584, § 4, eff. Jan. 1, 2002. § 32.0263. HEALTH CARE ORIENTATION. (a) The department shall require that the parent or guardian of a child under 19 years of age who originally establishes eligibility for medical assistance must: (1) attend an in-person counseling session with a department representative not later than the 31st day after the date the child originally establishes eligibility; or (2) accompany the child to an appointment with a health care provider for a comprehensive health care orientation not later than the 61st day after the date the child originally establishes eligibility. (b) The commissioner by rule shall develop procedures to verify that: (1) the parent or guardian of the child who originally establishes eligibility complies with the requirement of Subsection (a)(2), if applicable; and (2) the child is provided a comprehensive health care orientation at the appointment with the health care provider. Added by Acts 2001, 77th Leg., ch. 584, § 4, eff. Jan. 1, 2002. § 32.027. SELECTION OF PROVIDER OF MEDICAL ASSISTANCE.[Without reference to the amendment of subsec. (b) by Acts 2003, 78th Leg., ch. 1251, § 9, Acts 2003, 78th Leg., ch. 198, § 2.156(a)(2) repealed subsec. (b) effective September 1, 2003.] (a) Except as provided by Subsections (f), (g), and (h), a recipient of medical assistance authorized in this chapter may select any provider authorized by the department to provide medical assistance. (b) Subject to appropriated state funds, the department shall assure that a recipient of medical assistance under this chapter may select a licensed podiatrist to perform any foot health care service or procedure covered under the medical assistance program if the podiatrist is authorized by law to perform the service or procedure. This subsection shall be liberally construed. (c) Repealed by Acts 2003, 78th Leg., ch. 1167, § 4. (d) The department shall permit a recipient of medical assistance under this chapter to receive services relating to physical therapy from any person authorized to practice physical therapy under Chapter 453, Occupations Code. (e) Repealed by Acts 2005, 79th Leg., ch. 349, § 7(b). (f) The executive commissioner of the Health and Human Services Commission by rule may develop a system of selective contracting with health care providers for the provision of nonemergency inpatient hospital services to a recipient of medical assistance under this chapter. In implementing this subsection, the executive commissioner shall: (1) seek input from consumer representatives and from representatives of hospitals licensed under Chapter 241, Health and Safety Code, and from organizations representing those hospitals; and (2) ensure that providers selected under the system meet the needs of a recipient of medical assistance under this chapter. (g) The process to select a hospital must afford each disproportionate share hospital an opportunity to negotiate for a contract. The process will take into account the special circumstances of disproportionate share hospitals when evaluating proposals. (h) A proposal or bid submitted by a hospital and any work papers, cost reports, or other financial data used to prepare the proposal or bid shall be confidential and not subject to required disclosure by the department or the hospital under any other statute until the executed contracts have been awarded. (i) In its establishment of provider criteria for hospitals, home health providers, or hospice providers, the department shall accept licensure by the Texas Department of Health or certification by the Medicare program, Title XVIII of the Social Security Act (42 U.S.C. Section 1395 et seq.).Text of subsection (j) as added by Acts 2001, 77th Leg., ch. 812, § 4 (j) The department shall assure that a recipient of medical assistance under this chapter may select a nurse first assistant, as defined by Section 301.1525, Occupations Code, to perform any health care service or procedure covered under the medical assistance program if: (1) the selected nurse first assistant is authorized by law to perform the service or procedure; and (2) the physician requests that the service or procedure be performed by the nurse first assistant.Text of subsection (j) as added by Acts 2001, 77th Leg., ch. 1014, § 6 (j) The department shall assure that a recipient of medical assistance under this chapter may select a surgical assistant licensed under Chapter 206, Occupations Code, to perform any health care service or procedure covered under the medical assistance program if: (1) the selected surgical assistant is authorized by law to perform the service or procedure; and (2) the physician requests that the service or procedure be performed by the surgical assistant. (l) Subject to appropriations, the department shall assure that a recipient of medical assistance under this chapter may select a licensed psychologist, a licensed marriage and family therapist, as defined by Section 502.002, Occupations Code, a licensed professional counselor, as defined by Section 503.002, Occupations Code, or a licensed master social worker, as defined by Section 505.002, Occupations Code, to perform any health care service or procedure covered under the medical assistance program if the selected person is authorized by law to perform the service or procedure. This subsection shall be liberally construed. Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1085, § 4, eff. Sept. 1, 1989; Acts 1989, 71st Leg., ch. 1173, § 1, eff. Aug. 28, 1989; Acts 1990, 71st Leg., 6th C.S., ch. 12, § 2(14), eff. Sept. 6, 1990; Acts 1993, 73rd Leg., ch. 390, § 1, 2, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 965, § 57, eff. June 16, 1995; Acts 1999, 76th Leg., ch. 930, § 1, eff. Jan. 1, 2000; Acts 2001, 77th Leg., ch. 812, § 4, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1014, § 6, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1420, § 14.813, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 198, § 2.156(a)(2), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1167, § 4, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1251, § 9, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 349, § 7, eff. Sept. 1, 2005. § 32.028. FEES, CHARGES, AND RATES. (a) The department shall adopt reasonable rules and standards governing the determination of fees, charges, and rates for medical assistance payments. (b) The fee, charge, or rate for a professional service is the usual and customary fee, charge, or rate that prevails in the community. (c) The fee, charge, or rate for other medical assistance is the usual and customary fee, charge, or rate that prevails in the community unless the payment is limited by state or federal law. (d) The department in its adoption of reasonable rules and standards governing the determination of rates paid for inpatient hospital services on a prospective payment basis shall: (1) assure that the payment rates are reasonable and adequate to meet the costs incurred by the hospital in rendering services to Medicaid recipients; (2) assure that the prospective payment methodology for hospital services sets the hospital-specific standardized amount at a minimum level of $1,600; and (3) assure that the adjustment in payment rates for hospital services furnished by disproportionate share hospitals takes into account the essential role of rural hospitals in providing access to hospital services to medically indigent persons in rural areas of the state. (e) The department in its adoption of reasonable rules and standards governing the determination of rates paid for services provided by a federally qualified health center, as defined by 42 U.S.C. Section 1396d(l)(2)(B), shall assure that a center is reimbursed for 100 percent of reasonable costs incurred by the center in rendering services to Medicaid recipients. (f) The department in its adoption of reasonable rules and standards governing the determination of rates paid for services provided by a rural health clinic, as defined by 42 U.S.C. Section 1396d(l)(1), shall assure that a clinic is reimbursed for 100 percent of reasonable costs incurred by the clinic in rendering services to Medicaid recipients. (g) Subject to Subsection (i), the Health and Human Services Commission shall ensure that the rules governing the determination of rates paid for nursing home services improve the quality of care by: (1) providing a program offering incentives for increasing direct care staff and direct care wages and benefits, but only to the extent that appropriated funds are available after money is allocated to base rate reimbursements as determined by the Health and Human Services Commission's nursing facility rate setting methodologies; and (2) if appropriated funds are available after money is allocated for payment of incentive-based rates under Subdivision (1), providing incentives that incorporate the use of a quality of care index, a customer satisfaction index, and a resolved complaints index developed by the commission. (h) The Health and Human Services Commission shall ensure that the rules governing the determination of rates paid for nursing home services provide for the rate component derived from reported liability insurance costs to be paid only to those homes that purchase liability insurance acceptable to the commission. (i) The Health and Human Services Commission shall ensure that rules governing the incentives program described by Subsection (g)(1): (1) provide that participation in the program by a nursing home is voluntary; (2) do not impose on a nursing home not participating in the program a minimum spending requirement for direct care staff wages and benefits; (3) do not set a base rate for a nursing home participating in the program that is more than the base rate for a nursing home not participating in the program; and (4) establish a funding process to provide incentives for increasing direct care staff and direct care wages and benefits in accordance with appropriations provided. (j) The Health and Human Services Commission shall adopt rules governing the determination of the amount of reimbursement or credit for restocking drugs under Section 562.1085, Occupations Code, that recognize the costs of processing the drugs, including the cost of: (1) reporting the drug's prescription number and date of original issue; (2) verifying whether the drug's expiration date or the drug's recommended shelf life exceeds 120 days; (3) determining the source of payment; and (4) preparing credit records. (k) The commission shall provide an electronic system for the issuance of credit for returned drugs that complies with the Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191, as amended. To ensure a cost-effective system, only drugs for which the credit exceeds the cost of the restocking fee by at least 100 percent are eligible for credit. (l) The commission shall establish a task force to develop the rules necessary to implement Subsections (j) and (k). The task force must include representatives of nursing facilities and pharmacists. (m) The commission may not fund an incentive program under Subsection (g)(1) using money appropriated for base rate reimbursements for nursing facilities. (n) The commission shall ensure that rules governing the determination of rates paid for nursing home services provide for the reporting of all revenue and costs, without regard to whether a cost is an allowable cost for reimbursement under the medical assistance program, except: (1) as provided by Subsection (h); and (2) a penalty imposed under this chapter or Chapter 242, Health and Safety Code. Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1219, § 2, eff. Sept. 1, 1989; Acts 1999, 76th Leg., ch. 1411, § 1.16, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 974, § 31, eff. Sept. 1, 2001; Acts 2001, 77th Leg., ch. 1284, § 10.01, eff. June 15, 2001; Acts 2003, 78th Leg., ch. 198, § 2.102(a), eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 321, § 3, eff. June 18, 2003; Acts 2005, 79th Leg., ch. 667, § 2, eff. Sept. 1, 2005. § 32.0281. RULES AND NOTICE RELATING TO PAYMENT RATES. (a) The department shall by rule describe the process used to determine payment rates for medical assistance and shall notify providers, consumers, the Legislative Budget Board, and the governor's office for budget and planning of that process. (b) The department shall adopt rules relating to payment rates that include: (1) a description of the process used to determine payment rates; (2) a description of each cost of living index used in calculating inflation rates and the procedure for determining the level of inflation used in the department's calculations; (3) the criteria for desk audits; (4) the procedure for notifying providers of exclusions and adjustments to reported expenses, if notification is requested; and (5) a method of adjusting rates if new legislation, regulations, or economic factors affect costs. (c) The department shall include in the Title XIX State Medicaid Plan submitted to the federal government for approval the procedures for making available to the public the data and methodology used in establishing payment rates. (d) The procedures for adopting rules under this section shall be governed by Chapter 2001, Government Code. (e) An interested party may appeal an action taken by the department under this section, and an appeal of such action shall be governed by the procedures for a contested case hearing under Chapter 2001, Government Code. The filing of an appeal under this section shall not stay the implementation of payment rates adopted by the department in accordance with its rules. Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995. § 32.0282. PUBLIC HEARING ON RATES. (a) The department shall hold a public hearing to allow interested persons to present comments relating to proposed payment rates for medical assistance. (b) The department shall provide notice of each hearing to the public. Added by Acts 1989, 71st Leg., ch. 1085, § 2, eff. Sept. 1, 1989. § 32.029. METHODS OF PAYMENT. (a) The department may prescribe a method of payment for medical assistance claims by establishing a direct vendor payment program that is administered by the department, or by an insurance plan, a hospital or medical service plan, or any other health service plan authorized to do business in the state, or by a combination of those plans. (b) The department may use any fiscal intermediary, method of payment, or combination of methods it finds most satisfactory and economical. The department may make whatever changes it finds necessary from time to time to administer the program in an economical and equitable manner consistent with simplicity of administration and the best interest of the recipients of medical assistance. (c) If the department elects to make direct vendor payments, the payments shall be made by vouchers and warrants drawn by the comptroller on the proper account. The department shall furnish the comptroller with a list of those vendors entitled to payments and the amounts to which each is entitled. When the warrants are drawn, they must be delivered to the department, which shall supervise the delivery to vendors. (d) If at any time state funds are not available to fully pay all claims for medical assistance, the board shall prorate the claims. (e) The department or its designee must notify providers of health care services in clear and concise language of the status of their claims on any claim not paid or denied within 30 days of receipt by the payor. Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 264, § 12, eff. Aug. 26, 1985; Acts 1993, 73rd Leg., ch. 390, § 3, eff. Sept. 1, 1993; Acts 1995, 74th Leg., ch. 6, § 4, eff. March 23, 1995. § 32.0291. PREPAYMENT REVIEWS AND POSTPAYMENT HOLDS. (a) Notwithstanding any other law, the department may: (1) perform a prepayment review of a claim for reimbursement under the medical assistance program to determine whether the claim involves fraud or abuse; and (2) as necessary to perform that review, withhold payment of the claim for not more than five working days without notice to the person submitting the claim. (b) Notwithstanding any other law, the department may impose a postpayment hold on payment of future claims submitted by a provider if the department has reliable evidence that the provider has committed fraud or wilful misrepresentation regarding a claim for reimbursement under the medical assistance program. The department must notify the provider of the postpayment hold not later than the fifth working day after the date the hold is imposed. (c) On timely written request by a provider subject to a postpayment hold under Subsection (b), the department shall file a request with the State Office of Administrative Hearings for an expedited administrative hearing regarding the hold. The provider must request an expedited hearing under this subsection not later than the 10th day after the date the provider receives notice from the department under Subsection (b). The department shall discontinue the hold unless the department makes a prima facie showing at the hearing that the evidence relied on by the department in imposing the hold is relevant, credible, and material to the issue of fraud or wilful misrepresentation. (d) The department shall adopt rules that allow a provider subject to a postpayment hold under Subsection (b) to seek an informal resolution of the issues identified by the department in the notice provided under that subsection. A provider must seek an informal resolution under this subsection not later than the deadline prescribed by Subsection (c). A provider's decision to seek an informal resolution under this subsection does not extend the time by which the provider must request an expedited administrative hearing under Subsection (c). However, a hearing initiated under Subsection (c) shall be stayed at the department's request until the informal resolution process is completed. Added by Acts 2003, 78th Leg., ch. 198, § 2.103, eff. Sept. 1, 2003. § 32.030. MEDICAL ASSISTANCE FUND. (a) The medical assistance fund is a special fund in the treasury and constitutes a separate account. The fund may be expended only for the purpose of carrying out the provisions of this chapter. (b) When necessary the department may request the transfer of money appropriated for financial assistance to the medical assistance fund. The transfer shall be requested and made in the manner authorized in the General Appropriations Act and in accordance with the department's rules. (c) The disproportionate share fund is a separate account that provides reimbursement each year to hospitals that render a high volume of services to medically indigent persons in the state. Payments from the fund shall be not less than $5 million annually in state funds in excess of the amounts contained in the general appropriations bill as introduced for the 1990-1991 biennium. Acts 1979, 66th Leg., p. 2351, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1985, 69th Leg., ch. 264, § 13, eff. Aug. 26, 1985; Acts 1989, 71st Leg., ch. 1219, § 3, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 6, § 5, eff. March 23, 1995. § 32.031. RECEIPT AND EXPENDITURE OF FUNDS. (a) The department may accept federal funds for the support of the medical assistance program and may expend the funds in the manner prescribed by this chapter or other laws. The expenditures must be made in accordance with appropriate agreements between the state and the federal government. (b) The department may administer and expend state funds appropriated for the program in accordance with its rules and the provisions of this chapter. (c) The amount of state funds spent for medical assistance on behalf of a qualified individual may not exceed the amount that is matchable with federal funds, and the total amount of state funds spent for all medical assistance on behalf of all qualified individuals may not exceed the amount that is matchable with federal funds. (d) The board is empowered and authorized to pursue the use of local funds as part of the state share under the Medicaid program as provided by federal law and regulation. (e) Public hospitals, including hospitals owned, operated, or leased by a governmental entity, including a municipality, county, hospital district, or this state, and specifically including a state teaching hospital, may transfer funds to the department for use as state share under the Medicaid disproportionate share program. Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1989, 71st Leg., ch. 1215, § 4, eff. Sept. 1, 1989; Acts 1995, 74th Leg., ch. 6, § 6, eff. March 23, 1995. § 32.0311. DRUG REIMBURSEMENT UNDER CERTAIN PROGRAMS. The department shall require a recipient of medical assistance to exhaust drug benefits available under the medical assistance program before reimbursing the recipient, pharmacist, or other health care provider for drugs purchased by or on behalf of the recipient under the Kidney Health Care Program or the Chronically Ill and Disabled Children's Services Program. Added by Acts 1999, 76th Leg., ch. 669, § 1, eff. June 18, 1999. § 32.0315. FUNDS FOR GRADUATE MEDICAL EDUCATION. (a) Subject to appropriated state funds, the department shall establish procedures and formulas for the allocation of federal medical assistance funds that are directed to be used to support graduate medical education in connection with the medical assistance program. (b) The department shall allocate the funds in the manner the department determines most effectively and equitably achieves the purposes for which those federal funds are received, consistent with the needs of this state for graduate medical education and the training of resident physicians in accredited residency programs in appropriate fields and specialties, taking into account other money available to support graduate medical education. In determining the needs of this state for graduate medical education, the department shall give primary emphasis to graduate medical education in primary care specialties and shall also recognize the growth in residency training slots since 1997 in the Lower Rio Grande Valley and other health care shortage areas of this state. (c) The department shall consult with the Texas Higher Education Coordinating Board before adopting or revising a formula under this section. At the request of the department, the coordinating board shall provide the department with any information the board possesses to assist the department in administering this section. (d) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.100(b). (d-1) Expired. (e) to (h) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.100(b). Added by Acts 1997, 75th Leg., ch. 252, § 1, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 198, § 2.100(a), (b), eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 733, § 1, eff. Sept. 1, 2005. § 32.032. PREVENTION AND DETECTION OF FRAUD AND ABUSE. The department shall adopt reasonable rules for minimizing the opportunity for fraud and abuse, for establishing and maintaining methods for detecting and identifying situations in which a question of fraud or abuse in the program may exist, and for referring cases where fraud or abuse appears to exist to the appropriate law enforcement agencies for prosecution. Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 2003, 78th Leg., ch. 198, § 2.104, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, § 2, eff. Sept. 1, 2003. § 32.0321. SURETY BOND. (a) The department by rule may require each provider of medical assistance in a provider type that has demonstrated significant potential for fraud or abuse to file with the department a surety bond in a reasonable amount. The department by rule shall require a provider of medical assistance to file with the department a surety bond in a reasonable amount if the department identifies a pattern of suspected fraud or abuse involving criminal conduct relating to the provider's services under the medical assistance program that indicates the need for protection against potential future acts of fraud or abuse. (b) The bond under Subsection (a) must be payable to the department to compensate the department for damages resulting from or penalties or fines imposed in connection with an act of fraud or abuse committed by the provider under the medical assistance program. (c) Subject to Subsection (d) or (e), the department by rule may require each provider of medical assistance that establishes a resident's trust fund account to post a surety bond to secure the account. The bond must be payable to the department to compensate residents of the bonded provider for trust funds that are lost, stolen, or otherwise unaccounted for if the provider does not repay any deficiency in a resident's trust fund account to the person legally entitled to receive the funds. (d) The department may not require the amount of a surety bond posted for a single facility provider under Subsection (c) to exceed the average of the total average monthly balance of all the provider's resident trust fund accounts for the 12-month period preceding the bond issuance or renewal date. (e) If an employee of a provider of medical assistance is responsible for the loss of funds in a resident's trust fund account, the resident, the resident's family, and the resident's legal representative are not obligated to make any payments to the provider that would have been made out of the trust fund had the loss not occurred. Added by Acts 1997, 75th Leg., ch. 1153, § 2.03, eff. Sept. 1, 1997. Amended by Acts 2003, 78th Leg., ch. 198, § 2.105, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 257, § 3, eff. Sept. 1, 2003. § 32.0322. CRIMINAL HISTORY RECORD INFORMATION. (a) The department may obtain from any law enforcement or criminal justice agency the criminal history record information that relates to a provider under the medical assistance program or a person applying to enroll as a provider under the medical assistance program. (b) The department by rule shall establish criteria for revoking a provider's enrollment or denying a person's application to enroll as a provider under the medical assistance program based on the results of a criminal history check. Added by Acts 1997, 75th Leg., ch. 1153, § 2.04(a), eff. Sept. 1, 1997. § 32.033. SUBROGATION. (a) The filing of an application for or receipt of medical assistance constitutes an assignment of the applicant's or recipient's right of recovery from: (1) personal insurance; (2) other sources; or (3) another person for personal injury caused by the other person's negligence or wrong. (b) A person who applies for or receives medical assistance shall inform the department, at the time of application or at any time during eligibility and receipt of services, of any unsettled tort claim which may affect medical needs and of any private accident or sickness insurance coverage that is or may become available. A recipient shall inform the department of any injury requiring medical attention that is caused by the act or failure to act of some other person. An applicant or a recipient shall inform the department as required by this subsection within 60 days of the date the person learns of his or her insurance coverage, tort claim, or potential cause of action. An applicant or a recipient who knowingly and intentionally fails to disclose the information required by this subsection commits a Class C misdemeanor. (c) A claim for damages for personal injury does not constitute grounds for denying or discontinuing assistance under this chapter. (d) A separate and distinct cause of action in favor of the state is hereby created, and the department may, without written consent, take direct civil action in any court of competent jurisdiction. A suit brought under this section need not be ancillary to or dependent upon any other action. (e) The department's right of recovery is limited to the amount of the cost of medical care services paid by the department. Other subrogation rights granted under this section are limited to the cost of the services provided. (f) The commissioner may waive the department's right of recovery in whole or in part when the commissioner finds that enforcement would tend to defeat the purpose of public assistance. (g) The department may designate an agent to collect funds the department has a right to recover from third parties under this section. The department shall use any funds collected to pay costs of administering the medical assistance program. (h) The department may adopt rules for the enforcement of its right of recovery. Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1979, 66th Leg., p. 2436, ch. 842, art. 2, § 10, eff. Sept. 1, 1979. § 32.034. CONTRACT CANCELLATION; NOTICE AND HEARING. (a) The department has authority to adjudicate claims of contested cases in accordance with Chapter 2001, Government Code. When the department intends to cancel its contract or impose monetary penalties under a contract with a person providing medical assistance, the department shall give reasonable notice and an opportunity for hearing if one is requested. The department shall adopt rules consistent with Chapter 2001, Government Code to implement this section, and hearings under this section are contested cases under that act. (b) The department may not terminate a contract during the pendency of a hearing under this section. The department may withhold payments during the pendency of a hearing, but the department shall pay the withheld payments and resume contract payments if the final determination is favorable to the contractor. The department's authority to withhold payments shall be established by contract. (c) The section does not apply if federal matching funds are not available to pay the facility whose contract is being cancelled. If federal matching funds cannot be used, no state funds may be used to pay the facility. Acts 1979, 66th Leg., p. 2352, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1987, 70th Leg., ch. 1052, § 2.02, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.22, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1159, § 2.03, eff. Sept. 1, 1997. § 32.035. APPEALS. The provisions of Section 31.034 of this code governing the right of appeal of an applicant for or recipient of financial assistance authorized under Chapter 31 of this code also apply to applicants for medical assistance authorized in this chapter. Acts 1979, 66th Leg., p. 2353, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. § 32.036. PROGRAM PAYMENTS NONASSIGNABLE AND EXEMPT FROM LEGAL PROCESS. (a) Neither medical assistance nor payments to providers of medical assistance under this chapter are transferable or assignable at law or in equity. (b) No money paid or payable under the provisions of this chapter is subject to execution, levy, attachment, garnishment, or any other legal process, or the operation of any insolvency law. (c) This section does not apply to the extent that it conflicts with the Social Security Act (42 U.S.C. Section 1396a(a)(32)). Acts 1979, 66th Leg., p. 2353, ch. 842, art. 1, § 1, eff. Sept. 1, 1979. Amended by Acts 1997, 75th Leg., ch. 216, § 1, eff. May 23, 1997. § 32.038. COLLECTION OF INSURANCE PAYMENTS. (a) The department may receive directly from an insurance company any payments to which the department is entitled under Section 1204.153, Insurance Code. (b) The department shall adopt rules to implement this section, including rules establishing procedures relating to: (1) notification to the department that a child receiving benefits under Chapter 31 or Chapter 32 of this code is covered by an insurance policy under which the department is eligible to receive direct payments; (2) claims made by the department to receive payments under Subsection (a) of this section; (3) notification to the department of any change in the status of the child or the parent; and (4) notification to the insurance company that the department is to receive payments under Subsection (a) of this section. (c) Department rules relating to the notice prescribed by Subsection (b)(4) of this section must require the notice to be attached to the claim for insurance benefits when the claim is first submitted to the insurance company. Added by Acts 1987, 70th Leg., ch. 1052, § 2.03, eff. Sept. 1, 1987. Amended by Acts 2005, 79th Leg., ch. 728, § 11.128, eff. Sept. 1, 2005. § 32.0381. ICF-MR PAYMENT RATES. (a) The board shall set the payment rates for ICF-MR facilities at least annually. (b) The board shall adopt by rule the methodology used by the department in setting payment rates for ICF-MR facilities. The methodology shall clearly define the procedures and methods used in projecting the costs of economic and efficient facilities and the procedures and methods used in setting payment rates that reasonably reimburse facilities at each level of care and in each class of providers, including size categories. (c) The board shall ensure that the methodology used in projecting costs and setting payment rates and its implementation is the same for state-operated ICF-MR facilities and for private ICF-MR facilities. Methods used to project costs, including those involving the handling of gifts, grants, and donations, upper limits on facility and administrative costs, occupancy adjustments, and in assessing the cost impact of new or revised requirements, must be the same for state-operated and private facilities. (d) To the extent allowed by federal law, any differences in methodology or its implementation between state-operated facilities and private facilities must be stated explicitly in the rule, must be related to actual differences in the nature of the expenses incurred by the class of providers, including size categories, and must not favor state-operated facilities in setting payment rates. When the proposed rule or amendments to the rule are published for public comment, the commissioner must certify that any differences in methodology between classes of providers, including size categories, are necessitated by cost structure and will not favor state-operated facilities in the setting of payment rates. Added by Acts 1989, 71st Leg., ch. 1141, § 11(a), eff. Sept. 1, 1989. § 32.039. DAMAGES AND PENALTIES. (a) In this section: (1) "Claim" means an application for payment of health care services under Title XIX of the federal Social Security Act that is submitted by a person who is under a contract or provider agreement with the department. (1-a) "Inducement" includes a service, cash in any amount, entertainment, or any item of value. (2) "Managed care organization" means any entity or person that is authorized or otherwise permitted by law to arrange for or provide a managed care plan. (3) "Managed care plan" means a plan under which a person undertakes to provide, arrange for, pay for, or reimburse any part of the cost of any health care service. A part of the plan must consist of arranging for or providing health care services as distinguished from indemnification against the cost of those services on a prepaid basis through insurance or otherwise. The term does not include a plan that indemnifies a person for the cost of health care services through insurance. (4) A person "should know" or "should have known" information to be false if the person acts in deliberate ignorance of the truth or falsity of the information or in reckless disregard of the truth or falsity of the information, and proof of the person's specific intent to defraud is not required. (b) A person commits a violation if the person: (1) presents or causes to be presented to the department a claim that contains a statement or representation the person knows or should know to be false; (1-a) engages in conduct that violates Section 102.001, Occupations Code; (1-b) solicits or receives, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind for referring an individual to a person for the furnishing of, or for arranging the furnishing of, any item or service for which payment may be made, in whole or in part, under the medical assistance program, provided that this subdivision does not prohibit the referral of a patient to another practitioner within a multispecialty group or university medical services research and development plan (practice plan) for medically necessary services; (1-c) solicits or receives, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind for purchasing, leasing, or ordering, or arranging for or recommending the purchasing, leasing, or ordering of, any good, facility, service, or item for which payment may be made, in whole or in part, under the medical assistance program; (1-d) offers or pays, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind to induce a person to refer an individual to another person for the furnishing of, or for arranging the furnishing of, any item or service for which payment may be made, in whole or in part, under the medical assistance program, provided that this subdivision does not prohibit the referral of a patient to another practitioner within a multispecialty group or university medical services research and development plan (practice plan) for medically necessary services; (1-e) offers or pays, directly or indirectly, overtly or covertly any remuneration, including any kickback, bribe, or rebate, in cash or in kind to induce a person to purchase, lease, or order, or arrange for or recommend the purchase, lease, or order of, any good, facility, service, or item for which payment may be made, in whole or in part, under the medical assistance program; (1-f) provides or offers an inducement in a manner or for a purpose not otherwise prohibited by this section or Section 102.001, Occupations Code, to an individual, including a recipient, provider, or employee of a provider, for the purpose of influencing a decision regarding selection of a provider or receipt of a good or service under the medical assistance program or for the purpose of otherwise influencing a decision regarding the use of goods or services provided under the medical assistance program; or (2) is a managed care organization that contracts with the department to provide or arrange to provide health care benefits or services to individuals eligible for medical assistance and: (A) fails to provide to an individual a health care benefit or service that the organization is required to provide under the contract with the department; (B) fails to provide to the department information required to be provided by law, department rule, or contractual provision; (C) engages in a fraudulent activity in connection with the enrollment in the organization's managed care plan of an individual eligible for medical assistance or in connection with marketing the organization's services to an individual eligible for medical assistance; or (D) engages in actions that indicate a pattern of: (i) wrongful denial of payment for a health care benefit or service that the organization is required to provide under the contract with the department; or (ii) wrongful delay of at least 45 days or a longer period specified in the contract with the department, not to exceed 60 days, in making payment for a health care benefit or service that the organization is required to provide under the contract with the department. (c) A person who commits a violation under Subsection (b) is liable to the department for: (1) the amount paid, if any, as a result of the violation and interest on that amount determined at the rate provided by law for legal judgments and accruing from the date on which the payment was made; and (2) payment of an administrative penalty of an amount not to exceed twice the amount paid, if any, as a result of the violation, plus an amount: (A) not less than $5,000 or more than $15,000 for each violation that results in injury to an elderly person, as defined by Section 48.002(1), a disabled person, as defined by Section 48.002(8)(A), or a person younger than 18 years of age; or (B) not more than $10,000 for each violation that does not result in injury to a person described by Paragraph (A). (d) Unless the provider submitted information to the department for use in preparing a voucher that the provider knew or should have known was false or failed to correct information that the provider knew or should have known was false when provided an opportunity to do so, this section does not apply to a claim based on the voucher if the department calculated and printed the amount of the claim on the voucher and then submitted the voucher to the provider for the provider's signature. In addition, the provider's signature on the voucher does not constitute fraud. The department shall adopt rules that establish a grace period during which errors contained in a voucher prepared by the department may be corrected without penalty to the provider. (e) In determining the amount of the penalty to be assessed under Subsection (c)(2), the department shall consider: (1) the seriousness of the violation; (2) whether the person had previously committed a violation; and (3) the amount necessary to deter the person from committing future violations. (f) If after an examination of the facts the department concludes that the person committed a violation, the department may issue a preliminary report stating the facts on which it based its conclusion, recommending that an administrative penalty under this section be imposed and recommending the amount of the proposed penalty. (g) The department shall give written notice of the report to the person charged with committing the violation. The notice must include a brief summary of the facts, a statement of the amount of the recommended penalty, and a statement of the person's right to an informal review of the alleged violation, the amount of the penalty, or both the alleged violation and the amount of the penalty. (h) Not later than the 10th day after the date on which the person charged with committing the violation receives the notice, the person may either give the department written consent to the report, including the recommended penalty, or make a written request for an informal review by the department. (i) If the person charged with committing the violation consents to the penalty recommended by the department or fails to timely request an informal review, the department shall assess the penalty. The department shall give the person written notice of its action. The person shall pay the penalty not later than the 30th day after the date on which the person receives the notice. (j) If the person charged with committing the violation requests an informal review as provided by Subsection (h), the department shall conduct the review. The department shall give the person written notice of the results of the review. (k) Not later than the 10th day after the date on which the person charged with committing the violation receives the notice prescribed by Subsection (j), the person may make to the department a written request for a hearing. The hearing must be conducted in accordance with Chapter 2001, Government Code. (l) If, after informal review, a person who has been ordered to pay a penalty fails to request a formal hearing in a timely manner, the department shall assess the penalty. The department shall give the person written notice of its action. The person shall pay the penalty not later than the 30th day after the date on which the person receives the notice. (m) Within 30 days after the date on which the board's order issued after a hearing under Subsection (k) becomes final as provided by Section 2001.144, Government Code, the person shall: (1) pay the amount of the penalty; (2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or (3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (n) A person who acts under Subsection (m)(3) within the 30-day period may: (1) stay enforcement of the penalty by: (A) paying the amount of the penalty to the court for placement in an escrow account; or (B) giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the department's order is final; or (2) request the court to stay enforcement of the penalty by: (A) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond; and (B) giving a copy of the affidavit to the commissioner by certified mail. (o) If the commissioner receives a copy of an affidavit under Subsection (n)(2), the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true. The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (p) If the person charged does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may forward the matter to the attorney general for enforcement of the penalty and interest as provided by law for legal judgments. An action to enforce a penalty order under this section must be initiated in a court of competent jurisdiction in Travis County or in the county in which the violation was committed. (q) Judicial review of a department order or review under this section assessing a penalty is under the substantial evidence rule. A suit may be initiated by filing a petition with a district court in Travis County, as provided by Subchapter G, Chapter 2001, Government Code. (r) If a penalty is reduced or not assessed, the department shall remit to the person the appropriate amount plus accrued interest if the penalty has been paid or shall execute a release of the bond if a supersedeas bond has been posted. The accrued interest on amounts remitted by the department under this subsection shall be paid at a rate equal to the rate provided by law for legal judgments and shall be paid for the period beginning on the date the penalty is paid to the department under this section and ending on the date the penalty is remitted. (s) A damage, cost, or penalty collected under this section is not an allowable expense in a claim or cost report that is or could be used to determine a rate or payment under the medical assistance program. (t) All funds collected under this section shall be deposited in the State Treasury to the credit of the General Revenue Fund. (u) Except as provided by Subsection (w), a person found liable for a violation under Subsection (c) that resulted in injury to an elderly person, as defined by Section 48.002(a)(1), a disabled person, as defined by Section 48.002(a)(8)(A), or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of 10 years. The department by rule may provide for a period of ineligibility longer than 10 years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final. (v) Except as provided by Subsection (w), a person found liable for a violation under Subsection (c) that did not result in injury to an elderly person, as defined by Section 48.002(a)(1), a disabled person, as defined by Section 48.002(a)(8)(A) , or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of three years. The department by rule may provide for a period of ineligibility longer than three years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final. (w) The department by rule may prescribe criteria under which a person described by Subsection (u) or (v) is not prohibited from providing or arranging to provide health care services under the medical assistance program. The criteria may include consideration of: (1) the person's knowledge of the violation; (2) the likelihood that education provided to the person would be sufficient to prevent future violations; (3) the potential impact on availability of services in the community served by the person; and (4) any other reasonable factor identified by the department. (x) Subsections (b)(1-b) through (1-f) do not prohibit a person from engaging in: (1) generally accepted business practices, as determined by department rule, including: (A) conducting a marketing campaign; (B) providing token items of minimal value that advertise the person's trade name; and (C) providing complimentary refreshments at an informational meeting promoting the person's goods or services; (2) the provision of a value-added service if the person is a managed care organization; or (3) other conduct specifically authorized by law, including conduct authorized by federal safe harbor regulations (42 C.F.R. Section 1001.952). Added by Acts 1987, 70th Leg., ch. 1052, § 2.04, eff. Sept. 1, 1987. Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), (53), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1153, § 3.01(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 12, § 1, 2, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 257, § 4, 5, eff. Sept. 1, 2003. § 32.0391. CRIMINAL OFFENSE. (a) A person commits an offense if the person intentionally or knowingly commits a violation under Section 32.039(b)(1-b), (1-c), (1-d), or (1-e). (b) An offense under this section is a state jail felony. (c) If conduct constituting an offense under this section also constitutes an offense under another provision of law, including a provision in the Penal Code, the person may be prosecuted under either this section or the other provision. (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. Added by Acts 2003, 78th Leg., ch. 257, § 6, eff. Sept. 1, 2003. § 32.040. IDENTIFICATION OF HUSBAND OR ALLEGED FATHER. (a) A woman receiving medical assistance in the form of prenatal care, child delivery care, and obstetrical care related to prenatal care and child delivery care shall identify her husband, or, if unmarried, shall provide the name and last known address of the alleged father of the unborn child. (b) If the woman receiving medical assistance is under 18 years of age and resides with one or both parents, the parents shall cooperate in identifying the husband or the alleged father. Added by Acts 1989, 71st Leg., 1st C.S., ch. 25, § 37, eff. Jan. 1, 1990. § 32.041. MEDICAID MANAGED CARE DEMONSTRATION PROJECT. (a) Beginning September 1, 1991, the department in consultation with the Medicaid analysis and cost control unit of the Legislative Budget Board shall initiate the planning for a Medicaid managed care demonstration project. (b) The department shall request necessary waivers and approvals from the federal Health Care Financing Administration (HCFA) and other appropriate entities that will enable the state to begin implementation of the demonstration program not later than January 1, 1993. (c) On or before January 1, 1995, the department shall evaluate the demonstration programs using specifications developed by the federal Health Care Financing Administration. (d) If the results of the evaluation indicate that the program is cost-effective, the department shall incorporate a request for funding for the continuation or expansion of the managed care approach in its Medicaid program in the department's budget request for the 1996-1997 biennium. Added by Acts 1991, 72nd Leg., 1st C.S., ch. 15, § 5.02, eff. Sept. 1, 1991. Amended by Acts 1995, 74th Leg., ch. 6, § 7, eff. March 23, 1995. § 32.042. INFORMATION REQUIRED FROM HEALTH INSURERS. (a) An insurer shall maintain a file system that contains: (1) the name, address, including claim submission address, group policy number, employer's mailing address, social security number, and date of birth of each enrollee, beneficiary, subscriber, or policyholder covered by the insurer; and (2) the name, address, including claim submission address, and date of birth of each dependent of each enrollee, beneficiary, subscriber, or policyholder covered by the insurer. (b) The state's Medicaid third-party recovery division shall identify state medical assistance recipients who have third-party health coverage or insurance as provided by this subsection. The department may: (1) provide to an insurer Medicaid data tapes that identify medical assistance recipients and request that the insurer identify each enrollee, beneficiary, subscriber, or policyholder of the insurer whose name also appears on the Medicaid data tape; or (2) request that an insurer provide to the department identifying information for each enrollee, beneficiary, subscriber, or policyholder of the insurer. (b-1) An insurer from which the department requests information under Subsection (b) shall provide that information, except that the insurer is only required to provide the department with the information maintained under Subsection (a) by the insurer or made available to the insurer from the plan. A plan administrator is subject to Subsection (b) and shall provide information under that subsection to the extent the information is made available to the plan administrator from the insurer or plan. (c) An insurer may not be required to provide information in response to a request under this section more than once every six months. (d) An insurer shall provide the information required under Subsection (b)(1) only if the department certifies that the identified individuals are applicants for or recipients of services under Medicaid or are legally responsible for an applicant for or recipient of Medicaid services. (e) The department shall enter into an agreement to reimburse an insurer or plan administrator for necessary and reasonable costs incurred in providing information requested under Subsection (b)(1), not to exceed $5,000 for each data match made under that subdivision. If the department makes a data match using information provided under Subsection (b)(2), the department shall reimburse the insurer or plan administrator for reasonable administrative expenses incurred in providing the information. The reimbursement for information under Subsection (b)(2) may not exceed $5,000 for initially producing information with respect to a person, or $200 for each subsequent production of information with respect to the person. The department may enter into an agreement with an insurer or plan administrator that provides procedures for requesting and providing information under this section. An agreement under this subsection may not be inconsistent with any law relating to the confidentiality or privacy of personal information or medical records. The procedures agreed to under this subsection must state the time and manner the procedures take effect. (f) Information required to be furnished to the department under this section is limited to information necessary to determine whether health benefits have been or should have been claimed and paid under a health insurance policy or plan for medical care or services received by an individual for whom Medicaid coverage would otherwise be available. (g) Information regarding an individual certified to an insurer as an applicant for or recipient of medical assistance may only be used to identify the records or information requested and may not violate the confidentiality of the applicant or recipient. The department shall establish guidelines not later than the date on which the procedures agreed to under Subsection (e) take effect. (h) This section applies to a plan administrator in the same manner and to the same extent as an insurer if the plan administrator has the information necessary to comply with the applicable requirement. (i) In this section: (1) "Insurer" means a group health services corporation, a health maintenance organization, a self-funded or self-insured welfare or benefit plan or program to the extent the regulation of the plan or program is not preempted by federal law, and any other entity that provides health coverage in this state through an employer, union, trade association, or other organization or other source. (2) "Plan administrator" means a third-party administrator, prescription drug payer or administrator, pharmacy benefit manager, or dental payer or administrator. Added by Acts 1993, 73rd Leg., ch. 816, § 1.01, eff. Sept. 1, 1993. Amended by Acts 1999, 76th Leg., ch. 88, § 1, eff. Sept. 1, 1999; Acts 2005, 79th Leg., ch. 349, § 2(b), eff. Sept. 1, 2005. § 32.0421. ADMINISTRATIVE PENALTY FOR FAILURE TO PROVIDE INFORMATION. (a) The department may impose an administrative penalty on a person who does not comply with a request for information made under Section 32.042(b). (b) The amount of the penalty may not exceed $10,000 for each day of noncompliance that occurs after the 180th day after the date of the request. The amount shall be based on: (1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation; (2) the economic harm caused by the violation; (3) the history of previous violations; (4) the amount necessary to deter a future violation; (5) efforts to correct the violation; and (6) any other matter that justice may require. (c) The enforcement of the penalty may be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. A person who cannot afford to pay the penalty or file the bond may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the department to contest the affidavit as provided by those rules. (d) The attorney general may sue to collect the penalty. (e) A proceeding to impose the penalty is considered to be a contested case under Chapter 2001, Government Code. Added by Acts 1999, 76th Leg., ch. 88, § 2, eff. Sept. 1, 1999. § 32.0422. HEALTH INSURANCE PREMIUM PAYMENT REIMBURSEMENT PROGRAM FOR MEDICAL ASSISTANCE RECIPIENTS. (a) In this section: (1) "Department" means the Texas Department of Health. (2) "Group health benefit plan" means a plan described by Section 1207.001, Insurance Code. (b) The department shall identify individuals, otherwise entitled to medical assistance, who are eligible to enroll in a group health benefit plan. The department must include individuals eligible for or receiving health care services under a Medicaid managed care delivery system. (c) The department shall require an individual requesting medical assistance to provide information as necessary relating to the availability of a group health benefit plan to the individual through an employer of the individual or an employer of the individual's spouse or parent. (d) For an individual identified under Subsection (b), the department shall determine whether it is cost-effective to enroll the individual in the group health benefit plan under this section. (e) If the department determines that it is cost-effective to enroll the individual in the group health benefit plan, the department shall: (1) require the individual to apply to enroll in the group health benefit plan as a condition for eligibility under the medical assistance program; and (2) provide written notice to the issuer of the group health benefit plan in accordance with Chapter 1207, Insurance Code. (f) The department shall provide for payment of: (1) the employee's share of required premiums for coverage of an individual enrolled in the group health benefit plan; and (2) any deductible, copayment, coinsurance, or other cost-sharing obligation imposed on the enrolled individual for an item or service otherwise covered under the medical assistance program. (g) A payment made by the department under Subsection (f) is considered to be a payment for medical assistance. (h) A payment of a premium for an individual who is a member of the family of an individual enrolled in a group health benefit plan under this section and who is not eligible for medical assistance is considered to be a payment for medical assistance for an eligible individual if: (1) enrollment of the family members who are eligible for medical assistance is not possible under the plan without also enrolling members who are not eligible; and (2) the department determines it to be cost-effective. (i) A payment of any deductible, copayment, coinsurance, or other cost-sharing obligation of a family member who is enrolled in a group health benefit plan in accordance with Subsection (h) and who is not eligible for medical assistance: (1) may not be paid under this chapter; and (2) is not considered to be a payment for medical assistance for an eligible individual. (j) The department shall treat coverage under the group health benefit plan as a third party liability to the program. Enrollment of an individual in a group health benefit plan under this section does not affect the individual's eligibility for medical assistance benefits, except that the state is entitled to payment under Sections 32.033 and 32.038. (k) The department may not require or permit an individual who is enrolled in a group health benefit plan under this section to participate in the Medicaid managed care program under Chapter 533, Government Code, or a Medicaid managed care demonstration project under Section 32.041. (l) The Texas Department of Human Services shall provide information and otherwise cooperate with the department as necessary to ensure the enrollment of eligible individuals in the group health benefit plan under this section. (m) Repealed by Acts 2003, 78th Leg., ch. 198, § 2.07(b). (n) The department shall adopt rules as necessary to implement this section. Added by Acts 2001, 77th Leg., ch. 1165, § 2, eff. Aug. 31, 2001. Amended by Acts 2003, 78th Leg., ch. 198, § 2.07(b), eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 728, § 11.129, 11.130, eff. Sept. 1, 2005. § 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. Added by Acts 2003, 78th Leg., ch. 198, § 2.106(a), eff. Sept. 1, 2003. § 32.043. PROCUREMENT RULES FOR PUBLIC DISPROPORTIONATE SHARE HOSPITALS. (a) A public hospital that is designated as a disproportionate share hospital during a fiscal year may acquire goods and services in accordance with this section during the succeeding fiscal year. A procurement of goods or services made in accordance with this section is considered to satisfy any state law requiring purchases by competitive bidding or competitive proposals. (b) The public hospital shall acquire goods or services by any procurement method approved by the Health and Human Services Commission that provides the best value to the public hospital. The public hospital shall document that it considered all relevant factors under Subsection (c) in making the acquisition. (c) The public hospital may consider all relevant factors in determining the best value, including: (1) any installation costs; (2) the delivery terms; (3) the quality and reliability of the vendor's goods or services; (4) the extent to which the goods or services meet the public hospital's needs; (5) indicators of probable vendor performance under the contract such as past vendor performance, the vendor's financial resources and ability to perform, the vendor's experience and responsibility, and the vendor's ability to provide reliable maintenance agreements; (6) the impact on the ability of the public hospital to comply with laws and rules relating to historically underutilized businesses or relating to the procurement of goods and services from persons with disabilities; (7) the total long-term cost to the public hospital of acquiring the vendor's goods or services; (8) the cost of any employee training associated with the acquisition; (9) the effect of an acquisition on the public hospital's productivity; (10) the acquisition price; and (11) any other factor relevant to determining the best value for the public hospital in the context of a particular acquisition. (d) The state auditor or the department may audit the public hospital's acquisitions of goods and services to the extent that state money or federal money appropriated by the state is used to acquire the goods and services. (e) The public hospital may adopt rules and procedures for the acquisition of goods and services under this section. Added by Acts 1997, 75th Leg., ch. 1045, § 2, eff. Sept. 1, 1997. § 32.044. GROUP PURCHASING FOR DISPROPORTIONATE SHARE HOSPITALS. (a) A public or private hospital that is designated as a disproportionate share hospital during a fiscal year may purchase goods and services in accordance with this section during the succeeding fiscal year. A purchase of goods or services made in accordance with this section is considered to satisfy any state law requiring purchases by competitive bidding or competitive proposals. (b) A state or local governmental entity may allow the public or private hospital to purchase goods or services by participating in one or more of the entity's contracts for the purchase of goods or services. (c) The public or private hospital may purchase goods or services in accordance with this section through a group purchasing program that offers discount prices to hospitals or other providers of health care services. (d) The department with the assistance of the Health and Human Services Commission and the General Services Commission shall adopt rules under this section that allow the public or private hospital to make purchases through group purchasing programs except when the department has reason to believe that a better value is available through another procurement method. (e) This section applies to private hospitals only to the extent it authorizes private hospitals to participate in purchasing contracts with governmental entities or to satisfy any state law that may require goods and services the hospital purchases to be competitively procured. This section does not impose new purchasing requirements on a private hospital, except to the extent that the private hospital agrees to be bound by the terms of a contract that is authorized by this section and that it chooses to enter. This section does not affect any explicit or implicit authority that a private hospital has under other law to participate in a group purchasing program or to participate in a purchasing contract with a public entity. Added by Acts 1997, 75th Leg., ch. 1045, § 2, eff. Sept. 1, 1997. § 32.045. ENHANCED REIMBURSEMENT. The department shall develop a procedure for: (1) identifying each service provided under the medical assistance program for which the state is eligible to receive enhanced reimbursement of costs from the federal government; and (2) ensuring that the state seeks the highest level of federal reimbursement available for each service provided. Added by Acts 1997, 75th Leg., ch. 1153, § 1.04(a), eff. June 20, 1997. § 32.046. VENDOR DRUG PROGRAM; SANCTIONS AND PENALTIES. (a) The department shall adopt rules governing sanctions and penalties that apply to a provider in the vendor drug program who submits an improper claim for reimbursement under the program. (b) The department shall notify each provider in the vendor drug program that the provider is subject to sanctions and penalties for submitting an improper claim. Added by Acts 1997, 75th Leg., ch. 1153, § 3.02, eff. Sept. 1, 1997. § 32.0461. VENDOR DRUG PROGRAM; COMPETITIVE BIDDING. (a) In consultation and coordination with the State Council on Competitive Government, the Texas Department of Health shall seek competitive bids for the claims processing function of the vendor drug program. The department and the Texas Department of Human Services may submit a bid proposal under this section in the same manner as a private entity. (b) The Texas Department of Health shall require any person seeking to contract for services under this section to comply with competitive bidding procedures adopted by that department. (c) The Texas Department of Health may award a contract under this section to another person only if the department and the State Council on Competitive Government determine that the provision of services under that contract would be more cost-effective and the time to process claims under the contract would be the same as or faster than having employees of the department continue to process claims. Added by Acts 1999, 76th Leg., ch. 103, § 1, eff. Sept. 1, 1999. § 32.0462. VENDOR DRUG PROGRAM; PRICING STANDARD. (a) Notwithstanding any other provision of state law, the department shall: (1) consider a nationally recognized, unbiased pricing standard for prescription drugs in determining reimbursement amounts under the vendor drug program; and (2) update reimbursement amounts under the vendor drug program at least weekly. (b) The commissioner shall adopt rules implementing this section. In adopting rules, the commissioner shall ensure that implementation of this section does not adversely affect the amount of federal funds available to the state for providing benefits under the vendor drug program. Added by Acts 2003, 78th Leg., ch. 1251, § 10, eff. June 20, 2003. § 32.0463. 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. Added by Acts 2003, 78th Leg., ch. 198, § 2.107(a), eff. Sept. 1, 2003. Renumbered from V.T.C.A., Human Resources Code § 32.0462 by Acts 2005, 79th Leg., ch. 728, § 23.001(58), eff. Sept. 1, 2005. § 32.047. PROHIBITION OF CERTAIN HEALTH CARE SERVICE PROVIDERS. A person is permanently prohibited from providing or arranging to provide health care services under the medical assistance program if: (1) the person is convicted of an offense arising from a fraudulent act under the program; and (2) the person's fraudulent act results in injury to an elderly person, as defined by Section 48.002(1), a disabled person, as defined by Section 48.002(8)(A), or a person younger than 18 years of age. Added by Acts 1997, 75th Leg., ch. 1153, § 3.03, eff. Sept. 1, 1997. § 32.048. MANAGED CARE INFORMATION AND TRAINING PLAN. (a) Subject to the availability of funds, the department shall develop a comprehensive plan to provide information and training about the requirements of a managed care plan to recipients of medical assistance, providers of medical assistance, local health and human services agencies, and other interested parties in each service area in which the department plans to provide medical assistance through a managed care plan. (b) The department shall include in the comprehensive plan: (1) 180 days of initial information and training in a service area beginning not later than the 90th day before the date on which the department plans to begin to provide medical assistance through a managed care plan in that service area; (2) additional information and training at regular intervals determined by the department; and (3) performance measures to evaluate the effectiveness of the information and training. (c) In developing the comprehensive plan, the department shall consult with the Medicaid medical care advisory committee. (d) The department shall submit to the lieutenant governor, the speaker of the house of representatives, the Senate Health and Human Services Committee, and the House Public Health Committee a semiannual report on the effectiveness of the comprehensive plan developed under this section. The department may consolidate this report with any other report relating to the same subject that the department is required to submit under other law. Added by Acts 1997, 75th Leg., ch. 618, § 1, eff. June 11, 1997. Renumbered from § 32.043 by Acts 1999, 76th Leg., ch. 62, § 19.01(74), eff. Sept. 1, 1999. § 32.049. MANAGED CARE CONTRACT COMPLIANCE. (a) The department shall review each managed care organization that has contracted with the department to provide medical assistance to medical assistance recipients through a managed care plan issued by the organization to determine whether the organization is prepared to meet its contractual obligations. (b)(1) The department shall require each managed care organization that has contracted with the department to submit an implementation plan not later than the 90th day before the date on which the department plans to begin to provide medical assistance through a managed care plan in a service area. The implementation plan must include: (A) specific staffing patterns by function for all operations, including enrollment, information systems, member services, quality improvement, claims management, case management, and provider and enrollee training; and (B) specific time frames for demonstrating preparedness for implementation before the date on which the department plans to begin to provide medical assistance through a managed care plan in a service area. (2) The department shall respond within 10 working days if the implementation plan does not adequately meet preparedness guidelines. (3) The department shall require each managed care organization that has contracted with the department to submit status reports on the implementation plan not later than the 60th day and the 30th day before the date on which the department plans to begin to provide medical assistance through a managed care plan in a service area and every 30th day after the department begins to provide medical assistance through a managed care plan in a service area until the 180th day of operations. (c) The department shall conduct a compliance and readiness review of each managed care organization that contracts with the state not later than the 15th day before the date on which the department plans to begin the enrollment process in a service area and again not later than the 15th day before the date on which the department plans to begin to provide medical assistance through a managed care plan in a service area. The review shall include an on-site inspection and tests of service authorization and claims payment systems, complaint processing systems, and any other process or system required by the contract. (d) The department may delay enrollment of medical assistance recipients in a managed care plan if the review reveals that the managed care organization is not prepared to meet its contractual obligations. Added by Acts 1997, 75th Leg., ch. 692, § 1, eff. June 17, 1997. Renumbered from § 32.043 by Acts 1999, 76th Leg., ch. 62, § 19.01(75), eff. Sept. 1, 1999. § 32.050. DUAL MEDICAID AND MEDICARE COVERAGE. (a) At least annually the department shall identify each individual receiving medical assistance under the medical assistance program who is eligible to receive similar assistance under the Medicare program. (b) The department shall analyze claims submitted for payment for a service provided under the medical assistance program to an individual identified under Subsection (a) to ensure that payment is sought first under the Medicare program to the extent allowed by law. (c) For an ambulance service provided to an individual who is eligible under the medical assistance program and Medicare, the medical assistance program shall pay the Medicare deductibles and coinsurance. (d) Except as provided by Subsection (e), 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). (e) A home health services provider is not required to seek reimbursement from Medicare before billing the medical assistance program for services provided to a person who is eligible for Medicare and who: (1) has been determined as not being homebound; or (2) meets other criteria determined by the department. (f) Repealed by Acts 2005, 79th Leg., ch. 1067, § 1. Added by Acts 1997, 75th Leg., ch. 1153, § 1.03(a), eff. June 20, 1997. Amended by Acts 1999, 76th Leg., ch. 710, § 1. Renumbered from § 32.043 by Acts 1999, 76th Leg., ch. 62, § 19.01(76), eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 198, § 2.108, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 1067, § 1, eff. June 18, 2005. § 32.051. MISDIRECTED BILLING. To the extent authorized by federal law, the department shall develop a procedure for the state to: (1) match claims for payment for medical assistance provided under the medical assistance program against data available from other entities, including the Veterans Administration and nursing facilities, to determine alternative responsibility for payment of the claims; and (2) ensure that the appropriate entity bears the cost of a claim. Added by Acts 1997, 75th Leg., ch. 1153, § 1.03(a), eff. June 20, 1997. Renumbered from § 32.044 by Acts 1999, 76th Leg., ch. 62, § 19.01(77), eff. Sept. 1, 1999. § 32.052. WAIVER PROGRAMS FOR CHILDREN WITH DISABILITIES OR SPECIAL HEALTH CARE NEEDS. (a) This section applies to services under the medical assistance program provided to children younger than 23 years of age with disabilities or special health care needs under a waiver granted under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)). (b) In this section, "permanency planning" means a philosophy and planning process designed to achieve family support through the facilitation of a permanent living arrangement that has as its primary feature an enduring and nurturing parental relationship. (c) In developing and providing services subject to this section, the department shall: (1) fully assess a child at the time the child applies for assistance to determine all appropriate services for the child under the medical assistance program, including both waiver and nonwaiver services; (2) ensure that permanency planning is implemented to identify and establish the family support necessary to maintain a child's permanent living arrangement with a family; (3) implement a transition and referral process to prevent breaks in services when a child is leaving a medical assistance waiver program or moving between service delivery systems due to a change in the child's disability status or needs, aging out of the current delivery system, or moving between geographic areas within the state; (4) identify and provide core services addressing a child's developmental needs and the needs of the child's family to strengthen and maintain the child's family; (5) provide for comprehensive coordination and use of available services and resources in a manner that ensures support for families in keeping their children at home; (6) ensure that eligibility requirements, assessments for service needs, and other components of service delivery are designed to be fair and equitable for all families, including families with parents who work outside the home; and (7) provide for a broad array of service options and a reasonable choice of service providers. (d) To ensure that services subject to this section are cost neutral and not duplicative of other services provided under the medical assistance program, the department shall coordinate the provision of services subject to this section with services provided under the Texas Health Steps Comprehensive Care Program. (e) The Health and Human Services Commission shall establish an advisory committee to provide recommendations on the delivery of services subject to this section to the commission and each appropriate agency providing those services. The advisory committee must meet regularly and must include parents of children receiving services subject to this section and representatives of appropriate advocacy organizations. The advisory committee shall provide recommendations relating to: (1) administration of services subject to this section in a manner that eliminates duplication of assessment, evaluation, and services provided under the Texas Health Steps Comprehensive Care Program; (2) coordination of services in a manner that provides accessibility to comprehensive services without gaps in service delivery; (3) procedures for obtaining authorization for services subject to this section and other nonwaiver services under the medical assistance program, including procedures for appealing denials of service; (4) encouragement of the use of waivers under Section 1915(c) of the federal Social Security Act (42 U.S.C. Section 1396n(c)) to provide the state with the flexibility to provide services outside the scope, amount, or duration of nonwaiver services available under the medical assistance program; (5) determination of policies that ensure that a child receiving services subject to this section has access to comprehensive waiver services for adults when the child ages and loses eligibility for services for children; (6) ensuring that the medical assistance waiver programs serve the interest of the child and support families; (7) encouraging medical assistance waiver services to have flexibility to provide services that are outside of the scope, amount, or duration of state plan services; and (8) evaluation of the quality and effectiveness of services subject to this section. (f) In the manner provided by the General Appropriations Act, a member of the advisory committee established under Subsection (e) who is the parent of a child receiving services subject to this section is entitled to reimbursement of travel expenses incurred by the member while conducting the business of the committee. Added by Acts 1999, 76th Leg., ch. 1012, § 1, eff. June 18, 1999. § 32.053. PROGRAM OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE). (a) The department, as a part of the medical assistance program, shall develop and implement a program of all-inclusive care for the elderly (PACE) in accordance with Section 4802 of the Balanced Budget Act of 1997 (Pub. L. No. 105-33), as amended. The department shall provide medical assistance to a participant in the PACE program in the manner and to the extent authorized by federal law. (b) The department shall adopt rules as necessary to implement this section. In adopting rules, the department shall: (1) use the Bienvivir Senior Health Services of El Paso initiative as a model for the program; and (2) ensure that a person is not required to hold a certificate of authority as a health maintenance organization under the Texas Health Maintenance Organization Act (Chapter 20A, Vernon's Texas Insurance Code) to provide services under the PACE program. (c) The department may not contract with a person to provide services under the PACE program unless the person: (1) purchases reinsurance in an amount determined by the department that is sufficient to ensure the person's continued solvency; or (2) has the financial resources sufficient to cover expenses in the event of the person's insolvency. (d) To demonstrate sufficiency of financial resources for purposes of Subsection (c)(2), a person may use cash reserves, a letter of credit, a guarantee of a company affiliated with the person, or a combination of those arrangements. The amount of a person's financial arrangement must be at least equal to the sum of: (1) the total capitation revenue for one month; and (2) the average monthly payment of operating expenses. (e) The department, with the cooperation of the Texas Department on Aging and area agencies on aging, shall develop and implement a coordinated plan to promote PACE program sites operating under this section. The department shall adopt policies and procedures to ensure that caseworkers and any other appropriate department staff discuss the benefits of participating in the PACE program with long-term care clients. Added by Acts 2001, 77th Leg., ch. 170, § 1, eff. Sept. 1, 2001. § 32.054. DENTAL SERVICES. (a) For purposes of this section, the "dental necessity" for a dental service or product is based on whether a prudent dentist, acting in accordance with generally accepted practices of the professional dental community and within the American Dental Association's Parameters of Care for Dentistry and within the quality assurance criteria of the American Academy of Pediatric Dentistry, as applicable, would provide the service or product to a patient to diagnose, prevent, or treat orofacial pain, infection, disease, dysfunction, or disfiguration. (b) A dental service or product may not be provided under the medical assistance program unless there is a dental necessity for the service or product. (c) In providing dental services under the medical assistance program, the department shall: (1) ensure that a stainless steel crown is not used as a preventive measure; (2) require a dentist participating in the medical assistance program to document, through x-rays or other methods established by department rule, the dental necessity for a stainless steel crown before the crown is applied; (3) require a dentist participating in the medical assistance program to comply with a minimum standard of documentation and recordkeeping for each of the dentist's patients, regardless of whether the patient's costs are paid privately or through the medical assistance program; (4) replace the 15-point system used for determining the dental necessity for hospitalization and general anesthesia with a more objective and comprehensive system developed by the department; and (5) take all necessary action to eliminate unlawful acts described by Section 36.002 in the provision of dental services under the medical assistance program, including: (A) aggressively investigating and prosecuting any dentist who abuses the system for reimbursement under the medical assistance program; and (B) conducting targeted audits of dentists whose billing activities under the medical assistance program are excessive or otherwise inconsistent with the billing activities of other similarly situated dentists. (d) In setting reimbursement rates for dental services under the medical assistance program, the department shall: (1) reduce the amount of the hospitalization fee in effect on December 1, 2000, and redistribute amounts made available through reduction of that fee to other commonly billed dental services for which adequate accountability measures exist; (2) eliminate the nutritional consultation fee and redistribute amounts made available through elimination of that fee to other commonly billed dental services for which adequate accountability measures exist; (3) provide for reimbursement of a behavior management fee only if: (A) the patient receiving dental treatment has been previously diagnosed with mental retardation or a mental disability or disorder, and extraordinary behavior management techniques are necessary for therapeutic dental treatment because of the patient's uncooperative behavior; and (B) the dentist includes in the patient's records and on the claim form for reimbursement a narrative description of: (i) the specific behavior problem demonstrated by the patient that required the use of behavior management techniques; (ii) the dentist's initial efforts to manage the patient's behavior through routine behavior management techniques; and (iii) the dentist's extraordinary behavior management techniques subsequently required to manage the patient's behavior; and (4) redistribute amounts made available through limitation of the behavior management fee under Subdivision (3) to other commonly billed dental services for which adequate accountability measures exist. (e) The department shall develop the minimum standard described by Subsection (c)(3) in cooperation with the State Board of Dental Examiners. Added by Acts 2001, 77th Leg., ch. 1470, § 1.01, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Human Resources Code § 32.053 by Acts 2003, 78th Leg., ch. 1275, § 2(98), eff. Sept. 1, 2003. § 32.055. CATASTROPHIC CASE MANAGEMENT. (a) The department shall develop and implement a catastrophic case management system to be used in providing medical assistance to persons with catastrophic health problems. (b) The system must provide for the assignment of a case manager to a recipient of medical assistance with catastrophic health problems that are likely to: (1) require the services of multiple, specialized health care providers; and (2) result in major medical costs. (c) The department shall identify the services to be provided by a case manager assigned under the system. The services must include assessment of the recipient's needs and coordination of all available medical services and payment options. The services may include other support services such as: (1) assistance with making arrangements to receive care from medical facilities; (2) assistance with travel and lodging in connection with receipt of medical care; (3) education of the recipient and the recipient's family members regarding the nature of the recipient's health problems; (4) referral to appropriate support groups; and (5) any other service likely to result in better care provided in a cost-effective manner. (d) Not later than January 15 of each odd-numbered year, the department shall report to the legislature on the implementation of the system. The report must include a statement of: (1) the number of recipients of medical assistance who received catastrophic case management services under the system during the preceding two years; and (2) the estimated savings under the medical assistance program resulting from implementation of the system during the preceding two years. Added by Acts 2001, 77th Leg., ch. 408, § 1, eff. Sept. 1, 2001. Renumbered from V.T.C.A., Human Resources Code § 32.053 by Acts 2003, 78th Leg., ch. 1275, § 2(99), eff. Sept. 1, 2003. § 32.0551. OPTIMIZATION OF CASE MANAGEMENT SYSTEMS. The Health and Human Services Commission shall: (1) create and coordinate staffing and other administrative efficiencies for case management initiatives across the commission and health and human services agencies, as defined by Section 531.001, Government Code; and (2) optimize federal funding revenue sources and maximize the use of state funding resources for case management initiatives across the commission and health and human services agencies. Added by Acts 2005, 79th Leg., ch. 349, § 8(a), eff. Sept. 1, 2005. § 32.056. COMPLIANCE WITH TEXAS HEALTH STEPS. The commissioner by rule shall develop procedures to ensure that recipients of medical assistance who are eligible for Texas Health Steps comply with the regimen of care prescribed by the Texas Health Steps program. Added by Acts 2001, 77th Leg., ch. 584, § 5, eff. Jan. 1, 2002. Renumbered from V.T.C.A., Human Resources Code § 32.053 by Acts 2003, 78th Leg., ch. 1275, § 2(100), eff. Sept. 1, 2003. § 32.057. CONTRACTS FOR DISEASE MANAGEMENT PROGRAMS. (a) The department shall request contract proposals from providers of disease management programs to provide program services to recipients of medical assistance who: (1) have a disease or other chronic health condition, such as heart disease, hemophilia, chronic kidney disease and its medical complications, diabetes, respiratory illness, end-stage renal disease, HIV infection, or AIDS, that the department determines is a disease or condition that needs disease management; and (2) are not eligible to receive those services under a Medicaid managed care plan. (b) The department may contract with a public or private entity to: (1) write the requests for proposals; (2) determine how savings will be measured; (3) identify populations that need disease management; (4) develop appropriate contracts; and (5) assist the department in: (A) developing the content of disease management programs; and (B) obtaining funding for those programs. (c) The executive commissioner of the Health and Human Services Commission, by rule, shall prescribe the minimum requirements a provider of a disease management program must meet to be eligible to receive a contract under this section. The provider must, at a minimum, be required to: (1) use disease management approaches that are based on evidence-supported models, standards of care in the medical community, and clinical outcomes; and (2) ensure that a recipient's primary care physician and other appropriate specialty physicians, or registered nurses, advanced practice nurses, or physician assistants specified and directed or supervised in accordance with applicable law by the recipient's primary care physician or other appropriate specialty physicians, become directly involved in the disease management program through which the recipient receives services. (c-1) A managed care health plan that develops and implements a disease management program under Section 533.009, Government Code, and a provider of a disease management program under this section shall coordinate during a transition period beneficiary care for patients that move from one disease management program to another program. (d) The department may not award a contract for a disease management program under this section unless the contract includes a written guarantee of state savings on expenditures for the group of medical assistance recipients covered by the program. (e) The department may enter into a contract under this section with a comprehensive hemophilia diagnostic treatment center that receives funding through a maternal and child health services block grant under Section 501(a)(2), Social Security Act (42 U.S.C. Section 701), and the center shall be considered a disease management provider. (f) Directly or through a provider of a disease management program that enters into a contract with the department under this section, the department shall, as appropriate and to the extent possible without cost to the state: (1) identify recipients of medical assistance under this chapter or, at the discretion of the department, enrollees in the child health plan under Chapter 62, Health and Safety Code, who are eligible to participate in federally funded disease management research programs operated by research-based disease management providers; and (2) assist and refer eligible persons identified by the department under Subdivision (1) to participate in the research programs described by Subdivision (1). Added by Acts 2003, 78th Leg., ch. 208, § 1, eff. June 16, 2003. Amended by Acts 2005, 79th Leg., ch. 349, § 19(b), eff. Sept. 1, 2005; Acts 2005, 79th Leg., ch. 1047, § 2, eff. Sept. 1, 2005. Renumbered from V.T.C.A., Human Resources Code § 32.059 by Acts 2005, 79th Leg., ch. 728, § 23.001(59), eff. Sept. 1, 2005. § 32.058. LIMITATION ON MEDICAL ASSISTANCE IN CERTAIN ALTERNATIVE COMMUNITY-BASED CARE SETTINGS. (a) In this section: (1) "Institution" means a nursing facility or an ICF-MR facility. (2) "Medical assistance waiver program" means: (A) the community-based alternatives program; (B) the community living assistance and support services program; (C) the deaf-blind/multiple disabilities program; (D) the consolidated waiver pilot program; or (E) the medically dependent children program. (b) Except as provided by Subsection (c) or (d), the department may not provide services under a medical assistance waiver program to a person receiving medical assistance if the cost of providing those services exceeds the individual cost limit specified in the medical assistance waiver program. (c) The department shall continue to provide services under a medical assistance waiver program to a person who is receiving those services on September 1, 2005, at a cost that exceeds the individual cost limit specified in the medical assistance waiver, if continuation of those services: (1) is necessary for the person to live in the most integrated setting appropriate to the needs of the person; and (2) does not affect the department's compliance with the federal cost-effectiveness and efficiency requirements of the medical assistance waiver program under 42 U.S.C. Sections 1396n(b) and 1396n(c)(2)(D). (d) The department may continue to provide services under a medical assistance waiver program to a person who is ineligible to receive those services under Subsection (b) and to whom Subsection (c) does not apply if: (1) the cost of providing those services to the person under the medical assistance waiver program does not exceed 133.3 percent of the individual cost limit specified in the medical assistance waiver program; and (2) continuation of those services does not affect the department's compliance with the federal cost-effectiveness and efficiency requirements of the medical assistance waiver program under 42 U.S.C. Sections 1396n(b) and 1396n(c)(2)(D). (e) The executive commissioner of the Health and Human Services Commission may adopt rules under which the department may exempt a person from the cost limit established under Subsection (d)(1). Added by Acts 2005, 79th Leg., ch. 317, § 1, eff. Sept. 1, 2005. § 32.059. USE OF RESPIRATORY THERAPISTS FOR RESPIRATORY THERAPY SERVICES. The department by rule shall require that respiratory therapy services for ventilator-dependent persons furnished as part of a plan of care under this chapter be provided by a respiratory therapist authorized to practice respiratory care under Chapter 604, Occupations Code, when: (1) respiratory therapy is determined by the recipient's treating physician to be the most effective method of treatment; and (2) the use of a respiratory therapist is practicable and cost-neutral or cost-effective. Acts 2003, 78th Leg., ch. 1167, § 1, eff. Sept. 1, 2003. § 32.060. NURSING FACILITY QUALITY ASSURANCE TEAM.Text of section as added by Acts 2003, 78th Leg., ch. 198, § 2.109(a) (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. Added by Acts 2003, 78th Leg., ch. 198, § 2.109(a), eff. Sept. 1, 2003. For text of section as added by Acts 2003, 78th Leg., ch. 204, § 16.01, see § 32.060, post. § 32.060. ADMISSIBILITY OF CERTAIN EVIDENCE RELATING TO NURSING INSTITUTIONS.Text of section as added by Acts 2003, 78th Leg., ch. 204, § 16.01 (a) The following are not admissible as evidence in a civil action: (1) any finding by the department that an institution licensed under Chapter 242, Health and Safety Code, has violated a standard for participation in the medical assistance program under this chapter; or (2) the fact of the assessment of a monetary penalty against an institution under Section 32.021 or the payment of the penalty by an institution. (b) This section does not apply in an enforcement action in which the state or an agency or political subdivision of the state is a party. (c) Notwithstanding any other provision of this section, evidence described by Subsection (a) is admissible as evidence in a civil action only if: (1) the evidence relates to a material violation of this chapter or a rule adopted under this chapter or assessment of a monetary penalty with respect to: (A) the particular incident and the particular individual whose personal injury is the basis of the claim being brought in the civil action; or (B) a finding by the department that directly involves substantially similar conduct that occurred at the institution within a period of one year before the particular incident that is the basis of the claim being brought in the civil action; and (2) the evidence of a material violation has been affirmed by the entry of a final adjudicated and unappealable order of the department after formal appeal; and (3) the record is otherwise admissible under the Texas Rules of Evidence. Added by Acts 2003, 78th Leg., ch. 204, § 16.01, eff. Sept. 1, 2003. For text of section as added by Acts 2003, 78th Leg., ch. 198, § 2.109(a), see § 32.060, ante. § 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. Added by Acts 2003, 78th Leg., ch. 198, § 2.110, eff. Sept. 1, 2003. § 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. Added by Acts 2003, 78th Leg., ch. 198, § 2.111(a), eff. Jan. 1, 2004. § 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. Added by Acts 2003, 78th Leg., ch. 198, § 2.112(a), eff. Sept. 1, 2003. § 32.066. CONSUMER-DIRECTED SERVICES PROGRAM.Text of section effective until September 1, 2007 (a) In this section: (1) "Consumer" means a participant in the consumer-directed services program established under this section who receives a stipend under the program. (2) "Home and community-based services" include: (A) personal care services; (B) a home modification and assistive device that may increase the consumer's independence; (C) respite services, as defined by Section 142.001, Health and Safety Code; and (D) personal assistance services, as defined by Section 142.001, Health and Safety Code. (3) "Medical assistance waiver program" means: (A) the community-based alternatives program; (B) the community living assistance and support services program; (C) the deaf-blind/multiple disabilities program; (D) the consolidated waiver pilot program; or (E) the medically dependent children program. (b) The department by rule shall establish a consumer-directed services program in which certain individuals enrolled in a medical assistance waiver program are given a monthly stipend to direct the delivery of home and community-based services provided to the individual under the waiver program. (c) The department shall work in conjunction with the Texas Rehabilitation Commission, the comptroller, and any other appropriate agency to develop the consumer-directed services program. (d) In establishing the consumer-directed services program, the department shall: (1) ensure that the amount of a consumer's stipend is based on the assessed functional needs of a consumer and the financial resources available to the medical assistance waiver program providing services to the consumer; (2) develop purchasing guidelines to assist consumers in using the stipend to purchase necessary and cost-effective home and community-based services; (3) design the program in a manner in which a private entity or local governmental entity may apply with the department for approval to act as the fiscal intermediary for a consumer for the limited purpose of: (A) managing the consumer's stipend; (B) computing federal and state employment taxes; (C) preparing and filing income tax forms and reports; and (D) distributing money to a service provider; (4) ensure that a consumer is the employer of and retains control over the selection, management, and dismissal of an individual providing home and community-based services; and (5) develop a system to monitor the program to ensure: (A) adherence to existing applicable program standards; (B) appropriate use of funds; and (C) consumer satisfaction with the delivery of services. (e) The Texas Rehabilitation Commission and comptroller shall provide information to the department as necessary to facilitate the development and implementation of the consumer-directed services program. (f) The department may not implement the consumer-directed services program within the consolidated waiver pilot program before January 2, 2004. (g) The department, in consultation with the Centers for Medicare and Medicaid Services, shall: (1) determine which state or other government-funded programs are appropriate for inclusion in the consumer-directed services program; and (2) provide for the inclusion of cost-sharing provisions as practicable. (h) Not later than February 1 of each year, the department shall submit to the governor, the lieutenant governor, and the clerks of the standing committees of the senate and house of representatives with primary jurisdiction over long-term care services a report on the effectiveness, including the cost-effectiveness, of the consumer-directed services program. The report must include recommendations for improvements to the program. (i) This section expires September 1, 2007. Added by Acts 2003, 78th Leg., ch. 198, § 2.202(a), eff. Sept. 1, 2003. § 32.067. DELIVERY OF COMPREHENSIVE CARE SERVICES TO CERTAIN RECIPIENTS OF MEDICAL ASSISTANCE. (a) In this section, "certified agency" and "home health service" have the meanings assigned by Section 142.001, Health and Safety Code. (b) The department shall assure that any agency licensed to provide home health services under Chapter 142, Health and Safety Code, and not only a certified agency licensed under that chapter, may provide home health services to individuals enrolled in the Texas Health Steps Comprehensive Care Program. Added by Acts 2003, 78th Leg., ch. 198, § 2.204, eff. Sept. 1, 2003. § 32.068. LANGUAGE INTERPRETER SERVICES PILOT PROGRAM.Text of section effective until September 1, 2009 (a) The Health and Human Services Commission shall establish a pilot program to provide recipients of medical assistance with oral and written language interpreter services in accordance with federal law and applicable publications of the federal Centers for Medicare and Medicaid Services and the Office for Civil Rights of the United States Department of Health and Human Services. (b) The commission shall establish the pilot program through local governmental entities in at least five sites. The commission shall request participation by, and give first priority to, the following local governmental entities: (1) the Harris County Hospital District; (2) the Bexar County Hospital District; (3) the El Paso County Hospital District; (4) the Tarrant County Hospital District; and (5) the Parkland Health and Hospital System. (c) If one or more local governmental entities listed under Subsection (b) decline to participate in the pilot program, the commission shall request participation by other local governmental entities until the commission obtains agreements to participate from a sufficient number of local governmental entities to enable the commission to establish the program in at least five sites. (d) The commission shall ensure that the pilot program is financed using: (1) money provided to the commission for purposes of the program by participating local governmental entities to maximize federal matching money under the medical assistance program; and (2) any corresponding federal matching money. (e) A participating local governmental entity may provide money to the commission by certification or intergovernmental transfer to finance the pilot program as described by Subsection (d)(1). (f) Not later than January 1, 2007, the commission shall evaluate the pilot program and report to the 80th Legislature on the effectiveness of the program and the feasibility of expanding the program statewide. (g) This section expires September 1, 2009. Added by Acts 2005, 79th Leg., ch. 78, § 1, eff. May 17, 2005. § 32.069. CHRONIC KIDNEY DISEASE MANAGEMENT INITIATIVE. A provider of disease management programs under Section 32.059, as added by Chapter 208, Acts of the 78th Legislature, Regular Session, 2003, shall develop a program to provide screening for and diagnosis and treatment of chronic kidney disease and its medical complications under the medical assistance program. The program must use generally recognized clinical practice guidelines and laboratory assessments that identify chronic kidney disease on the basis of impaired kidney function or the presence of kidney damage. Added by Acts 2005, 79th Leg., ch. 1047, § 3, eff. Sept. 1, 2005. § 32.070. AUDITS OF PROVIDERS. (a) In this section, "provider" means an individual, firm, partnership, corporation, agency, association, institution, or other entity that is or was approved by the department to provide medical assistance under contract or provider agreement with the department. (b) The executive commissioner of the Health and Human Services Commission shall adopt rules governing the audit of providers in the medical assistance program. (c) The rules must: (1) provide that the agency conducting the audit must notify the provider, and the provider's corporate headquarters, if the provider is a pharmacy that is incorporated, of the impending audit not later than the seventh day before the date the field audit portion of the audit begins; (2) limit the period covered by an audit to three years; (3) provide that the agency conducting the audit must accommodate the provider's schedule to the greatest extent possible when scheduling the field audit portion of the audit; (4) require the agency conducting the audit to conduct an entrance interview before beginning the field audit portion of the audit; (5) provide that each provider must be audited under the same standards and parameters as other providers of the same type; (6) provide that the audit must be conducted in accordance with generally accepted government auditing standards issued by the Comptroller General of the United States or other appropriate standards; (7) require the agency conducting the audit to conduct an exit interview at the close of the field audit portion of the audit with the provider to review the agency's initial findings; (8) provide that, at the exit interview, the agency conducting the audit shall: (A) allow the provider to: (i) respond to questions by the agency; (ii) comment, if the provider desires, on the initial findings of the agency; and (iii) correct a questioned cost by providing additional supporting documentation that meets the auditing standards required by Subdivision (6) if there is no indication that the error or omission that resulted in the questioned cost demonstrates intent to commit fraud; and (B) provide to the provider a preliminary audit report and a copy of any document used to support a proposed adjustment to the provider's cost report; (9) permit the provider to produce documentation to address any exception found during an audit not later than the 10th day after the date the field audit portion of the audit is completed; (10) provide that the agency conducting the audit shall deliver a draft audit report to the provider not later than the 60th day after the date the field audit portion of the audit is completed; (11) permit the provider to submit to the agency conducting the audit a written management response to the draft audit report or to appeal the findings in the draft audit report not later than the 30th day after the date the draft audit report is delivered to the provider; (12) provide that the agency conducting the audit shall deliver the final audit report to the provider not later than the 180th day after the date the field audit portion of the audit is completed or the date on which a final decision is issued on an appeal made under Subdivision (13), whichever is later; and (13) establish an ad hoc review panel, composed of providers practicing or doing business in this state appointed by the executive commissioner of the Health and Human Services Commission, to administer an informal process through which: (A) a provider may obtain an early review of an audit report or an unfavorable audit finding without the need to obtain legal counsel; and (B) a recommendation to revise or dismiss an unfavorable audit finding that is found to be unsubstantiated may be made by the review panel to the agency, provided that the recommendation is not binding on the agency. (d) This section does not apply to a computerized audit conducted using the Medicaid Fraud Detection Audit System or an audit or investigation of fraud and abuse conducted by the Medicaid fraud control unit of the office of the attorney general, the office of the state auditor, the office of the inspector general, or the Office of Inspector General in the United States Department of Health and Human Services. Added by Acts 2005, 79th Leg., ch. 811, § 1, eff. Sept. 1, 2005. § 32.071. RECIPIENT AND PROVIDER EDUCATION. (a) The department shall develop and implement a comprehensive medical assistance education campaign for recipients and providers to ensure that care is provided in such a way as to improve patient outcomes and maximize cost-effectiveness. The department shall ensure that educational information developed under this section is demographically relevant and appropriate for each recipient or provider to whom the information is provided. (b) The comprehensive medical assistance education campaign must include elements designed to encourage recipients to obtain, maintain, and use a medical home and to reduce their use of high-cost emergency department services for conditions that can be treated through primary care or nonemergency physicians or other providers. The campaign must include the dissemination of educational information through newsletters and emergency department staff members and at local health fairs, unless the department determines that these methods of dissemination are not effective in increasing recipients' appropriate use of the health care system. (c) The department shall evaluate whether certain risk groups may disproportionately increase their appropriate use of the health care system as a result of targeted elements of an education campaign. If the department determines that certain risk groups will respond with more appropriate use of the system, the department shall develop and implement the appropriate targeted educational elements. (d) The department shall develop a system for reviewing recipient prescription drug use and educating providers with respect to that drug use in a manner that emphasizes reducing inappropriate prescription drug use and the possibility of adverse drug interactions. (e) The department shall coordinate the medical assistance education campaign with area health education centers, federally qualified health centers, as defined by 42 U.S.C. Section 1396d(l)(2)(B), and other stakeholders who use public funds to educate recipients and providers about the health care system in this state. The department shall make every effort to maximize state funds by working through these partners to maximize receipt of additional federal funding for administrative and other costs. (f) The department shall coordinate with other state and local agencies to ensure that community-based health workers, health educators, state eligibility determination employees who work in hospitals and other provider locations, and promoters are used in the medical assistance education campaign, as appropriate. (g) The department shall ensure that all state agencies that work with recipients, all administrative persons who provide eligibility determination and enrollment services, and all service providers use the same curriculum for recipient and provider education, as appropriate. Added by Acts 2005, 79th Leg., ch. 349, § 9(a), eff. Sept. 1, 2005.
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