PART 2. TEXAS ETHICS COMMISSION
CHAPTER 26. POLITICAL AND LEGISLATIVE ADVERTISING
The Texas Ethics Commission (TEC) adopts amendments to TEC Rules in Chapter 26. Specifically, the TEC adopts amendments to §26.1, regarding the political advertising disclosure statement required on certain political advertising. These amendments are adopted without changes to the proposed text as published in the April 19, 2024, issue of the Texas Register (49 TexReg 2376). The rule will not be republished.
This proposed rule amendment narrows the exception for political advertising disclosure statements created by the existing TEC Rule § 26.1.
Political advertising generally needs to include a political advertising disclosure statement that indicates the name of the person who paid for it, or if authorized by a candidate or committee, the candidate or committee who authorized it. Tex. Elec. Code § 255.001. The existing TEC Rule § 26.1 was meant to clarify that a political advertising disclosure requirement is not required on social media posts when no person is paying to post the political advertising. Under existing TEC Rule §26.1, the political advertising disclosure requirement is not required for most social media posts where "the person posting or re-posting" did not make an expenditure exceeding $100 in a reporting period for the post. 1 Tex. Admin. Code §26.1(c)(2). The existing rule clarifies that when no payment is made in excess of $100 by the person posting the political advertising, no disclosure statement is required. The rule makes sense considering that the disclosure identifies "the person who paid for the political advertising." Tex. Elec. Code § 255.001(a)(2)(A). As a typical social media post requires no payment, there is no "person who paid for" it to be disclosed.
However, the actor in the existing rule is "the person posting or re-posting" political advertising on social media. The existing rule does not clearly address a situation where the person physically making the post is being paid to do so. Although the law clearly requires the identification of the person who paid to publish, distribute, or broadcast political advertising containing express advocacy, it is unclear, under the existing rule, whether a political advertising disclosure statement is required when the person making the post is paid to do so.
The adopted amendment makes clear, consistent with Section 255.001, that a political advertising disclosure statement is required when a person is paid to post political advertising on the Internet. See Tex. Elec. Code §§ 255.001 (requiring the disclosure of the name of the person who paid for political advertising appearing on the Internet); 251.001(16) (defining political advertising).
The TEC fully considered all written and oral comments on the proposed rule amendment. The following people furnished written comments in support of the proposed amendment: Chris Tomlinson, William Cohen, and Steve Snyder.
The following people submitted comments in opposition to the rule amendment: Pam Pardo and David Keating, president of the Institute for Free Speech. Ms. Pardo expressed concern that the amended rule would infringe on citizens' First Amendment rights and lead to selective enforcement. Both Ms. Pardo and Mr. Keating expressed concern that the term "in return for consideration" used in the rule amendment is too broad. The TEC believes the concerns to be unfounded.
First, the rule amendment simply harmonizes TEC Rule 26.1 with the statutory requirements of Section 255.001. Regardless of personal policy preferences, the TEC is obligated to ensure a rule is not in direct conflict with statute. The disclosure required by statute is also constitutional. See, e.g., Citizens United v. FEC, 558 U.S. 310, 369-72 (2010). The scope of the statutory disclosure requirement is narrow, applying to only paid political advertising containing express advocacy. Tex. Elec. Code § 255.001(a). The disclosure requirement, which imposes no limit to speech, is consistent with the First Amendment. Citizens United, 558 U.S. at 369-72.
In terms of enforcement, TEC may only accept jurisdiction over a sworn complaint alleging facts that would constitute a violation of law. Mere speculation that a social media post was made in return for consideration would be insufficient for the TEC to accept jurisdiction of a sworn complaint.
Finally, the term "in return for consideration" is not vague or overly board. The amended rule imports the term from the definition of political advertising. Tex. Elec. Code § 251.001(16) (Political advertising includes certain communications that "in return for consideration, [are] published in a newspaper, magazine, or other periodical or is broadcast by radio of television."). In doing so, it imports the decades-long understanding of what communications appear in a newspaper, radio, or television "in return for consideration" and therefore require a disclosure statement. For example, it is understood that express electoral advocacy the newspaper person is paid to carry (what are commonly referred to as advertisements) require a disclosure statement, but the newspaper's own news articles or editorials do not. Similarly, a specific message a person is paid to post on social media is done so in return for consideration. A person's own speech is not.
Andrew Cates also submitted written and oral comments. He was generally supportive of the amendment but believed it did not go far enough to impose liability on the person making the payment for the political advertising. Mr. Cates' comment suggested the TEC should focus on the person making the payment rather than the person receiving the payment to post the advertisement. Whether and under what contexts the law imposes liability on the person who pays for political advertising that does not contain a required disclosure statement is a question that is not necessary to answer with this rule amendment.
This rule amendment makes clear that paid social media posts are not exempt from the disclosure requirement. Establishing that the disclosure is required is the first step. Whether the payor is liable if the person who he pays to post political advertising does not include the disclosure is a next-level question and is not necessary to be addressed in this rule. First, the law attaches liability to a person who "knowingly cause[s] to be published, distributed, or broadcast political advertising containing express advocacy." Id. § 255.001(a). Whether the person who pays for others to post political advertising without a disclosure statement knowingly caused it to be published is a fact-intensive inquiry that can be answered through adjudication. If further clarity is required it can be the subject of a future rulemaking.
The amended rule is adopted under Texas Government Code §571.062, which authorizes the Commission to adopt rules to administer Title 15 of the Election Code.
The adopted amended rule affects Title 15 of the Election Code.
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 July 19, 2024.
TRD-202403204
James Tinley
General Counsel
Texas Ethics Commission
Effective date: August 8, 2024
Proposal publication date: April 19, 2024
For further information, please call: (512) 463-5800
CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS
The State Office of Administrative Hearings (SOAH) adopts amendments and new rules in the following sections of Texas Administrative Code, Title 1, Part 7, Chapter 159, Rules of Procedure for Administrative License Suspension Hearings:
Subchapter A, General, §159.1, Scope; §159.3, Definitions; and §159.7, Other SOAH Rules of Procedure.
Subchapter B, Representation, which is retitled as Case Administration; §159.51, Withdrawal of Counsel, which is replaced with a new §159.51 concerning Jurisdiction; adopting a new §159.53 concerning Filing Documents; adopting a new §159.55 concerning Service of Documents on Parties; adopting a new §159.57 concerning Representation of the Parties; adopting a new §159.59 concerning Withdrawal and Substitution of Counsel; and adopting a new §159.61 concerning Electronic Case Records Access.
Subchapter C, Witnesses and Subpoenas, §159.101, Subpoenas Generally; §159.103, Issuance and Service of Subpoenas; and adopting a new §159.104, concerning Witness Fees.
Subchapter D, Discovery, §159.151 Prehearing Discovery.
Subchapter E, Hearing and Prehearing, §159.201, Scheduling and Notice of Hearing; §159.203, Waiver or Dismissal of Hearing; §159.207, Continuances; §159.209, Participation by Telephone or Videoconference; adopting a new §159.210 concerning Hearing on Written Submission; §159.211 Hearings; and §159.213 Failure to Attend Hearing and Default.
Subchapter F, Disposition of Case, §159.253, Decision of the Judge; adopting a new §159.254 concerning Correction of Final Decision; §159.255 Appeal of Judge's Decision; and adopting a new §159.257 concerning Disposition of Criminal Charges and Expunction of Records.
Some of the new rules are adopted with changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3647) and they will be republished. The rules adopted with changes are §§159.3, 159.51, 159.53, 159.55, 159.61, 159.103, and 159.207.
Some of the new rules are adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3647) and they will not be republished. The rules adopted without changes are §§159.1, 159.7, 159.57, 159.59, 159.101, 159.104, 159.151, 159.201, 159.203, 159.209, 159.210, 159.211, 159.213, 159.253, 159.254, 159.255, and 159.257.
Basis for Rule Adoption
The adopted rule amendments will update and modify the procedural rules for administrative driver's license revocation (ALR) hearings at SOAH by promoting best practices in the handling of ALR cases. The amendments are adopted as part of a continuing effort to align administrative practice before SOAH with modern legal practices and standards utilized by the Texas judiciary.
The proposed rule amendments relate to the transfer of responsibility for the scheduling of ALR hearings from DPS to SOAH; SOAH's implementation of a modern automated case management system that relies on an all-electronic administrative case record; SOAH's adoption of the Texas judiciary's eFile Texas platform for electronic filing and service; the online availability of ALR case records through the Texas judiciary's re:SearchTX platform; and the predominant use of videoconference technology as an efficient and effective means for conducting ALR hearings. Other amendments will conform the rules to standing orders of the Chief Administrative Law Judge and clarify SOAH's current case-handling practices. The adopted amendments are substantially similar to practices already in use.
As finally adopted, the following changes to the rules were made based on public comment.
§159.3, Paragraphs (12), (13), and (14), §159.53, Subsections (b)(1) and (c)(1), and §159.61, Subsection (a) were modified to update references to the use of electronic filing systems "certified by the Office of Court Administration" with references to the use of electronic filing systems "approved by the Texas Supreme Court." This change updates the new rule for consistency with recent amendments to the Texas Rules of Civil Procedure ordered by the Texas Supreme Court in Misc. Docket No. 24-9030 on May 28, 2024.
§159.103, Subsection (c) concerning the method of serving subpoenas was modified to specifically enumerate the acceptable forms of service that may be used to deliver a subpoena to a witness. The modified rule includes clarification that a subpoena may be electronically transmitted to the last known electronic address of the witness if the witness provides acknowledgment of receipt. The modified rule also specifies what constitutes proof of service depending on the method of service used. Changes to this section are intended to promote greater consistency in ALJ rulings on questions about the service of subpoenas and will provide case participants with an electronic option to reduce the burden and expense of serving a subpoena in an ALR proceeding. The modified rule is consistent with other technology-related enhancements to SOAH's rules of procedure.
Summary of Comments and Agency Responses.
The public comment period began May 24, 2024, and ended June 24, 2024. SOAH received written comments on the proposed rules from SOAH's Chief Clerk and an attorney who regularly appears in ALR cases at SOAH. Each of the comments raised concerns or provided recommendations about specific sections of the rules and are addressed as follows:
Comment: One commenter suggested that §159.101(a)(3) (requiring the party issuing a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person served) should be amended to mutually avoid any undue burden or expense on the person serving the subpoena. In support of this recommendation, the commenter explained how service of subpoenas by email, with acknowledgement of receipt, could provide an effective method of ensuring delivery of service in a way that promotes fairness and reduces the burden and expense to the person serving a subpoena.
Response: This comment is outside the scope of the current rulemaking, as §159.101(a) was not proposed for amendment. Moreover, the language of the current §159.101(a)(3) closely tracks the language of Rule 176.7 of the Texas Rules of Civil Procedure, the purpose of which is limited to avoiding undue burden and expense on the person served. The commenter's suggestions regarding the service of subpoenas by email will be addressed in the adopted amendments to §159.103.
Comment: One commenter stated that while both the current and the proposed §159.103 require a subpoena to be served by delivering a copy to the witness, the manner of delivery is not defined. Because the acceptable forms for service are not clearly defined, there is some inconsistency among ALJs when ruling on objections to the service of subpoenas, particularly with respect to service by email. The commenter proposed consideration of a rule that provides more guidance on what classifies as acceptable forms of service. The commenter cited article 24.04 of the Texas Code of Criminal Procedure as an example, and suggested that the incorporation of a rule allowing electronic service with acknowledgement of receipt would be consistent with the other technology related amendments to SOAH's rules.
The commenter also expressed specific concerns about the proposed §159.103(c)(2). Subsection (c)(2) relates to the service of subpoenas when a witness is a peace officer. The proposed rule would have required peace officers to be served through their law enforcement agency as the primary method of service, rather than as accepted form of alternative service. The commenter expressed concern about a general lack of established local law enforcement policies addressing the alternative service of ALR subpoenas, and how some law enforcement agencies actively discourage the service of ALR subpoenas to their peace officers. The commenter expressed concern that the proposed rule could make the service of ALR subpoenas to peace officers more difficult.
Response: SOAH generally agrees with each of these comments to §159.103. To better clarify the acceptable forms of serving an ALR subpoena, SOAH has modified §159.103(c) for adoption to describe several acceptable methods of service with particularity. The modified rule will also expressly allow electronic service of a subpoena (e.g., by email) if accompanied by an acknowledgement of receipt. SOAH also recognizes how the preferences and practices of law enforcement regarding the service of subpoenas to peace officers may vary widely on a statewide basis. As a result, the rule is modified to retain SOAH's current practice of allowing peace officers to be subpoenaed through their employing law enforcement agency as an acceptable form of alternative service, rather than as the primary method of service. Finally, §159.103(d) concerning the return of service is modified to specify the type of information required to show proof of delivery depending on which of the approved methods of service in §159.103(c) is used.
Comment: Citing the Texas Supreme Court's ruling in Misc. Docket No. 24-9030, one commenter commented that the Supreme Court recently changed all reference in court rules to a "service provider certified by the Office of Court Administration" to "system approved by the Supreme Court." The commenter recommended that SOAH make corresponding updates to the ALR rules for consistency.
Response: SOAH agrees, and has adopted modifications to §159.3, Subsections (12), (13), and (14), §159.53, Subsections (b)(1) and (c)(1), and §159.61, Subsection (a) to incorporate references to the use of electronic filing systems "approved by the Texas Supreme Court."
In addition, the following non-substantive corrections are made to the rules as finally adopted:
§159.3(8) defining "Defense Counsel" is corrected to refer to 1 Texas Administrative Code §155.201(c) to describe the approval process required for non-resident attorneys, not §159.57(d).
§159.3(15)(C) defining a digital signature should refer to a "signer's" identity (singular possessive).
§159.51(relating to Jurisdiction): Subsection (d)(2) is amended to correctly reference §159.213(f) referring to the process for vacating a default, not §159.213(g).
§159.207 (relating Continuances): Subsection (c)(3) referring to the requirements for a certificate of service and a certificate of conference under §159.205 of this title should correctly describe §159.205 as "relating to General Request for Relief" instead of "relating to Service of Documents on Parties."
SUBCHAPTER A. GENERAL
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The adopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, article 55 of the Texas Code of Criminal Procedure, and Chapters 522, 524, and 724 of the Texas Transportation Code.
§159.3.Definitions.
In this chapter, the following terms have the meaning indicated:
(1) Adult--An individual twenty-one years of age or older.
(2) ALR proceeding--A civil administrative proceeding under Texas Transportation Code, Chapters 522, 524 and/or 724 and this chapter relating to a driver's license disqualification, suspension, or denial resulting from an arrest for an offense relating to the operation of a motor vehicle or watercraft while intoxicated or under the influence of alcohol or controlled substances.
(3) Alcohol concentration--Defined in Texas Penal Code §49.01.
(4) Alcohol-related or drug-related enforcement contact--Defined in Texas Transportation Code §524.001.
(5) Certified breath test technical supervisor--A person who has been certified by DPS to maintain and direct the operation of a breath test instrument used to analyze breath specimens of persons suspected of driving while intoxicated.
(6) Contested case--A proceeding brought under Texas Transportation Code, Chapter 522, Subchapter I; Chapter 524, Subchapter D; or Chapter 724, Subchapter D.
(7) Defendant--One who holds a license as defined in Texas Transportation Code, Chapter 521, or an unlicensed driver, whose legal rights, duties, statutory entitlement, or privileges may be affected by the outcome of a contested case under this chapter.
(8) Defense counsel--An attorney who is authorized to participate in an ALR proceeding as a current, former, or prospective representative of a Defendant. Defense counsel does not include a non-attorney representative or an attorney who is not authorized to practice law in Texas and has not obtained permission to appear pursuant to 1 Texas Administrative Code §155.201(c).
(9) Denial--The non-issuance of a license or permit, and loss of the privilege to obtain a license or permit.
(10) DPS or the Department--The Texas Department of Public Safety.
(11) Driver--A person who drives or is in actual physical control of a motor vehicle.
(12) Efile Texas or eFile Texas--An electronic filing service provider approved by the Texas Supreme Court for use in electronically filing and serving documents in cases at SOAH and in judicial courts of record, available at http://www.efiletexas.gov. In these rules, the terms "eFile Texas," "electronic filing service provider," and "electronic filing manager" may be used interchangeably, although they may be assigned more specific meaning as appropriate in a given context.
(13) Electronic filing or filed electronically--The electronic transmission of documents filed in an ALR proceeding by uploading the documents to the case docket using eFile Texas or another electronic filing service provider approved by the Texas Supreme Court. In these rules, the term "electronic filing" may also include the submission of digital audio and video evidence in the manner specified on SOAH's website, but does not include the submission of filings by email, facsimile transmission, or unapproved file sharing platforms.
(14) Electronic Filing Service Provider or Electronic Filing Manager--An online web portal service offered by an independent third-party provider and approved by the Texas Supreme Court for use in electronically filing documents at SOAH and judicial courts of record, and that acts as the intermediary between the filer and eFileTexas.
(15) Electronic signature or signed electronically--An electronic version of a person's signature that is the legal equivalent of the person's handwritten signature. Electronic signature formats include:
(A) an "/s/" and the person's name typed in the space where the signature would otherwise appear;
(B) an electronic graphical image or scanned image of the signature; or
(C) a "digital signature" based on accepted public key infrastructure technology that guarantees the signer's identity and data integrity.
(16) Electronic service or served electronically--The electronic transmission and delivery of documents to a party or a party's authorized representative by means of an electronic filing service provider.
(17) Filed--The receipt and acceptance for filing by the SOAH Chief Clerk's office.
(18) Final decision--The decision issued by a judge who hears the contested case or another judge who reviewed the record in its entirety and who is authorized under appropriate law to issue final decisions in an ALR case.
(19) Intoxicated--Defined in Texas Penal Code §49.01(2).
(20) Minor--An individual under twenty-one years of age.
(21) Operate--To drive or be in actual physical control of a motor vehicle.
(22) Peace officer--A person elected, employed, or appointed as a peace officer under Texas Criminal Procedure Code §2.12 or other law. A peace officer may also be referred to as an arresting officer.
(23) Public place--Defined in Texas Penal Code §1.07, Chapter 1, and Texas Transportation Code §524.001, Chapter 524.
(24) Research Texas or re:SearchTX--An online repository of court case records in Texas, including records filed in ALR proceedings at SOAH, available at http://research.txcourts.gov.
(25) Test--The taking of blood or breath specimens as set out in Texas Transportation Code, Chapters 522, 524 and 724.
(26) Videoconference--Technology that provides for a conference of individuals in different locations, connected by electronic means through audio and video signals transmitted over the Internet, where all participants have an opportunity to communicate and participate in the conference.
(27) The following terms are defined in 1 Texas Administrative Code §155.5 (relating to Definitions): Administrative Law Judge or judge; APA; authorized representative; business day; confidential information; Chief Judge; discovery; evidence; exhibits; ex parte communication; party; person; personal identifying information; TRCP; and SOAH.
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 July 15, 2024.
TRD-202403109
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 936-6624
1 TAC §§159.51, 159.53, 159.55, 159.57, 159.59, 159.61
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The sdopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.
§159.51.Jurisdiction.
(a) Acquisition of jurisdiction. SOAH acquires jurisdiction over a case involving a particular hearing request on the date when sufficient information required by SOAH for the scheduling of an ALR proceeding is electronically transmitted by DPS to the SOAH Chief Clerk's Office.
(b) Effect of acquisition of jurisdiction by SOAH. Once SOAH acquires jurisdiction, SOAH shall promptly schedule the hearing in accordance with §159.201 of this title (relating to Scheduling and Notice of Hearing), and DPS and the defendant may initiate discovery or move for appropriate relief.
(c) Commencement of time periods. A period of time established by these rules shall not begin to run until the hearing is initially scheduled by SOAH.
(d) Cessation of Jurisdiction. SOAH jurisdiction over a case involving a particular hearing request ends upon the date the SOAH judge issues a final decision or order of dismissal, and if applicable, the deadline for any post-judgement motions has passed. Thereafter, jurisdiction may only be extended by order of the judge to:
(1) reinstate a case as provided by §159.203(c) of this title (relating to Involuntary Dismissal);
(2) vacate a default as provided by §159.213(f) of this title (relating to Failure to Attend Hearing and Default); or
(3) correct a decision as provided by §159.254 of this title (relating to Correction of Final Decision).
(e) After the cessation of jurisdiction, SOAH has concluded its involvement in the matter and has no continuing jurisdiction, including that SOAH has no authority to enforce or correct the Department's administration of a suspension, revocation, or reinstatement of a driver's license.
§159.53.Filing Documents.
(a) All notices, pleadings, motions, exhibits, and other documents for ALR proceedings must be filed in the manner specified by this section and in compliance with 1 Texas Administrative Code §§155.101-.103.
(b) Methods of Filing.
(1) Electronic Filing. Defense counsel and the Department shall electronically file all notices, pleadings, motions, exhibits, and other documents for an ALR proceeding at SOAH by use of eFile Texas or another electronic filing service provider approved by the Texas Supreme Court. Parties not represented by an attorney are strongly encouraged to electronically file documents but may use alternative methods of filing described in paragraph (2) of this subsection.
(A) Party Information. As soon as practicable after the initial docketing of an ALR proceeding at SOAH, each party or attorney of record shall ensure that the electronic filing manager contains complete and accurate party contact information known to the parties at the time, including the entry and verification of the mailing address, phone number, and email address of each party.
(B) Designation of Lead Counsel. If the party will be represented by an attorney, the lead counsel who is primarily responsible for the representation shall ensure that the information entered into the electronic filing manager includes the designation of lead counsel and lead counsel's state bar identification number.
(C) Service Contact Information. Each party, or lead counsel if the party will be represented by an attorney, shall ensure that the electronic filing manager contains complete and accurate service contact information known to the parties at the time of filing, including the entry and verification of the email address of each party or attorney who is required to be served.
(i) The service contact information maintained in the electronic filing manager must be sufficient to allow SOAH and the parties to electronically serve documents through eFile Texas.
(ii) SOAH may rely on the service contact information on file in eFile Texas for electronic delivery of orders, decisions, and other case-related communications from SOAH. SOAH is not required to deliver copies of orders, decisions, or other case related communications to persons who are not identified as a party, lead counsel, or service contact for the case within eFile Texas.
(iii) Failure to enter and verify service contact information within eFile Texas may result in a failure to comply with legal requirements for service of process.
(D) Document Titles and Use of Proper Filing Codes. All documents submitted for electronic filing must be properly titled or described in the electronic filing manager in a manner that permits SOAH and the parties to reasonably ascertain its contents, including through use of the correct filing code for the type of document.
(2) Filing by Self-represented Parties. Defendants without an attorney are strongly encouraged, but not required, to file electronically in the manner described in paragraph (1) of this subsection. Self-represented parties may use approved alternative methods of email, facsimile transmission, mail, or hand-delivery in the manner specified on SOAH's website.
(3) Alternative Filing Methods. For good cause, a judge may permit a party to file documents in paper or another acceptable form in a particular case.
(c) Requirements for All Filers.
(1) Address of Record Required. The defendant, the Department, and lead counsel for each party shall provide and maintain a current mailing address and email address on file with SOAH during the pendency of the proceeding. SOAH and the parties may maintain the parties' address information on file as part of the electronic record in eFile Texas.
(2) Pleadings and Motions. All pleadings, motions, or applications to the judge for an order, whether in the form of a motion, plea, or other form of request, must be filed with the SOAH Chief Clerk's Office in writing and signed by the party, unless presented orally during a hearing.
(3) Separate Submissions Required. Different document types cannot be combined into a single submission for filing. A party may not combine motions requesting different types of relief or action into a single filing but must submit each motion separately. If the document submitted for filing is an exhibit, it must be properly identified as an exhibit and submitted separately from motions, pleadings, or other filings, unless the exhibit is attached as a necessary supporting document to a pleading.
(4) Confidential Filing Required. To avoid the public disclosure or redaction of confidential information or personal identifying information necessary for the resolution of an ALR proceeding, all documents submitted for filing shall be designated as "confidential" at the time of submission. Failure to correctly submit documents as "confidential" may result in the record being publicly-accessible through the re:SearchTX court records portal.
(5) Exhibit Submission.
(A) Prefiling Required. All exhibits shall be prefiled at least two days before the hearing to avoid unnecessary surprise or delay. The judge, in his or her discretion, may grant or deny the presentation and admission of exhibits that were not timely prefiled in accordance with this section.
(B) Organization of Exhibits. Exhibits should be numbered sequentially, and multipage documents shall be paginated or Bates stamped. If multiple exhibits are combined into a single document for submission, then the document must be bookmarked to allow the judge and parties to locate each exhibit within the record.
(C) DPS Notice of Hearing. The Department must file a copy of the notice of hearing and any amended or corrected notices of hearing.
(D) Audio and Video Evidence. Evidentiary exhibits in the form of audio or video recordings shall be filed electronically in the manner specified on SOAH's website. Audiovisual evidence may only be submitted in a common, non-proprietary file format (e.g., MP4, WMV, AVI, MPEG) that can be reviewed by the judge and presented at the hearing without the need for special equipment or software.
(E) Supplemental Exhibits. Any exhibits admitted at a hearing that were not prefiled as required by this section, shall be filed electronically by the party who offered the exhibit by no later than the next business day after the conclusion of the hearing. The parties may only supplement the record with exhibits that were offered and admitted as evidence, or for which an offer of proof was presented at the hearing.
§159.55.Service of Documents on Parties.
(a) Service Required. On the same date a document is filed at SOAH, a copy shall also be sent to each party or the party's lead counsel if the party is represented by an attorney. Documents shall be served in the manner specified by this section and in compliance with 1 Texas Administrative Code §155.105.
(b) Service Contact Information. It is the responsibility of DPS and defense counsel, if the defendant is represented by counsel, to ensure that complete and accurate service contact information is entered in the electronic filing manager for each party or attorney who is required to be served. SOAH or the Department may assist an unrepresented defendant with entering the defendant's service contact information into eFile Texas.
(c) Method of Service.
(1) Electronic Service. A document filed electronically at SOAH must be served electronically through the use of eFile Texas or another electronic filing service provider approved by the Texas Supreme Court if the email address of the party or attorney to be served is on file with the record of the case. If the email address of the party to be served is not on file with the electronic filing manager, the document may be served on that party or attorney under paragraph (2) of this subsection.
(2) Alternative Service. If the email address of the party to be served is on not file with the record of the case, then the document may be served in person, by mail, by commercial delivery service, by fax, or by such other manner as directed by the judge. Self-represented parties may use approved alternative methods of email, facsimile transmission, mail, or hand-delivery to serve documents to the Department.
(3) Service of Audio and Video Exhibits. The requirement to serve audio and video exhibits to the other party may be satisfied if the audio or video recordings are filed electronically at SOAH in the manner specified under §159.53 (relating to Filing Documents), and an electronic copy or online access to such exhibits is provided to the party or attorney to be served.
(d) Certificate of Service. A person filing a document shall include a certificate of service that certifies compliance with this section and 1 Texas Administrative Code §155.105. A certificate of service shall be sufficient if it substantially complies with the following example: "Certificate of Service: I certify that on {date} , a true and correct copy of this {name of document} has been sent to {name of opposing party or authorized representative for the opposing party} by {specify method of delivery, e.g., electronic filing, regular mail, hand-delivery, fax, certified mail.} {Signature}"
(e) Proof of Service. Proof of service may be established by evidence that the document required to be served was electronically served to the party, or if party has legal representation, to party's counsel, at email address of record on file in the electronic filing manager. Alternatively, proof of service may be established by evidence that the document was served in accordance with subparagraph (c)(2) of this subsection to the last known address, as reflected on defendant's notice of suspension, request for hearing, driving record or similar documentation.
(f) Delivery of SOAH Orders. All orders issued by the SOAH judge are considered received by the party upon SOAH's electronic transmission of the order to eFile Texas, if the recipient's email address is on file as part of the electronic record in eFile Texas.
§159.61.Electronic Case Records Access.
(a) Electronic Document Repository. The case records for ALR proceedings at SOAH are available online through re:SearchTX, an electronic court records system approved by the Texas Supreme Court. This system serves as an official repository for SOAH case records.
(b) Accuracy and Completeness of Records. The electronic records available through re:SearchTX are automatically updated with the filing or issuance of any new documents in the ALR proceeding through eFile Texas. Case records available through re:SearchTX may be relied upon in the same manner as an original or certified copy. The repository includes file stamped copies of all current case records, but does not necessarily include:
(1) The electronic recording of the hearing;
(2) Evidentiary exhibits in the form of audio or video recordings; and
(3) The written transcript of the hearing, if any.
(c) Access to Records. Users of re:SearchTX must establish an eFile Texas account or a re:SearchTX account. Access to ALR case records is determined by the security role assigned to the individual within eFile Texas for the particular case. To access ALR case records at SOAH through re:SearchTX, users must be properly designated within the eFile Texas system as one of the following:
(1) A defendant who has used eFile Texas to file at least one document in the case and is listed as a party to the case;
(2) Lead counsel for the case, with a Texas state bar number that is electronically linked with the case in eFile Texas; or
(3) A member of lead counsel's eFile Texas firm profile, where lead counsel's Texas state bar number is electronically linked with the case in eFile Texas.
(d) Attorney use of re:SearchTX. Attorneys shall establish access to re:SearchTX, and are expected to obtain and maintain a sufficient level of technical competency to monitor case activity and obtain their own case records through the use of eFileTexas and re:SearchTX for the ALR cases in which they are authorized to appear.
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 July 15, 2024.
TRD-202403110
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 936-6624
1 TAC §§159.101, 159.103, 159.104
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The adopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.
§159.103.Issuance and Service of Subpoenas.
(a) A party that issues or is granted a subpoena duces tecum shall be responsible for having the subpoena served, and may be required to advance the reasonable costs of reproducing any documents or tangible things requested.
(b) A subpoena must be served at least five days before the hearing, and must include a copy of the notice of hearing or other information that is sufficient to notify the witness of how to appear, including instructions and information for joining a videoconference or telephone conference call if applicable.
(c) Method of Service. A subpoena must be served by delivering a copy to the witness. The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older. A subpoena is served by:
(1) hand-delivering a copy of the subpoena to the witness in-person;
(2) electronically transmitting a copy of the subpoena to the last known electronic address of the witness, with acknowledgment of receipt; or
(3) mailing a copy of the subpoena by certified mail with return receipt requested, or delivering a copy of the subpoena by express delivery service with signature required, to the last known address of the witness unless:
(A) the applicant for the subpoena requests in writing that the subpoena not be served by certified mail or express delivery; or
(B) there is insufficient time to ensure delivery of the subpoena to the witness five days before the hearing for which the witness is being subpoenaed.
(4) If the witness is a party and is represented by an attorney of record in the proceeding, then the subpoena may be served to the witness's attorney by a method described in this section.
(5) If the witness is a peace officer, then the subpoena may be served by an accepted method of alternative service established by a peace officer's law enforcement agency.
(d) After a subpoena is served upon a witness, the subpoena and the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. The return must show:
(1) the date, time, and manner of service, if served by hand delivery;
(2) the acknowledgment of receipt, if served by email;
(3) the return receipt if served by certified mail;
(4) the signed proof of delivery, if served by express delivery service; or
(5) other confirmation as appropriate, if served to a party's attorney or a peace officer's law enforcement agency.
(e) A subpoenaed witness whose assigned work location or residence is more than 150 miles from the designated hearing location is entitled to appear by telephone or videoconference.
(f) A party seeking the admission of subpoenaed documents or audiovisual evidence at the hearing must prefile the exhibits in advance of the hearing in the manner specified by §159.53 of this chapter.
(g) Service upon opposing party.
(1) A party that issues a subpoena must serve the opposing party with a copy of the subpoena on the same date it is issued.
(2) A party that requests a subpoena from a SOAH judge must serve the opposing party with a copy of the request at the time it is filed with SOAH.
(3) When a subpoena has been served, and not less than three days prior to the hearing, a party that has served a subpoena must provide the opposing party with a copy of the return of service.
(4) If a party fails to serve a copy of a subpoena or a subpoena return on the opposing party, the subpoena may be rendered unenforceable by the judge.
(h) Continuing effect. A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or for protective order. If a hearing is rescheduled and a subpoena is extended, and unless the judge specifically directs otherwise, the party that requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date and serve a copy of the notice on the opposing party.
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 July 15, 2024.
TRD-202403111
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 936-6624
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The adopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.
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 July 15, 2024.
TRD-202403112
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: March 24, 2024
For further information, please call: (512) 936-6624
1 TAC §§159.201, 159.203, 159.207, 159.209 - 159.211, 159.213
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The adopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.
§159.207.Continuances.
(a) A request for continuance will be considered in accordance with the provisions of Texas Transportation Code § 524.032(b) and (c) (relating to rescheduling a hearing upon a defendant's request), § 524.039 (relating to appearance of technicians), and Texas Transportation Code § 724.041(g).
(b) A judge may grant a continuance if the motion is supported by good cause, consent of the parties, or operation of law.
(c) With the exception of a hearing that is rescheduled in accordance with Texas Transportation Code § 524.032(b), the granting of continuances shall be in the sound discretion of the judge, provided, however, that the judge shall expedite the hearings whenever possible. A party requesting a continuance may file a written motion or present the motion orally at the hearing. The motion shall include:
(1) the specific reason for the continuance;
(2) a statement of the number of motions for continuance previously filed in the case by each party; and
(3) for written motions, a certificate of service and a certificate of conference as required by §159.205 of this title (relating to General Request for Relief). Failure to include a certificate of service and a certificate of conference when filing a motion for continuance may result in denial of the continuance request or subsequent continuance requests in the same case.
(d) With the exception of a hearing that is rescheduled in accordance with Texas Transportation Code § 524.032(b), no party is excused from appearing at a hearing until notified by SOAH that a motion for continuance has been granted.
(e) Responses to a motion for continuance, if any, should be promptly submitted in writing, except a response to a motion for continuance made on the date of the hearing may be presented orally at the hearing.
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 July 15, 2024.
TRD-202403113
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 936-6624
1 TAC §§159.253 - 159.255, 159.257
Statutory Authority. The rule amendments are adopted under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.
Cross Reference to Statute. The adopted rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.
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 July 15, 2024.
TRD-202403114
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 4, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 936-6624
The State Office of Administrative Hearings (SOAH) adopts the repeal of Title I, Chapter 167 in its entirety concerning the Dispute Resolution Process Applicable to Certain Consumer Health Benefits Disputes. This includes the repeal of Subchapter A, General, §167.1 and §167.3; Subchapter B, Initiating Appointment of a Mediator, §167.51; Subchapter C, Mediator, §§167.101, 167.103, 167.105, 167.107, and 167.109; Subchapter D, Post Mediation Reports, §167.151; and Subchapter E, Special Judges, §§167.201, 167.203, 167.205, 167.207, and 167.209.
The repeal is adopted without changes to the proposed text as published in the May 24, 2024, issue of the Texas Register (49 TexReg 3667), and the repeals will not be republished. The public comment period closed on June 24, 2024, and SOAH did not receive any comments.
Reasoned Justification. The repeal of Chapter 167 in its entirety is necessary to implement Senate Bill 1264, 86th R.S. (2019), which amended chapter 1467 of the Insurance Code to establish a revised out-of-network claim dispute resolution program at the Texas Department of Insurance. Section 3.03 of S.B. 1264 repealed relevant sections of Insurance Code, Chapter 1467 pertaining to SOAH's balance billing mediation program. Section 5.01 of S.B. 1264 included a transition provision stating that "The changes in law made by this Act apply only to a health care or medical service or supply provided on or after January 1, 2020. A health care or medical service or supply provided before January 1, 2020, is governed by the law in effect immediately before the effective date of this Act, and that law is continued in effect for that purpose." This transition provision required SOAH to continue to administer balance billing mediations for both existing and new disputes regarding pre-2020 out-of-network health benefit claims that were eligible under the repealed Insurance Code provisions and SOAH rules.
On or about December 18, 2023, SOAH referred all of the remaining pre-2020 health benefit claims dispute cases that could not be successfully resolved by mediation to a special judge for trial in accordance with the requirements of the former Insurance Code §1467.057. Now that SOAH's administrative duties under the former law have been concluded, the repeal of SOAH's rules in Title 1, Chapter 167 is necessary to fully-implement S.B. 1264.
SUBCHAPTER A. GENERAL
Statutory Authority. The repeal is adopted pursuant to Texas Government Code, Chapter 2003, §2003.050, which authorizes SOAH to establish procedural rules for hearings and alternative dispute resolution proceedings conducted by SOAH.
Cross Reference to Statute. The repeal affects 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.
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 July 17, 2024.
TRD-202403166
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 6, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 475-4993
Statutory Authority. The repeal is adopted pursuant to Texas Government Code, Chapter 2003, §2003.050, which authorizes SOAH to establish procedural rules for hearings and alternative dispute resolution proceedings conducted by SOAH.
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 July 17, 2024.
TRD-202403167
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 6, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 475-4993
1 TAC §§167.101, 167.103, 167.105, 167.107, 167.109
Statutory Authority. The repeal is adopted pursuant to Texas Government Code, Chapter 2003, §2003.050, which authorizes SOAH to establish procedural rules for hearings and alternative dispute resolution proceedings conducted by SOAH.
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 July 17, 2024.
TRD-202403168
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 6, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 475-4993
Statutory Authority. The repeal is adopted pursuant to Texas Government Code, Chapter 2003, §2003.050, which authorizes SOAH to establish procedural rules for hearings and alternative dispute resolution proceedings conducted by SOAH.
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 July 17, 2024.
TRD-202403169
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 6, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 475-4993
1 TAC §§167.201, 167.203, 167.205, 167.207, 167.209
Statutory Authority. The repeal is adopted pursuant to Texas Government Code, Chapter 2003, §2003.050, which authorizes SOAH to establish procedural rules for hearings and alternative dispute resolution proceedings conducted by SOAH.
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 July 17, 2024.
TRD-202403170
Shane Linkous
General Counsel
State Office of Administrative Hearings
Effective date: August 6, 2024
Proposal publication date: May 24, 2024
For further information, please call: (512) 475-4993
CHAPTER 371. MEDICAID AND OTHER HEALTH AND HUMAN SERVICES FRAUD AND ABUSE PROGRAM INTEGRITY
SUBCHAPTER G. ADMINISTRATIVE ACTIONS AND SANCTIONS
DIVISION 3. ADMINISTRATIVE ACTIONS AND SANCTIONS
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), on behalf of the Office of Inspector General (OIG), adopts in the Texas Administrative Code (TAC), Title 1, Part 15, Chapter 371, Subchapter G, Division 3, new §371.1723, concerning Recoupment of Overpayments Identified by Retrospective Payment Review.
New §371.1723 is adopted without changes to the proposed text as published in the February 16, 2024, issue of the Texas Register (49 TexReg 827). This rule will not be republished.
BACKGROUND AND JUSTIFICATION
New §371.1723 describes the OIG's retrospective payment review procedures related to records requests, review processes, notices, and due process.
Texas Government Code §531.102 authorizes OIG to conduct reviews related to the provision and delivery of all health and human services in Texas to identify fraud, waste, or abuse.
COMMENTS
The 31-day comment period ended March 18, 2024.
During this period, OIG received several comments regarding the proposed rule from three commenters: MD Anderson, Texas Medical Association, and Teaching Hospitals of Texas. A summary of comments relating to §371.1723 and OIG's responses follow.
Comment: One commenter requested that the statutory or regulatory basis for OIG retrospective payment reviews be included in the rule text.
Response: OIG declines to revise the rule in response to this comment. The Statutory Authority section of this Adoption Preamble describes the statutory authority and HHSC rulemaking authority for §371.1723. Additionally, Title 42 Code of Federal Regulations §456.3 requires the Medicaid state agency to implement a statewide surveillance and utilization control program that safeguards against unnecessary or inappropriate use of Medicaid services and against excess payments.
Comment: Two commenters requested that the rule should allow more time to provide records in response to a records request.
Response: OIG declines to revise the rule in response to these comments. The rule requires a provider to provide records within the time period requested by OIG or ten calendar days from the date of receipt of the request, whichever is later. An OIG record request may provide for a due date beyond ten days, but not less than ten days. OIG retrospective payment reviews typically involve a request for fewer records than an audit or investigation. Additionally, OIG is receptive to requests for extension when an extension is warranted.
Comment: Two commenters asked whether records or notarized record affidavits may be submitted electronically and by paper to OIG.
Response: At this time, OIG does not intend to request a business records affidavit for retrospective payment (RP) reviews. Additionally, OIG's records request letter for an RP review will request submission of records by uploading to Microsoft SharePoint. The OIG records request letter will provide instructions for uploading records to SharePoint. If a provider's circumstances justify an exception to electronic submission, OIG would allow the provider to submit paper records. No changes were made to the rule in response to this comment.
Comment: A commenter expressed concern that the rule requirements for a business records affidavit could place persons in a compliance catch-22 situation if the requested document did not qualify as a business record under the Texas Rules of Evidence. The commenter was also concerned about requiring a person to sign and notarize a document that was prepared by OIG and not the person's legal counsel. Additionally, the commenter recommended that the requirements in subsection (b) relating to the records affidavit be removed.
Response: OIG declines to revise the rule in response to this comment. At this time, OIG does not intend to request a business records affidavit for retrospective payment reviews. If the "catch-22" scenario described in the comment occurred, OIG would consider the person's objection that the requested record in the person's possession was not, in fact, a business record under the Texas Rules of Evidence Rule. The OIG-approved business records affidavit was prepared by OIG and based on the "Form of Affidavit" provided in the Texas Rules of Evidence Rule. If the person who received the OIG records request preferred to have the person's attorney prepare the affidavit, OIG would assess whether the affidavit met the requirements specified in the Texas Rules of Evidence.
Comment: Two commenters asked about findings, scope, or circumstances within and under which OIG would conduct retrospective payment (RP) reviews. One of the two commenters asked which persons are subject to RP reviews.
Response: The OIG Acute Care Services and Targeted Queries units conduct RP reviews related to the provision and delivery of all health and human services in Texas. RP reviews may be conducted on any "person," as that term is defined in §371.1. Additionally, RP reviews have a dollar limit for overpayment recoveries. No changes were made to the rule in response to this comment.
Comment: One commenter stated that OIG overpayment recoveries resulting from retrospective payment (RP) reviews must be based on contract language between the managed care organizations and providers.
Response: OIG disagrees and declines to revise the rule in response to this comment. OIG may recover overpayments identified in an RP review. "Overpayment" is defined in §371.1.
Comment: Two commenters requested that OIG establish a mechanism or registration process to eliminate electronic notices sent to incorrect individuals at an organization or to a single individual. One of the two commenters requested that notification be sent to a group mailbox. A third commenter recommended that the rule be amended so that email notices must be consented to by the recipient and that the rule be revised to include, by reference, OIG's other methods of service in §371.1609.
Response: OIG declines to revise the rule in response to these comments. OIG will send RP review notices using RightFax, a digital fax solution. Electronic mail, including secure or encrypted email for confidential or HIPAA information, is also an appropriate and reliable alternative method to send notices. Should OIG begin using email to send RP review notices, OIG would likely use either the provider's email address on file with HHSC, which providers are required to submit when they enroll with Medicaid, or an alternate email address designated by the provider.
Comment: One commenter stated that neither level of appeal described in the proposed rule contains any language indicating that the person requesting the appeal would be allowed to present additional evidence, witnesses, or other arguments regarding the overpayments at issue. The commenter also expressed concerns that the due process in the proposed rule does not include a contested administrative hearing and opportunity for judicial review required under Texas Government Code §531.1201. The commenter stated that the rule does not indicate that the findings of the retrospective payment (RP) review would fall outside of the Texas Supreme Court decision in Philips v. McNeill (2021). The commenter recommended that the rule be revised to align with the due process requirements in Texas Government Code Chapter 531.
Response: OIG declines to revise the rule in response to this comment. Section 371.1723(c)(1)(D) permits a person subject to an RP review to produce records and documentation to address any finding found during the review by the date specified by the OIG. At this time, OIG intends that subsection (c)(1)(D) would allow a person requesting a first level appeal to produce records and documentation regarding the overpayments at issue.
Additionally, OIG believes the Texas Supreme Court decision in Phillips v. McNeill is limited to the particular facts of that case.
RP reviews are usually less complex and identify smaller overpayment amounts than OIG investigations, for example. Additionally, §371.1723(c)(1)(C) limits the overpayment recovery amount for an RP review. For these reasons, the adopted two-level appeal process is appropriate for RP reviews.
Comment: Two commenters requested that the rule be changed to allow 45 calendar days after receipt of a final notice to review, assess, and complete next level appeal requests.
Response: OIG declines to revise the rule in response to these comments. According to §371.1723(e)(4), the deadline to request a first or second level appeal is specified in the notice of review results or first level appeal results. OIG believes 30 calendar days is sufficient time to request a first-level or second-level appeal for an RP review case.
Comment: Two commenters requested that the rule be modified to allow 90 days after receipt of a final notice to pay the overpayment or request and execute a final payment plan.
Response: OIG declines to revise the rule in response to these comments. OIG believes 60 days is sufficient time to pay the overpayment or execute a final payment plan agreement.
STATUTORY AUTHORITY
The new rule is adopted under Texas Government Code §531.0055, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of services by the health and human services system; Texas Government Code §531.102(a), which grants the HHSC OIG the responsibility for the prevention, detection, audit, inspection, review, and investigation of fraud, waste, and abuse in the provision and delivery of all health and human services in the state, including services through any state-administered health or human services program that is wholly or partly federally funded, and which provides the HHSC OIG with the authority to obtain any information or technology necessary to enable it to meet its responsibilities; Texas Government Code §531.102(a-2), which requires the Executive Commissioner of HHSC to work in consultation with the Office of the Inspector General to adopt rules necessary to implement a power or duty of the office; Texas Government Code §531.102(x), which requires the Executive Commissioner of HHSC, in consultation with the Office of Inspector General, to adopt rules establishing criteria for determining enforcement and punitive actions with regard to a provider who has violated state law, program rules, or the provider's Medicaid provider agreement; Texas Government Code §531.033, which requires the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties under Chapter 531; Texas Human Resources Code §32.021, which provides HHSC with the authority to administer the federal medical assistance (Medicaid) program in Texas and adopt rules necessary for the proper and efficient operation of the Medicaid program; Texas Government Code §531.021(a), which provides HHSC with the authority to administer Medicaid funds; Texas Government Code §531.1131(e), which requires the Executive Commissioner of HHSC to adopt rules necessary to implement §531.1131, including rules establishing due process procedures that must be followed by managed care organizations when engaging in payment recovery efforts as provided by §531.1131; and Texas Human Resources Code §32.039, which provides authority to assess administrative penalties and damages and provides due process for persons potentially subject to damages and penalties.
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 July 18, 2024.
TRD-202403192
Karen Ray
Chief Counsel
Texas Health and Human Services Commission
Effective date: August 7, 2024
Proposal publication date: February 16, 2024
For further information, please call: (512) 221-7320