TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 370. HUMAN TRAFFICKING RESOURCE CENTER

The executive commissioner of the Texas Health and Human Services Commission (HHSC) adopts new §370.456, concerning Prohibition of Provider Discrimination Based on Immunization Status.

Section 370.456 is adopted with changes to the proposed text as published in the December 20, 2024, issue of the Texas Register (49 TexReg 10284). This rule will be republished.

BACKGROUND AND JUSTIFICATION

The new section is necessary to implement Texas Government Code §531.02119, added by House Bill 44, 88th Legislature, Regular Session, 2023, which requires HHSC to adopt rules necessary to prohibit Medicaid and Children's Health Insurance Program (CHIP) providers from discriminating against Medicaid recipients or CHIP members by refusing to provide health care services based solely on immunization status.

Texas Government Code §531.02119 outlines the requirements for the prohibition of discrimination based on immunization status, exceptions to this prohibition, requires HHSC to withhold payment from providers that violate the requirements until HHSC finds the provider is in compliance, and requires HHSC to establish administrative and judicial reviews for providers who are alleged to be in violation.

COMMENTS

The 31-day comment period ended January 20, 2025.

During this period, HHSC received comments regarding the proposed rules from three commenters: The Immunization Partnership, the Texas Medical Association, and the Texas Pediatric Society. A summary of comments relating to the rule and HHSC's responses follows.

Comment: One commenter commented how an individual may request an exemption is too broad and impacts the administration of physicians' offices and the physicians' patients. The commenter recommended HHSC: 1) allow providers to require a patient seeking an exemption to a provider's immunization policy document the request on a standardized form for retention in patient files; and 2) require immunization exemptions to be documented in ImmTrac2.

Response: HHSC disagrees with the comment and declines to revise the rule as recommended. Allowing providers to require a documented request from the patient using a standardized form would contradict Government Code §531.02119(a-1)(2), which requires providers to accept oral requests for an exemption. In addition, Texas Government Code §531.02119 does not grant HHSC the authority to track exemption requests under this section.

Comment: Two commenters recommended HHSC amend the proposed rule to define that the specialists in oncology or organ transplant services that are exempt from the rule include: 1) any physician who is currently or was previously board certified in a medical specialty relevant to one of those areas of treatment; and 2) a provider whose clinical practice includes the care of patients who are immunocompromised from receiving or having received oncology or organ transplant services.

Response: HHSC disagrees with the comment and declines to revise §370.456(c) as recommended. Expanding the exemption in §370.456(c), which applies only to a provider who is a specialist in oncology or organ transplant services, would go beyond the scope of the exemption provided in Texas Government Code §531.02119(d).

Comment: Two commenters recommended HHSC revise the due process provisions to address how HHSC will: 1) determine the existence of an alleged violation; 2) provide notice to the provider; 3) provide an opportunity for the provider to demonstrate compliance; and 4) detail the process for requesting an administrative hearing and judicial review. The commenters also recommended HHSC include an informal resolution process, including the opportunity for an informal resolution meeting.

Response: HHSC revised §370.456(d) to outline more clearly how HHSC determines if a provider violated the rule before withholding payments; added a new paragraph §370.456(d)(2) to set forth that a provider subject to an HHSC vendor hold has the right to notice of an alleged violation and the procedures for requesting an appeal; and renumbered the other paragraphs accordingly. However, HHSC declines to revise the rule to add specific timelines and an informal resolution process. The processes for requesting an administrative hearing and judicial review are already provided for under Texas Administrative Code Chapter 357, Subchapter I, and under Texas Government Code Chapter 2001.

A minor editorial change was made to renumbered §370.456(d)(4) to reflect that the final decision is from an administrative appeal instead of an administrative review.

Additionally, due to a filing discrepancy by HHSC, this rule is adopted in Title 26, Chapter 370 instead of Title 1, Chapter 370. The rule will be administratively transferred to the intended location in Title 1, Chapter 370, State Children's Health Insurance Program, Subchapter E, Provider Requirements, §370.456, Prohibition of Provider Discrimination Based on Immunization Status.

STATUTORY AUTHORITY

The new section is adopted under Texas Government Code §531.02119, which authorizes the executive commissioner of HHSC to adopt rules necessary to prohibit a CHIP provider from refusing to provide health care services to a CHIP member based solely on the member's immunization status; Texas Government Code §524.0151, which directs the executive commissioner of HHSC to adopt rules necessary to carry out the commission's duties; and Texas Health and Safety Code §62.051(d), which directs HHSC to adopt rules necessary to implement the Children's Health Insurance Program.

§ 370.456. Prohibition of Provider Discrimination Based on Immunization Status.

(a) Pursuant to Texas Government Code §531.02119, a Children's Health Insurance Program (CHIP) provider may not refuse to provide health care services to a CHIP member based solely on the member's refusal or failure to obtain a vaccine or immunization for a particular infectious or communicable disease.

(b) Notwithstanding subsection (a) of this section, a provider is not in violation of this section if the provider:

(1) adopts a policy requiring some or all the provider's patients, including patients who are CHIP members to be vaccinated or immunized against a particular infection or communicable disease to receive health care services from the provider; and

(2) provides an exemption to the policy described in paragraph (1) of this subsection and accepts an oral or written request from the CHIP member or legally authorized representative, as defined by Texas Health and Safety Code §241.151, for an exemption from each required vaccination or immunization based on:

(A) a reason of conscience, including a sincerely held religious belief, observance, or practice, that is incompatible with the administration of the vaccination or immunization; or

(B) a recognized medical condition for which the vaccination or immunization is contraindicated.

(1) oncology; or

(2) organ transplant services.

(d) HHSC or its designee withholds payments to any CHIP participating provider only if HHSC determines, after review of the evidence obtained, that the provider is in violation of this section.

(1) HHSC withholds payments for services to the provider until HHSC determines the provider corrected the circumstances resulting in the vendor hold.

(2) A provider subject to an HHSC vendor hold under this section has the right to notice of the alleged violation and the procedures for requesting an appeal.

(3) A provider has the right to appeal an HHSC vendor hold as provided by Chapter 357, Subchapter I of this title (relating to Hearings Under the Administrative Procedure Act).

(4) If the final decision in the administrative appeal is adverse to the appellant, the appellant may obtain a judicial review by filing for review with a district court in Travis County not later than the 30th day after the date of the notice of the final decision as provided under Texas Government Code Chapter 2001.

(e) Subsection (d) of this section applies only to an individual provider. HHSC or its designee may not refuse to reimburse a provider who did not violate this section based on the provider's membership in a provider group or medical organization with an individual provider who violated this section.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on April 9, 2025.

TRD-202501153

Karen Ray

Chief Counsel

Health and Human Services Commission

Effective date: April 29, 2025

Proposal publication date: December 20, 2024

For further information, please call: (512) 438-2910