Proposed Rules Title 1

TITLE 1. ADMINISTRATION

PART 3. OFFICE OF THE ATTORNEY GENERAL

CHAPTER 56. DISTRICT AND COUNTY ATTORNEY REPORTING REQUIREMENTS

The Office of the Attorney General (OAG) proposes new Chapter 56 in Title 1 of the Texas Administrative Code (TAC), relating to reporting requirements for District Attorneys and County Attorneys presiding in a district or county with a population of 250,000 or more persons. Proposed new Chapter 56 consists of §§56.1 - 56.9. Proposed new Chapter 56 is necessary to implement Government Code §41.006.

EXPLANATION AND JUSTIFICATION OF RULES

Texas Government Code §41.006 states that district and county attorneys shall report to the OAG the information from their districts and counties that the OAG desires relating to criminal matters and interests of the state. Section 41.006 also states that the reports must be submitted to the OAG at the times and in the form the OAG directs. Proposed new Chapter 56 is necessary to implement §41.006 because it prescribes the time, form, and content of reports the OAG requires from certain district and county attorneys' offices.

SECTION-BY-SECTION SUMMARY

Proposed new §56.1 specifies that District Attorneys and County Attorneys presiding in a district or county with a population of 250,000 or more are required to submit quarterly and annual reports relating to criminal matters and the interests of the state to the OAG in a manner prescribed by the OAG.

Proposed new §56.2(1) defines the term "case file" as all documents, notes, memoranda, and communications, whether handwritten or typed. The term includes, but is not limited to emails, instant messages, text messages, direct messages, social media messages, and handwritten notes. The term includes all drafts and final copies produced within or received by the reporting entity's office, including work product and otherwise privileged and confidential matters.

Proposed new §56.2(2) defines the term "correspondence" as any official or unofficial emails, letters, memoranda, instant message, text message, direct message, social media message, or notes received or issued by the reporting entity's office.

Proposed new §56.2(3) defines the term "fiscal year" as the twelve-month period between September 1 and August 31.

Proposed new §56.2(4) defines the term "reporting entity" as any office of a District Attorney or County Attorney serving a population of 250,000 or more.

Proposed new §56.2(5) defines the term "violent crime" to include, but is not limited to, capital murder, murder, or other felony homicide, aggravated assault, sexual assault of an adult or child, indecency with a child, family violence assault, robbery or aggravated robbery, burglary, theft, and automobile theft. The term also includes any attempt to commit such crimes.

Proposed new §56.3(a) specifies the content of the reports that must be provided to OAG on a quarterly each fiscal year.

Proposed new §56.3(b) specifies that the reporting requirement applies to all events occurring after the rule's final promulgation in the Texas Register. Proposed new § 56.3(b) also specifies that the reporting requirement applies to all events that occurred between January 1, 2023, and the effective date of the rule unless (1) the reporting entity obtains a waiver; (2) the reporting entity files a sworn affidavit that the information was the exclusive product of a previous District Attorney or County Attorney and is not reflective of the reporting entity's operations due to a formal change in policy, which must be described in detail; or (3) the reporting entity files a sworn affidavit that the information cannot be produced because it was destroyed or discarded pursuant to a legitimate document retention policy that existed prior to the effective date of this rule.

Proposed new §56.3(c) specifies that all information for which the relevant reporting event occurs after the effective date of the rule is due within 30 days of the beginning of each new fiscal quarter for all reportable events that occurred in the prior fiscal quarter. Proposed new §56.3(c) also specifies that all information for which the relevant reporting event occurs between January 1, 2021, and the date this final rule is promulgated in the Texas Register is due within 60 days of the effective date of this rule.

Proposed new §56.4 specifies the content of reports that must be provided to OAG on an annual basis. The information must be submitted to OAG on the last business day of January each year for the prior 12 months.

Proposed new §56.5 specifies that each District Attorney and each County Attorney that is subject to the reporting requirements must implement a reasonable document retention policy in order to preserve all document subject to the reporting requirements. The policies must, at a minimum, preserve documents for two years after the time when they are due to be reported.

Proposed new §56.6 specifies that if OAG believes a reporting entity has failed to comply with Chapter 56, the OAG may send a notice to the reporting entity notifying the reporting entity of its failure to comply. A reporting entity has 15 days after receipt of the notice to remedy its noncompliance.

Proposed new §56.7 specifies that if a District Attorney or County Attorney intentionally violates proposed new Chapter 56, the Attorney General can (1) file a petition for removal of the District Attorney or County Attorney under Local Government Code 87.015; (2) file a petition for quo warranto under Civil Practice and Remedies Code 66.002; or (3) file a petition for an injunction in a civil proceeding ordering the District Attorney or County Attorney to comply.

Proposed new §56.8 specifies the makeup and responsibilities of the Oversight Advisory Committee as it relates to proposed new Chapter 56.

Proposed new §56.9 specifies that the application of every provision in the proposed rule is severable from the rest, if a court finds a provision to be invalid or unconstitutional.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTS

Josh Reno, the Deputy Attorney General for Criminal Justice, has determined that for the first five-year period the proposed rules are in effect, enforcing or administering the rules does not have foreseeable implications relating to cost or revenues of state government. There may be minimal costs to local governments for gathering and submitting quarterly and yearly reports to OAG, however, the gathering and submitting of the required reports can likely be absorbed into reporting entities' ongoing operations with minimal, if any, fiscal impact.

District Attorneys and County Attorneys must report "information from their districts and counties that the attorney general desires relating to criminal matters and the interests of the state." Texas Government Code § 41.006. The proposed rules prescribe the information that the attorney general so desires relating to criminal matters. Accordingly, the proposed rules do not have an impact beyond that of the statute.

PUBLIC BENEFIT AND COST NOTE

Mr. Reno has determined that for the first five-year period the proposed rules are in effect, the public will benefit through clear procedures and standards for Texas District Attorneys and County Attorneys to submit quarterly and annual reports to the Attorney General's Oversight Advisory Committee. The public can confirm compliance with these standards.

Mr. Reno has also determined that for each year of the first five-year period the proposed rules are in effect, there are minimal, if any, anticipated economic costs to entities that are required to comply with the proposed rules.

IMPACT ON LOCAL EMPLOYMENT OR ECONOMY

Mr. Reno has determined that the proposed rules do not have an impact on local employment or economies because the proposed rules only impact governmental bodies. Therefore, no local employment or economy impact statement is required under Texas Government Code §2001.022.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES

Mr. Reno has determined that for each year of the first five-year period the proposed rules are in effect, there will be no foreseeable adverse fiscal impact on small business, micro-businesses, or rural communities as a result of the proposed rules.

Since the proposed rules will have no adverse economic effect on small businesses, micro-businesses, or rural communities, preparation of an Economic Impact Statement and a Regulatory Flexibility Analysis, as detailed under Texas Government Code §2006.002, is not required.

TAKINGS IMPACT ASSESSMENT

The OAG has determined that no private real property interests are affected by the proposed rules, and the proposed rules do not restrict, limit, or impose a burden on an owner's rights to the owner's private real property that would otherwise exist in the absence of government action. As a result, the proposed rules do not constitute a taking or require a takings impact assessment under Texas Government Code §2007.043.

GOVERNMENT GROWTH IMPACT STATEMENT

In compliance with Texas Government Code §2001.0221, the agency has prepared a government growth impact statement. During the first five years the proposed rules are in effect, the proposed rules:

- will not create a government program;

- will not require the creation or elimination of employee positions;

- will not require an increase or decrease in future legislative appropriations to the agency;

- will not lead to an increase or decrease in fees paid to a state agency;

- will create a new regulation;

- will not repeal an existing regulation;

- will result in a decrease in the number of individuals subject to the rule; and

- will not positively or adversely affect the state's economy.

REQUEST FOR PUBLIC COMMENT

Written comments on the proposed rules may be submitted electronically to the OAG's Open Records Division by email to OAGRuleCommentsCh56@oag.texas.gov, or by mail to Josh Reno, Attn: Rule Comments, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548. Comments will be accepted for 30 days following publication in the Texas Register.

To request a public hearing on the proposal, submit a request before the end of the comment period by email to OAGRuleCommentsCh56@oag.texas.gov, or by mail to Josh Reno, Attn Rule Comments, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548.

STATUTORY AUTHORITY

New 1 TAC Chapter 56 is proposed pursuant to Texas Government Code §41.006.

CROSS-REFERENCE TO STATUTE. This regulation clarifies Texas Government Code §41.006. No other rule, regulation, or law is affected by this proposed rule.

§56.1.General Reporting Requirements.

District Attorneys and County Attorneys presiding in a district or county with a population of 250,000 or more persons shall submit quarterly and annual reports relating to criminal matters and the interest of the state to the Office of the Attorney (OAG) in a manner prescribed by the OAG and as set forth in this chapter. If needed the OAG will post reporting instructions, guidance, and examples on the OAG's website for reference.

§56.2.Definitions.

The following words and terms, when used in this subchapter, shall have the following meanings:

(1) "Case file" means all documents, notes, memoranda, and communications, whether handwritten, typed, electric, or otherwise, including but not limited to all emails, instant messages, text messages, direct messages, social media messages, handwritten notes, and typed or handwritten memoranda, whether a draft or final copy, produced within or received by the reporting entity's office, including work product and otherwise privileged and confidential matters.

(2) "Correspondence" means any email, letter, memorandum, instant message, text message, direct message, social media message, note, or otherwise, received or issued by an employee of the reporting entity.

(3) "Fiscal Year" means the period of September 1 through August 30, of each calendar year.

(4) "Reporting entity" means the office of a District Attorney or County Attorney serving a population of 250,000 or more persons.

(5) "Violent crime" includes but is not limited to capital murder, murder, other felony homicides, aggravated assault, sexual assault of an adult, indecency with or sexual assault of a child, family violence assault, aggravated robbery or robbery, burglary, theft, automobile theft, any crime listed in Code of Criminal Procedure § 17.50(3), and any attempt to commit such crimes.

§56.3.Quarterly Reporting Requirements.

(a) Content of reports. Reporting entities shall provide the following information to the OAG quarterly each Fiscal Year.

(1) The case file regarding any decision to indict a peace officer;

(2) The case file regarding any decision to indict a poll watcher;

(3) The case file in any prosecution where a defendant has raised a justification under Chapter 9 of the Penal Code, Subchapters C and/or D;

(4) The case file for any case where a recommendation is made to a judicial body that a person subject to a final judgment of conviction be released from prison before the expiration of their sentence;

(5) The case file regarding any prosecution for which the Texas Governor has announced that The Office of the Texas Governor is considering a pardon;

(6) The case file regarding any prosecution for which the Attorney General, through the OAG's Oversight Advisory Committee, has concluded there are substantial doubts whether probable cause exists to support a prosecution;

(7) All correspondence regarding any decision not to indict a person who was arrested by the Texas Department of Public Safety for a violent crime;

(8) All correspondence regarding any decision not to indict a person who was arrested for committing a violent crime;

(9) All correspondence and other documentation describing and analyzing a reporting entity's policy not to indict a category or sub-category of criminal offenses;

(10) All correspondence with any employee of a federal agency regarding a decision whether to indict an individual;

(11) All correspondence with any non-profit organization regarding a decision whether to indict an individual; and

(12) Correspondence or other records memorializing assistant district attorney or assistant county attorney resignations or terminations and the reasons therefore where a complaint was made, formally or informally, by the assistant district attorney or assistant county attorney.

(b) Applicability and Reporting Requirements

(1) A reporting entity must submit all information in subsection (a) of this section for which the relevant reporting event occurs.

(2) A reporting entity must submit all information in subsection (a) of this section for a which a reporting event occurred between January 1, 2021, and the effective date of this rule, unless:

(A) The reporting entity obtains a written exception, in whole or in part, from the OAG;

(B) The reporting entity provides a sworn affidavit that states the information:

(i) Was the exclusive product of a previous District or County Attorney; and

(ii) Is not reflective of the reporting entity's current operations due to a formal change in the office's policies, and the formal change is described in detail and transmitted to the Oversight Advisory Committee; or

(C) The reporting entity provides a sworn affidavit that states the information cannot be produced because it was destroyed or otherwise discarded pursuant to a bona fide document retention policy that existed prior to the effective date of this rule and that is described in detail and transmitted to the Oversight Advisory Committee.

(1) Reports for information under subsection (b)(1) of this section are due within 30 days of the beginning of each new fiscal quarter for all reporting events that occurred in the prior fiscal quarter.

(2) Reporting of information under subsection (b)(2) of this section is due within 60 days of the effective date of this rule.

§56.4.Annual Reports.

Reporting entities must submit electronic copies of the following information for the prior 12 months in a form prescribed by the OAG no later than the last business day of January of each year:

(1) All policies, rules, and orders, including internal operating procedures and public policy documents, that were modified during the prior 12 months;

(2) A list of all local, county, state, and federal ordinances, statutes, laws, and rules for which the reporting entity files reports, whether that requirement is regular or arises upon the occurrence of an event;

(3) A report providing individual expenditures and purchases made based on funds or assets received through civil asset forfeiture;

(4) A report providing all information regarding funds accepted by the commissioners court of their county pursuant to Texas Government Code §41.108 that were passed on to the reporting entity. The reporting entity must detail how much of the funds were passed on to the reporting entity and provide a detailed accounting of how the reporting entity disposed of any funds received; and

(5) A report providing all information regarding funds accepted by the commissioners court of their county pursuant to Tex. Gov. Code Sec. 41.108 that were not passed on to the reporting entity, but were used to benefit the reporting entity, its personnel, or its operations. The report must include any correspondence regarding accepted funds, as well as a detailed account of how the funds were used to benefit the reporting entity, its personnel, or its operations.

§56.5.Document Retention.

Reporting entities must implement document retention policies reasonably designed to preserve all documents which are, or may be, subject to these reporting requirements. Reasonable document retention policies must at a minimum preserve documents until two years after the time when they are due to be reported.

§56.6.Overdue Reports.

If an entity fails to comply with this chapter, in whole or in part, the OAG may send notice to the reporting entity identifying the reporting entity of its failure to comply. A reporting entity must remedy the identified reporting failure within 15 days after receipt of notice.

§56.7.Compliance.

If a reporting entity intentionally violates §56.5 or §56.6 of this chapter:

(1) The OAG may file a petition for removal of the District or County Attorney under Local Gov't Code 87.015 for official misconduct or incompetency;

(2) The OAG may file a petition for quo warranto under Civil Practice and Remedies Code 66.002 for the performance of an act that by law causes the forfeiture of the County or District Attorney's office; or

(3) The OAG may initiate a civil proceeding for an injunction to order the County or District Attorney to comply with this chapter.

§56.8.Oversight Advisory Committee.

(a) The Attorney General may establish an Oversight Advisory Committee composed of three members of the Office of the Attorney General designated by the Attorney General.

(b) The Oversight Advisory Committee may publish on the OAG's website any necessary forms or coordinating instructions for submitting reports.

(1) In the absence of a form or coordinating instruction, District and County Attorneys are to use their discretion with respect to reporting format.

(2) Reporting entities must submit required case files and correspondence to the OAG via email if electronic service is possible, otherwise by certified mail.

(c) The Oversight Advisory Committee may issue clarifying instructions to reporting entities about the scope of their obligations under these rules.

(d) The Oversight Advisory Committee may issue notifications of Overdue Reports under §56.6 of this Chapter.

§56.9.Severability.

(a) If any application of any provision of this rule is found by a court to be invalid or unconstitutional, the remaining applications of that provision shall be severed and be unaffected. All constitutionally valid applications of this rule shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the Attorney General's intent and priority that the valid applications be allowed to stand alone.

(b) If any court declares or finds a provision of this rule facially unconstitutional, when discrete applications of that provision can be enforced without violating the United States Constitution and Texas Constitution, those applications shall be severed from all remaining applications of the provision, and the provision shall be interpreted as if the Attorney General had enacted a provision limited to circumstances for which the provision's application will not violate the United States Constitution or Texas Constitution.

(c) The Attorney General further declares that he would have promulgated this rule, and each provision and all constitutional applications of this rule, irrespective of the fact that any provision or application of this rule were to be declared unconstitutional.

(d) If any provision of this rule is found by any court to be unconstitutionally vague, the applications of that provision that do not present constitutional vagueness problems shall be severed and remain in force.

(e) No court should decline to enforce the severability requirements of this rule on the ground that severance would rewrite the rule or involve the court in rulemaking activity.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 26, 2024.

TRD-202400832

Justin Gordon

General Counsel

Office of the Attorney General

Earliest possible date of adoption: April 7, 2024

For further information, please call: (512) 565-8064

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 382. WOMEN'S HEALTH SERVICES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §382.1, concerning Introduction; §382.5, concerning Definitions; §382.7, concerning Client Eligibility; §382.9, concerning Application and Renewal Procedures; §382.15, concerning Covered and Non-covered Services; §382.17, concerning Health-Care Providers; §382.101, concerning Introduction; §382.105, concerning Definitions; §382.107, concerning Client Eligibility; §382.109, concerning Financial Eligibility Requirements; §382.113, concerning Covered and Non-covered Services; §382.115, concerning Family Planning Program Providers; §382.119, concerning Reimbursement; §382.121, concerning Provider's Request for Review of Claim Denial; §382.123, concerning Record Retention; §382.125, concerning Confidentiality and Consent; and §382.127, concerning FPP Services for Minors; and proposes the repeal of §382.3, concerning Non-entitlement and Availability; and §382.11, concerning Financial Eligibility Requirements.

BACKGROUND AND PURPOSE

The primary purpose of the proposal is to update eligibility and other Medicaid requirements in the Healthy Texas Women (HTW) program to describe the agency's compliance with the HTW Section 1115 Demonstration that was approved by the Centers for Medicare and Medicaid Services on January 22, 2020, and transitioned the majority of the program into Medicaid. For eligible minors, the HTW program remains fully funded by state general revenue.

Another purpose of the proposal is to comply with Texas Health and Safety Code §32.102, added by Senate Bill (S.B.) 750, 86th Legislature, Regular Session, 2019, which requires HHSC to provide enhanced postpartum care services, called HTW Plus, to eligible clients. HHSC made HTW Plus available to eligible clients enrolled in the HTW program beginning September 1, 2020.

Another purpose of the proposal is to comply with Texas Health and Safety Code §31.018, also added by S.B. 750, to include a requirement for women in HTW to receive referrals to the Primary Health Care Services Program.

Another purpose of the proposal is to make conforming amendments to the Family Planning Program (FPP) rules where necessary and update covered and non-covered services for HTW and FPP.

Other non-substantive clarifying changes were made throughout the rules.

SECTION-BY-SECTION SUMMARY

The proposed amendment to §382.1, Introduction, replaces references to statutes that have expired with a reference to the original bill in §382.1(b) and deletes "non-federally funded services" from §382.1(c)(5) because it no longer applies to the majority of the HTW program under the authority of the HTW Section 1115 Demonstration. The HTW Section 1115 Demonstration is state and federally funded through Medicaid. The proposed amendment also makes clarifications related to the use of state funds and minor changes to use "HTW program" consistently.

The proposed repeal of §382.3, Non-entitlement and Availability, deletes the rule as no longer necessary because it is no longer applicable to the HTW Section 1115 Demonstration. Within Medicaid, HTW is an entitlement program.

The proposed amendment to §382.5, Definitions, deletes the definition for "elective abortion" and adds a definition for "abortion" that aligns with the Texas Health and Safety Code. The proposed amendment adds definitions for "CHIP" and "HTW Plus" because they are new terms used in the proposed rules. The proposed amendment revises the terms "client," "covered service," "HTW," "HTW Provider," "Medicaid," "third-party resource," and "unintended pregnancy." The proposed amendment to "covered service" clarifies that a service reimbursable under the HTW program includes HTW Plus services to comply with Texas Health and Safety Code §32.102. The proposed amendments to "HTW" and "Medicaid" clarify that the terms refer to programs. The proposed amendment to "HTW Provider" specifies that HTW providers must be enrolled in the Texas Medicaid program and may also have a cost reimbursement contract with HHSC. The proposed amendment to "third-party resource" complies with federal Medicaid third-party resource requirements. The proposed amendment to "unintended pregnancy" makes the term plural to conform with the usage of the term in §382.1. The proposed amendment deletes the terms "child," "contraceptive method," "corporate entity," "health care provider," and "health clinic" because they are no longer used in Chapter 382, Subchapter A.

The proposed amendment to §382.7, Client Eligibility, updates eligibility requirements in the HTW program to reflect changes made to comply with the HTW Section 1115 Demonstration and federal Medicaid requirements, as well as Texas Health and Safety Code §32.102. The eligibility requirements updated include income, citizenship, HTW Plus eligibility criteria, period of eligibility, automatic eligibility determination, and third-party resources. The proposed amendment updates rule references and reformats the rule to improve readability of the rules.

The proposed amendment to §382.9, Application and Renewal Procedures, revises the title of the section to "Initial Application and Renewal Procedures." The proposed amendment also updates §382.9(a) to specify that women apply for HTW using the medical assistance application form and can apply for HTW online. The proposed amendment in §382.9(h)(2) adds that HTW clients can renew online. The proposed amendment complies with the HTW Section 1115 Demonstration and federal Medicaid requirements. The proposed amendment updates a rule reference and makes editorial changes to improve readability of the rules.

The proposed repeal of §382.11, Financial Eligibility Requirements, deletes the rule because updated financial and income eligibility requirements were added to proposed amended §382.7, Client Eligibility.

The proposed amendment to §382.15, Covered and Non-covered Services, adds language on HTW Plus services in §382.15(b) to comply with Texas Health and Safety Code §32.102 and updates language on covered and non-covered services for more specificity as to services available in the HTW program. The proposed amendment clarifies that women receiving HTW Plus services can also receive HTW services listed in §382.15(a).

The proposed amendment to §382.17, Health-Care Providers, revises the title of the section to "HTW Providers." The proposed amendment also adds language to §382.17(a)(5) on requirements for HTW providers to refer women in HTW to HHSC programs like the Primary Health Care Services Program to comply with Texas Health and Safety Code §31.018. The proposed amendment to §382.17(e) changes the HTW provider requirement to certify compliance with §382.17(b) from annually to periodically using an HHSC -approved form. The proposed amendment deletes §382.17(h) because the initial certification period for the HTW program has passed.

The proposed amendment to §382.101, Introduction, replaces references to statutes that have expired with a reference to the original bill in §382.1(b) and makes clarifications related to the use of state funds and minor changes to use "FPP" consistently.

The proposed amendment to §382.105, Definitions, deletes the definition for "elective abortion" and adds a definition for "abortion" that aligns with the Texas Health and Safety Code. The proposed amendment replaces the definition for "contractor" with a definition for "grantee" to align current terminology. The proposed amendment revises the terms "covered service," "Family Planning Program provider," "Medicaid," "third-party resource," and "unintended pregnancy." The proposed amendment to "covered service" clarifies the definition using plain language. The proposed amendment to "Family Planning Program provider" removes the term "health-care" as it is included in the definition. The proposed amendment to "Medicaid" clarifies that the term refers to a program. The proposed amendment to "third-party resource" is consistent with third-party resource requirements used in HTW. The proposed amendment to "unintended pregnancy" makes the term plural to conform with the usage of the term in §382.101. The proposed amendment deletes the terms "corporate entity," "contraceptive method," and "health clinic," because the terms are not used in Chapter 382, Subchapter B.

The proposed amendment to §382.107, Client Eligibility, improves readability of the rules. The proposed amendment removes Medicaid for Pregnant Women from adjunctive eligibility as that program provides full health benefits.

The proposed amendment to §382.109, Financial Eligibility Requirements, improves readability of the rules.

The proposed amendment to §382.113, Covered and Non-covered Services, updates language on covered and non-covered services for more specificity as to services available in FPP and adds language on new services.

The proposed amendment to §382.115, Family Planning Program Health-Care Providers, improves readability; makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider;" and revises the title of the section to, "Family Planning Program Providers." The proposed amendment to §382.115(e) changes the FPP provider requirement to certify compliance with §382.115(b) from annually to before initially providing covered services using an HHSC-approved form.

The proposed amendment to §382.119, Reimbursement, makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider."

The proposed amendment to §382.121, Provider's Request for Review of Claim Denial, makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider."

The proposed amendment to §382.123, Record Retention, makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider."

The proposed amendment to §382.125, Confidentiality and Consent, makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider."

The proposed amendment to §382.127, FPP Services for Minors, makes conforming changes to use the term, "FPP provider," instead of, "FPP health-care provider."

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rules as proposed. The additional cost is due to HHSC's reimbursement for additional services provided through the HTW Plus and FPP service arrays.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $2,047,918 in fiscal year (FY) 2024, $8,823,739 in FY 2025, $10,904,489 in FY 2026, $11,218,855 in FY 2027, and $11,550,379 in FY 2028.

GOVERNMENT GROWTH IMPACT STATEMENT

HHSC has determined that during the first five years that the rules will be in effect:

(1) the proposed rules will not create or eliminate a government program;

(2) implementation of the proposed rules will not affect the number of HHSC employee positions;

(3) implementation of the proposed rules will not require an increase in future legislative appropriations;

(4) the proposed rules will not require an increase in fees paid to HHSC;

(5) the proposed rules will not create a new rule;

(6) the proposed rules will expand and repeal existing rules;

(7) the proposed rules will not change the number of individuals subject to the rules; and

(8) HHSC has insufficient information to determine the proposed rule's effect on the state's economy.

SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities related to the rule as there is no requirement to alter current business practices. In addition, no rural communities contract with HHSC in any program or service affected by the proposed rule.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons; are necessary to receive a source of federal funds or comply with federal law; and are necessary to implement legislation that does not specifically state that §2001.0045 applies to the rules.

PUBLIC BENEFIT AND COSTS

Emily Zalkovsky, State Medicaid Director, has determined that for each year of the first five years the rules are in effect, women in their postpartum period will be able to receive additional HTW Plus benefits for 12 months and improve continuity of care between Medicaid or CHIP and HTW. Additionally, the rules are expected to maintain or decrease the number of Medicaid and CHIP paid deliveries, which will reduce annual expenditures for prenatal, delivery, and newborn and infant care.

Michelle Alletto, Chief Program and Services Officer, has determined that for the first five years the rules are in effect, clients receiving services through FPP will have access to an improved array of benefits to promote health and well-being.

Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because HTW and FPP services are available at no cost to the public and providers are reimbursed by HHSC for HTW and FPP covered services, including additional HTW Plus services.

TAKINGS IMPACT ASSESSMENT

HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.

PUBLIC COMMENT

Written comments on the proposal may be submitted to Rules Coordination Office, P.O. Box 13247, Mail Code 4102, Austin, Texas 78711-3247, or street address 701 W. 51st Street, Austin, Texas 78751; or emailed to HHSRulesCoordinationOffice@hhs.texas.gov.

To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 21R082" in the subject line.

SUBCHAPTER A. HEALTHY TEXAS WOMEN

1 TAC §§382.1, 382.5, 382.7, 382.9, 382.15, 382.17

STATUTORY AUTHORITY

The amendments are authorized by 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 agencies; Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules as necessary to carry out the commission's duties; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which authorize HHSC to administer the federal medical assistance (Medicaid) program.

The amendments also affect Texas Health and Safety Code §§31.018 and 32.102.

§382.1.Introduction.

(a) Governing rules. This subchapter sets out rules governing the administration of the Healthy Texas Women (HTW) program [~~(HTW)~~].

(b) Authority. This subchapter is authorized generally by Senate Bill 200, 84th Legislature, Regular Session, 2015 [~~Texas Government Code §531.0201(a)(2)(C)~~], which transferred [~~transfers~~] client services functions performed by the Texas Department of State Health Services to HHSC and required [~~, and Texas Government Code §531.0204, which requires~~] the HHSC Executive Commissioner to develop a transition plan which includes an outline of HHSC's reorganized structure and a definition of client services functions.

(1) to increase access to women's health and family planning services to:

(A) avert unintended pregnancies;

(B) positively affect the outcome of future pregnancies; and

(2) to implement the state policy to favor childbirth and family planning services that do not include elective abortion or the promotion of elective abortion within the continuum of care or services;

(3) to ensure the efficient and effective use of state funds in support of these objectives and [~~to avoid the direct or indirect use of~~] that state funds are not directly or indirectly used to promote or support elective abortion;

(4) to reduce the overall cost of publicly-funded health care (including federally-funded health care) by providing low-income Texans access to safe, effective services that are consistent with these objectives; and

(5) to enforce Texas Human Resources Code §32.024(c-1) and any other state law that regulates the delivery of HTW [~~non-federally funded family planning~~] services, to the extent permitted by the Constitution of the United States.

§382.5.Definitions.

The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.

(1) Abortion--As defined in Texas Health and Safety Code §245.002.

(2) [~~(1)~~] Affiliate--

(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:

(i) common ownership, management, or control;

(ii) a franchise; or

(iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity's brand name, trademark, service mark, or other registered identification mark.

(B) The written instruments referenced in subparagraph (A) of this definition may include a certificate of formation, a franchise agreement, standards of affiliation, bylaws, articles of incorporation or a license, but do not include agreements related to a physician's participation in a physician group practice, such as a hospital group agreement, staffing agreement, management agreement, or collaborative practice agreement.

(3) [~~(2)~~] Applicant--A female applying to receive services in the [~~under~~] HTW program, including a current client who is applying to renew.

(4) [~~(3)~~] Budget group--Members of a household whose needs, income, resources, and expenses are considered in determining eligibility.

~~[(4) Child--An adoptive, step, or natural child who is under 19 years of age.]~~

(5) CHIP--The Texas State Children's Health Insurance Program.

(6) [~~(5)~~] Client--A female who is enrolled in the [~~receives services through~~] HTW program.

~~[(6) Contraceptive method--Any birth control options approved by the United States Food and Drug Administration, with the exception of emergency contraception].~~

~~[(7) Corporate entity--A foreign or domestic non-natural person, including a for-profit or nonprofit corporation, a partnership, or a sole proprietorship.]~~

(7) [~~(8)~~] Covered service--A service that is reimbursable under the HTW program, including HTW Plus services [~~medical procedure for which HTW will reimburse an enrolled health-care provider~~].

[(9) Elective abortion--The intentional termination of a pregnancy by an attending physician who knows that the female is pregnant, using any means that is reasonably likely to cause the death of the fetus. The term does not include the use of any such means:]

~~[(A) to terminate a pregnancy that resulted from an act of rape or incest;]~~

[(B) in a case in which a female suffers from a physical disorder, physical disability, or physical illness, including a life-endangering physical condition caused by or arising from the pregnancy, that would, as certified by a physician, place the female in danger of death or risk of substantial impairment of a major bodily function unless an abortion is performed; or]

[(C) in a case in which a fetus has a life-threatening physical condition that, in reasonable medical judgment, regardless of the provision of life-saving treatment, is incompatible with life outside the womb.]

(8) [~~(10)~~] Family planning services--Educational or comprehensive medical activities that enable individuals to determine freely the number and spacing of their children and to select the means by which this may be achieved.

(9) [~~(11)~~] Federal poverty level--The household income guidelines issued annually and published in the Federal Register by the United States Department of Health and Human Services.

[(12) Health-care provider--A physician, physician assistant, nurse practitioner, clinical nurse specialist, certified nurse midwife, federally qualified health center, family planning agency, health clinic, ambulatory surgical center, hospital ambulatory surgical center, laboratory, or rural health center.]

[(13) Health clinic--A corporate entity that provides comprehensive preventive and primary health care services to outpatient clients, which must include both family planning services and diagnosis and treatment of both acute and chronic illnesses and conditions in three or more organ systems. The term does not include a clinic specializing in family planning services.]

(10) [~~(14)~~] HHSC--The Texas Health and Human Services Commission or its designee.

(11) HTW Plus--Healthy Texas Women Plus. An enhanced postpartum services package for women enrolled in the HTW program who are eligible for the services.

(12) [~~(15)~~] HTW program--The Healthy Texas Women program. A program administered by HHSC as outlined in this subchapter.

(13) [~~(16)~~] HTW provider--A [~~health-care~~ ] provider that is enrolled in the Texas Medicaid program and is qualified to perform covered services in the HTW program. An HTW provider with a cost reimbursement contract with HHSC may be reimbursed for providing [~~contracted with HHSC to provide~~] additional services as described in §382.21(a)(2) of this subchapter (relating to Reimbursement).

(14) [~~(17)~~] Medicaid program--The Texas Medical Assistance Program, a joint federal and state program provided for in Texas Human Resources Code Chapter 32, and subject to Title XIX of the Social Security Act, 42 U.S.C. §§1396 et seq.

(15) [~~(18)~~] Minor--In accordance with the Texas Family Code, a person under 18 years of age who has never been married and never been declared an adult by a court (emancipated).

(16) [~~(19)~~] Third-party resource--A person or organization, other than HHSC or a person living with a female [~~the~~] applicant or a client, who may be liable as a source of payment of the female applicant's or client's medical expenses, for example, a private health insurance company or liability insurance company [~~(for example, a health insurance company)~~].

(17) [~~(20)~~] Unintended pregnancies--Pregnancies that [~~pregnancy--Pregnancy~~] a female reports as either mistimed or undesired at the time of conception.

(18) [~~(21)~~] U.S.C.--United States Code.

§382.7.Client Eligibility.

(a) HTW Program Criteria. A female applicant is eligible for the [~~to receive services through~~] HTW program if she:

(1) meets the following age requirements:

(A) is 18 through 44 years of age[~~, inclusive~~]; or

(B) is 15 through 17 years of age[~~, inclusive,~~] and has a parent or legal guardian apply, renew, and report changes to her case on her behalf;

(2) is not pregnant;

(3) meets the income eligibility requirements for the HTW program as determined by HHSC in accordance with Chapter 366 Subchapter K of this title (relating to Modified Adjusted Gross Income Methodology) and her household income is equal to or less than 204.2 percent [~~has countable income (as calculated under §382.11 of this subchapter (relating to Financial Eligibility Requirements) that does not exceed 200 percent~~] of the federal poverty level;

(4) is a:

(A) United States citizen;[,]

(B) a United States national;[,] or

(C) an alien who qualifies under §366.513 of this title (relating to Citizenship) [~~§382.9(g) of this subchapter (relating to Application and Renewal Procedures)~~];

(5) resides in Texas;

(6) does not currently receive benefits through another [a] Medicaid program, CHIP [~~Children's Health Insurance Program~~], or Medicare Part A or B; and

(7) does not have creditable health coverage that covers the services provided in the HTW program [~~provides~~ ], except as specified in subsection (f) [~~(c)~~] of this section.

(b) HTW Plus Criteria.

(1) A client in the HTW program may also qualify to receive HTW Plus covered services if the client:

(A) meets the criteria in subsection (a) of this section; and

(B) has been pregnant within the past 12 months.

(2) HTW Plus services are available to a client for a period of not more than 12 months after the date of enrollment in the HTW program.

(1) For purposes of subsection (a)(1)(A) of this section, a female [an] applicant is considered 18 years of age on the day of her 18th birthday and 44 years of age through the last day of the month of her 45th birthday.

(2) For purposes of subsection (a)(1)(B) of this section, a female [an] applicant is considered 15 years of age the first day of the month of her 15th birthday and 17 years of age through the day before her 18th birthday.

(3) A female applicant is ineligible for the HTW program if her application is received the month before her 15th birthday or the month after she turns 45 years of age.

[(c) Third-party resources. An applicant with creditable health coverage that would pay for all or part of the costs of covered services may be eligible to receive covered services if she affirms, in a manner satisfactory to HHSC, her belief that a party may retaliate against her or cause physical or emotional harm if she assists HHSC (by providing information or by any other means) in pursuing claims against that third party. An applicant with such creditable health coverage who does not comply with this requirement is ineligible to receive HTW benefits.]

(d) Period of eligibility. A client is deemed eligible to receive covered services for 12 continuous months from the earliest day of the application month on which the female applicant meets all eligibility criteria [~~after her application is approved~~], unless:

(1) the client dies;

(2) the client voluntarily withdraws;

(3) the client no longer satisfies criteria set out in subsection (a) of this section;

(4) state law no longer allows the client [~~female~~] to be covered; or

(5) HHSC determines the client provided information affecting her eligibility that was false at the time of application.

[(e) Transfer of eligibility. A female who received services through the Texas Women's Health Program is automatically enrolled as an HTW client and is eligible to receive covered services for as long as she would have been eligible for the Texas Women's Health Program.]

(e) [~~(f)~~] Automatic Eligibility Determination [~~Auto-Enrollment~~].

(1) A client [~~female~~] who is receiving Medicaid or CHIP [~~for pregnant women~~] is automatically tested for eligibility for the [~~enrolled into~~] HTW program at the end of her Medicaid or CHIP [~~for pregnant women~~] certification period if she is not eligible for another Medicaid program or CHIP.

(2) Program coverage begins on the first day following the termination of her Medicaid or CHIP coverage.

(3) A client [~~female~~] enrolled in the [~~into~~] HTW program may [~~has the option to~~] opt out of the [~~receiving~~] HTW program. [~~To be auto-enrolled, a female must:~~]

~~[(1) be 18 to 44 years of age, inclusive, as defined in subsection (b) of this section;]~~

~~[(2) not be receiving active third-party resources at the time of auto-enrollment; and]~~

~~[(3) be ineligible for any other Medicaid or CHIP program.]~~

(f) Third party resources. All female applicants eligible for the HTW program must comply with §354.2313 of this title (relating to Duty of Applicant or Recipient to Inform and Cooperate). A female applicant with creditable health coverage or other third party resources that would pay for all or part of the costs of covered services may affirm, in a manner satisfactory to HHSC, her belief that someone may retaliate against her or cause physical or emotional harm if she assists HHSC by providing information or by any other means in pursuing claims against that third-party resource. A female applicant with such creditable health coverage who does not comply with §354.2313 of this title is ineligible to receive HTW benefits.

§382.9.Initial Application and Renewal Procedures.

(a) Application. A female, or a parent or legal guardian acting on her behalf if she is 15 through 17 years of age[~~, inclusive,~~ ] may apply for the HTW program [~~services~~ ] by completing an application for medical assistance [~~form~~] and providing documentation as required by HHSC.

(1) A female [An] applicant may obtain an application [~~in the following ways~~]:

(A) from a local benefits office of HHSC, [~~an HTW provider's office,~~] or any other location that makes the application [~~HTW applications~~] available;

(B) from the HTW program or HHSC website;

(D) by any other means approved by HHSC.

(2) HHSC accepts [~~and processes~~] every application received through the following means:

(A) in person at a local HHSC benefits office [~~of HHSC~~];

(B) by fax;

(D) online; or

(E) [~~(D)~~] by any other means approved by HHSC.

(b) Processing timeline. HHSC processes an [~~HTW~~] application for medical assistance by the 45th day after the date HHSC receives the application.

(c) Start of coverage. Program coverage[,] for a client [~~females~~] who is determined eligible [~~are not auto-enrolled~~] in accordance with §382.7 [~~§382.7(f)~~] of this subchapter (relating to Client Eligibility)[,] begins on the earliest [~~first~~] day of the application month on [in] which the client meets all eligibility criteria [~~HHSC receives a valid application~~].

(1) For female applicants 18 through 44 years of age[~~, inclusive,~~] a valid application has, at a minimum, the applicant's name, address, and signature.

(2) For female applicants 15 through 17 years of age[~~, inclusive,~~] a valid application has, at a minimum, the female applicant's name, address, and the signature of a parent or legal guardian.

(d) Social security number (SSN) required. In accordance with 42 U.S.C. §405(c)(2)(C)(i), HHSC requires a female [an] applicant to provide or apply for a social security number. If a female [an] applicant is not eligible to receive an SSN, the female applicant must provide HHSC with any documents requested by HHSC to verify the female applicant's identity. [~~HHSC requests, but does not require, budget group members who are not applying for HTW to provide or apply for an SSN.~~]

(e) Interviews. HHSC does not require an interview for purposes of an eligibility determination. A female [An ] applicant may, however, request an interview for an initial or renewal application.

(f) Identity. A female [An] applicant must verify her identity the first time she applies to receive covered services.

(g) Citizenship.

(1) If a female [an] applicant is a United States citizen, she must provide proof of citizenship.

(2) If a female [~~the~~] applicant[,] who is otherwise eligible for the [~~to receive~~] HTW program [~~services,~~] is not a [an] United States citizen, HHSC determines her eligibility as described in [~~accordance with~~] §366.513 of this title (relating to Citizenship).

(3) Citizenship is only verified once, unless HHSC receives conflicting information related to citizenship. If a female [an] applicant's citizenship has already been verified by HHSC for eligibility for the Medicaid program [~~or HTW~~], the female applicant is not required to re-verify her citizenship.

(h) Renewal. A client, [~~female,~~] or a parent or legal guardian acting on [~~her~~] behalf of the client if she is 15 through 17 years of age, [~~inclusive,~~] may renew her enrollment in the HTW program [~~services~~ ] by completing a renewal form as described in this subsection and providing documentation as required by HHSC.

(1) HHSC sends a [~~An HTW~~] client [~~will be sent~~] a renewal packet during the 9th [~~10th~~] month of her 12-month certification period for the HTW program.

(2) HHSC accepts and processes every renewal form received through the following means:

(A) in person at a local HHSC benefits office [~~of HHSC~~];

(B) by fax;

(D) online; or

(E) [~~(D)~~] by any other means approved by HHSC.

§382.15.Covered and Non-covered Services.

(a) Covered services[~~. Services~~] provided through the HTW program include:

(1) contraceptive services;

(2) pregnancy testing and counseling;

(3) preconception health screeningsfor:

(A) obesity;

(B) hypertension;

(D) cholesterol;

(E) smoking; and

(F) mental health;

(4) sexually transmitted infection (STI) services;

(5) limited pharmacological treatment for the following chronic conditions:

(A) hypertension;

(B) diabetes; and

(6) breast and cervical cancer screening and diagnostic services:

(A) radiological procedures including mammograms;

(B) screening and diagnosis of breast cancer; and

(7) immunizations;

(8) limited pharmacological treatment for postpartum depression;

(9) health history and physical exam; and

(10) covered HTW Plus services for clients who qualify for HTW Plus as described in §382.7(b) of this subchapter.

~~[(1) health history and physical;]~~

~~[(2) counseling and education;]~~

~~[(3) laboratory testing;]~~

~~[(4) provision of a contraceptive method;]~~

~~[(5) pregnancy tests;]~~

~~[(6) sexually transmitted infection screenings and treatment;]~~

~~[(7) referrals for additional services, as needed;]~~

~~[(8) immunizations;]~~

~~[(9) breast and cervical cancer screening and diagnostic services; and]~~

~~[(10) other services subject to available funding.]~~

(b) In addition to the HTW services above, covered HTW Plus services include:

(1) mental health counseling/treatment, including:

(A) individual, family, and group psychotherapy services; and

(B) peer specialist services;

(2) substance use disorder treatment, including:

(A) screening, brief intervention, and referral for treatment;

(B) outpatient substance use counseling;

(D) medication-assisted treatment; and

(E) peer specialist services;

(3) cardiovascular and coronary condition management, including:

(A) cardiovascular evaluation imaging and laboratory studies;

(B) blood pressure monitoring equipment; and

(4) diabetes management, including:

(A) laboratory studies;

(B) additional injectable insulin options;

(D) glucose monitoring supplies; and

(E) voice-integrated glucometers for women with diabetes who are visually impaired; and

(5) asthma management, including:

(A) medications; and

(B) supplies.

(1) counseling on and provision of abortion services; and

~~[(2) counseling on and provision of emergency contraceptives; and]~~

(2) [~~(3)~~] other services that cannot be appropriately billed with a permissible procedure code.

§382.17.HTW Providers [~~Health-Care Providers~~].

(a) Procedures. An HTW provider must:

(1) be enrolled as a Medicaid program provider in accordance with Chapter 352 of this title (relating to Medicaid and Children's Health Insurance Program Provider Enrollment);

(2) comply with subsection (b) of this section;

(3) [~~(2)~~] complete the [~~HTW~~] certification [~~process as~~] described in subsection (e) of this section; and

(4) [~~(3)~~] comply with the requirements [~~set out~~] in Chapter 354, Subchapter A, Division 1 of this title (relating to Medicaid Procedures for Providers).

(5) ensure women in HTW receive information and referrals to HHSC programs like the Primary Health Care Services Program.

(b) Requirements. An HTW provider must ensure that:

(1) the HTW provider does not perform or promote elective abortions outside the scope of the HTW program and is not an affiliate of an entity that performs or promotes elective abortions; and

(2) in offering or performing a covered [~~an HTW~~] service, the HTW provider:

(A) does not promote elective abortion within the scope of HTW;

(B) maintains physical and financial separation between its HTW activities and any elective abortion-performing or abortion-promoting activity, as evidenced by the following:

(i) physical separation of HTW services from any elective abortion activities, no matter what entity is responsible for the activities;

(ii) a governing board or other body that controls the HTW provider has no board members who are also members of the governing board of an entity that performs or promotes elective abortions;

(iii) accounting records that confirm that none of the funds used to pay for HTW services directly or indirectly support the performance or promotion of elective abortions by an affiliate; and

(iv) display of signs and other media that identify HTW and the absence of signs or materials promoting elective abortion in the HTW provider's location or in the HTW provider's public electronic communications; and

(C) does not use, display, or operate under a brand name, trademark, service mark, or registered identification mark of an organization that performs or promotes elective abortions.

(c) Defining "promote." For purposes of subsection (b) of this section, the term "promote" means advancing, furthering, advocating, or popularizing elective abortion by, for example:

(1) taking affirmative action to secure elective abortion services for an HTW client (such as making an appointment, obtaining consent for the elective abortion, arranging for transportation, negotiating a reduction in an elective abortion [~~health-care~~] provider fee, or arranging or scheduling an elective abortion procedure); however, the term does not include providing upon the patient's request neutral, factual information and nondirective counseling, including the name, address, telephone number, and other relevant information about a [~~health-care~~] provider;

(2) furnishing or displaying to an HTW client information that publicizes or advertises an elective abortion service or [~~health-care~~ ] provider; or

(3) using, displaying, or operating under a brand name, trademark, service mark, or registered identification mark of an organization that performs or promotes elective abortions.

(d) Compliance information. Upon request, an HTW provider must provide HHSC with all information HHSC requires to determine the HTW provider's compliance with this section.

(e) Certification. Before initially providing covered services and periodically thereafter [~~Upon initial application for enrollment in HTW~~], an HTW [~~a health-care~~] provider must certify its compliance with subsection (b) of this section using an HHSC-approved form and any other requirement specified by HHSC. [~~Each health-care provider enrolled in HTW must annually certify that the HTW provider complies with subsection (b) of this section.~~]

(f) HTW provider disqualification. If HHSC determines that an HTW provider fails to comply with subsection (b) of this section, HHSC disqualifies the [~~HTW~~] provider from the HTW program.

(g) Client assistance and recoupment. If an HTW provider is disqualified, HHSC takes appropriate action to:

(1) assist a [~~an HTW~~] client to find an alternate HTW provider; and

(2) recoup any funds paid to a disqualified HTW provider for covered [~~HTW~~] services performed during the period of disqualification.

[(h) Exemption from initial certification. The initial application requirement of subsection (g) of this section does not apply to a health-care provider that certified and was determined to be in compliance with the requirements of the Texas Women's Health Program administered by HHSC pursuant to Texas Human Resources Code §32.024(c-1).]

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400821

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

For further information, please call: (512) 815-1887

1 TAC §382.3, §382.11

STATUTORY AUTHORITY

The repeals are authorized by 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 agencies; Texas Government Code §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules as necessary to carry out the commission's duties; and Texas Human Resources Code §32.021 and Texas Government Code §531.021(a), which authorize HHSC to administer the federal medical assistance (Medicaid) program.

The repeals also affect Texas Health and Safety Code §§31.018 and 32.102.

§382.3.Non-entitlement and Availability.

§382.11.Financial Eligibility Requirements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400822

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

For further information, please call: (512) 815-1887

SUBCHAPTER B. FAMILY PLANNING PROGRAM

1 TAC §§382.101, 382.105, 382.107, 382.109, 382.113, 382.115, 382.119, 382.121, 382.123, 382.125, 382.127

STATUTORY AUTHORITY

The amendments also affect Texas Health and Safety Code §§31.018 and 32.102.

§382.101.Introduction.

(a) Governing rules. This subchapter sets out rules governing the administration of the HHSC Family Planning Program (FPP) . This program is separate from family planning services provided through Medicaid.

(c) Objectives. FPP [~~The HHSC Family Planning Program~~] is established to achieve the following overarching objectives:

(1) to increase access to health and family planning services to:

(A) avert unintended pregnancies;

(B) positively affect the outcome of future pregnancies; and

(3) to ensure the efficient and effective use of state funds in support of these objectives and that [~~to avoid the direct or indirect use of~~] state funds are not directly or indirectly used to promote or support elective abortion;

(5) to enforce any state law that regulates the delivery of non-federally funded family planning services, to the extent permitted by the Constitution of the United States.

§382.105.Definitions.

The following words and terms, when used in this subchapter, have the following meanings unless the context clearly indicates otherwise.

(1) Abortion--As defined in Texas Health and Safety Code §245.002.

(2) [~~(1)~~] Affiliate--

(A) An individual or entity that has a legal relationship with another entity, which relationship is created or governed by at least one written instrument that demonstrates:

(i) common ownership, management, or control;

(ii) a franchise; or

(iii) the granting or extension of a license or other agreement that authorizes the affiliate to use the other entity's brand name, trademark, service mark, or other registered identification mark.

(3) [~~(2)~~] Applicant--An individual applying to receive services under FPP, including a current client who is applying to renew.

(4) [~~(3)~~] Budget group--Members of a household whose needs, income, resources, and expenses are considered in determining eligibility.

(5) [~~(4)~~] Client--Any individual seeking assistance from an FPP health-care provider to meet their family planning goals.

~~[(5) Contraceptive method--Any birth control option approved by the United States Food and Drug Administration, with the exception of emergency contraception].~~

~~[(6) Contractor--An entity that HHSC has contracted with to provide services. The contractor is the responsible entity, even if a subcontractor provides the service.]~~

~~[(7) Corporate entity--A foreign or domestic non-natural person, including a for-profit or nonprofit corporation, a partnership, or a sole proprietorship.]~~

(6) [~~(8)~~] Covered service--A service that is reimbursable under FPP [~~medical procedure for which FPP will reimburse a contracted health-care provider~~].

~~[(A) to terminate a pregnancy that resulted from an act of rape or incest;]~~

(7) [~~(10)~~] Family Planning Program (FPP)--The non-Medicaid program administered by HHSC as outlined in this subchapter.

(8) [~~(11)~~] Family Planning Program [~~health-care~~] provider--A health-care provider that is contracted with HHSC and qualified to perform covered services.

(9) [~~(12)~~] Family planning services--Educational or comprehensive medical activities that enable individuals to determine freely the number and spacing of their children and to select the means by which this may be achieved.

(10) [~~(13)~~] Federal poverty level--The household income guidelines issued annually and published in the Federal Register by the United States Department of Health and Human Services.

(11) Grantee--An entity that HHSC has contracted with to provide services. The grantee is the responsible entity, even if a subgrantee provides the service.

(12) [~~(14)~~] Health-care provider--A physician, physician assistant, nurse practitioner, clinical nurse specialist, certified nurse midwife, federally qualified health center, family planning agency, health clinic, ambulatory surgical center, hospital ambulatory surgical center, laboratory, or rural health center.

[(15) Health clinic--A corporate entity that provides comprehensive preventive and primary health care services to outpatient clients, which must include both family planning services and diagnosis and treatment of both acute and chronic illnesses and conditions in three or more organ systems. The term does not include a clinic specializing in family planning services.]

(13) [~~(16)~~] HHSC--The Texas Health and Human Services Commission or its designee.

(15) [~~(18)~~] Minor--In accordance with the Texas Family Code, a person under 18 years of age who has never been married and never been declared an adult by a court (emancipated).

(16) [~~(19)~~] Point of Service--The location where an individual can receive FPP services.

(17) [~~(20)~~] Third-party resource--A person or organization, other than HHSC or a person living with an [~~the~~] applicant or a client, who may be liable as a source of payment of the applicant's or client's medical expenses, for example, a private health insurance company or liability insurance company [~~(for example, a health insurance company)~~].

(18) [~~(21)~~] Unintended pregnancies--Pregnancies that [~~pregnancy--Pregnancy~~] a female reports as either mistimed or undesired at the time of conception.

(19) [~~(22)~~] U.S.C.--United States Code.

§382.107.Client Eligibility.

(a) FPP Criteria. A male or female is eligible for [~~to receive services through~~] FPP if he or she:

(1) [~~he or she~~] is 64 years of age or younger;

(2) [~~he or she~~] resides in Texas; and

(3) has countable income (as calculated under §382.109 of this subchapter (relating to Financial Eligibility Requirements) that does not exceed 250 percent of the federal poverty level (FPL).

(b) Contractors determine eligibility at the point of service in accordance with program policy and procedures.

(c) Adjunctive eligibility--An applicant is considered adjunctively (automatically) eligible for FPP services at an initial or renewal eligibility screening if the applicant can provide proof of active enrollment in one of the following programs:

(1) Children's Health Insurance Program (CHIP) Perinatal;

~~[(2) Medicaid for Pregnant Women;]~~

(2) [~~(3)~~] Special Supplemental Nutrition Program for Women, Infants, and Children (WIC); or

(3) [~~(4)~~] Supplement Nutrition Assistance Program (SNAP).

§382.109.Financial Eligibility Requirements.

Calculating countable income. FPP determines an applicant's financial eligibility by calculating the applicant's countable income. To determine countable income, FPP adds the incomes listed in paragraph (1) of this section, less any deductions listed in paragraph (2) of this section, and exempting any amounts listed in paragraph (3) of this section.

(1) To determine income eligibility, FPP counts the income of the following individuals if living together:

(A) the individual age 18 through 64[~~, inclusive,~~] applying for FPP;

(i) the individual's spouse; and

(ii) the individual's children age 18 and younger; or

(B) the individual age 17 or younger[~~, inclusive,~~] applying for FPP;

(i) the individual's parent(s);

(ii) the individual's siblings age 18 and younger; and

(iii) the individual's children;

(2) In determining countable income, FPP deducts the following items:

(A) a dependent care deduction of up to $200 per month for each child under two years of age, and up to $175 per month for each dependent two years of age or older;

(B) a deduction of up to $175 per month for each dependent adult with a disability; and

(3) FPP exempts from the determination of countable income the following types of income:

(A) the earnings of a child;

(B) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(D) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program) (7 U.S.C. §§2011-2036), the Child Nutrition Act of 1966 (42 U.S.C. §§1771-1793), the National School Lunch Act (42 U.S.C. §§1751-1769), and the Older Americans Act of 1965 (42 U.S.C. §§3056, et seq.);

(E) foster care payments;

(F) payments made under a government housing assistance program based on need;

(G) energy assistance payments;

(H) job training payments;

(I) lump sum payments;

(J) Supplemental Security Income;

(K) adoption payments;

(L) dividends, interest and royalties;

(M) Veteran's Administration;

(N) earned income tax credit payments;

(O) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §§5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(P) educational assistance payments; and

(Q) crime victim's compensation payments.

§382.113.Covered and Non-covered Services.

(a) Covered services[~~. Services~~] provided through FPP include:

(1) contraceptive services;

(2) pregnancy testing and counseling;

(3) preconception health screenings for:

(A) obesity;

(B) hypertension;

(D) cholesterol;

(E) smoking; and

(F) mental health;

(4) sexually transmitted infection (STI) services;

(5) limited pharmacological treatment for the following chronic conditions:

(A) hypertension;

(B) diabetes; and

(6) breast and cervical cancer screening and diagnostic services:

(A) radiological procedures including mammograms;

(B) screening and diagnosis of breast cancer; and

(7) immunizations;

(8) limited pharmacological treatment for postpartum depression;

(9) health history and physical exam;

(10) mental health counseling/treatment, including:

(A) individual, family, and group psychotherapy services; and

(B) psychological testing administration and evaluation;

(11) health behavior intervention, including:

(A) screening, brief intervention, and referral for treatment;

(B) smoking cessation services; and

(12) cardiovascular and coronary condition management, including:

(A) cardiovascular evaluation imaging and laboratory studies;

(B) blood pressure monitoring equipment; and

(13) diabetes management, including:

(A) laboratory studies;

(B) additional injectable insulin options; and

~~[(1) health history and physical;]~~

~~[(2) counseling and education;]~~

~~[(3) laboratory testing;]~~

~~[(4) provision of a contraceptive method;]~~

~~[(5) pregnancy tests;]~~

~~[(6) sexually transmitted infection screenings and treatment;]~~

~~[(7) referrals for additional services, as needed;]~~

~~[(8) immunizations;]~~

~~[(9) breast and cervical cancer screening and diagnostic services;]~~

~~[(10) prenatal services; and]~~

~~[(11) other services subject to available funding.]~~

(b) Non-covered services in[~~. Services not provided through~~] FPP include:

(1) counseling on and provision of abortion services; and

~~[(2) counseling on and provision of emergency contraceptives; and]~~

(2) [~~(3)~~] other services that cannot be appropriately billed with a permissible procedure code.

§382.115.Family Planning Program [~~Health-Care~~] Providers.

(a) Procedures. An FPP [~~health-care~~] provider must:

(1) be enrolled as a Medicaid program provider in accordance with Chapter 352 of this title (relating to Medicaid and Children's Health Insurance Program Provider Enrollment);

(2) comply with subsection (b) of this section;

(3) [~~(2)~~] must complete the FPP certification process as described in subsection (e)[~~(g)~~] of this section; and

(4) [~~(3)~~] must comply with the requirements set out in Chapter 354, Subchapter A, Division 1 of this title (relating to Medicaid Procedures for Providers).

(b) Requirements. An FPP health-care provider must ensure that:

(1) the FPP [~~health-care~~] provider does not perform or promote elective abortions outside the scope of FPP and is not an affiliate of an entity that performs or promotes elective abortions; and

(2) in offering or performing a covered [~~an FPP~~] service, the FPP [~~health-care~~] provider:

(A) does not promote elective abortion within the scope of FPP;

(B) maintains physical and financial separation between its FPP activities and any elective abortion-performing or abortion-promoting activity, as evidenced by the following:

(i) physical separation of FPP services from any elective abortion activities, no matter what entity is responsible for the activities;

(ii) a governing board or other body that controls the FPP [~~health-care~~] provider has no board members who are also members of the governing board of an entity that performs or promotes elective abortions;

(iii) accounting records that confirm that none of the funds used to pay for FPP services directly or indirectly support the performance or promotion of elective abortions by an affiliate; and

(iv) display of signs and other media that identify FPP services and the absence of signs or materials promoting elective abortion in the FPP [~~health-care~~] provider's location or in the FPP [~~health-care~~] provider's public electronic communications; and

(C) does not use, display, or operate under a brand name, trademark, service mark, or registered identification mark of an organization that performs or promotes elective abortions.

(c) Defining "promote." For purposes of subsection (b) of this section, the term "promote" means advancing, furthering, advocating, or popularizing elective abortion by, for example:

(1) taking affirmative action to secure elective abortion services for an FPP client (such as making an appointment, obtaining consent for the elective abortion, arranging for transportation, negotiating a reduction in an elective abortion provider fee, or arranging or scheduling an elective abortion procedure); however, the term does not include providing upon the patient's request neutral, factual information and nondirective counseling, including the name, address, telephone number, and other relevant information about a [~~health-care~~ ] provider;

(2) furnishing or displaying to an FPP client information that publicizes or advertises an elective abortion service or [~~health-care~~ ] provider; or

(3) using, displaying, or operating under a brand name, trademark, service mark, or registered identification mark of an organization that performs or promotes elective abortions.

(d) Compliance information. Upon request, an FPP [~~health-care~~ ] provider must provide HHSC with all information HHSC requires to determine the provider's compliance with this section.

(e) Certification. Before initially providing covered services, [~~Upon initial application for enrollment in FPP,~~ ] an FPP grantee [~~contractor~~] must certify its compliance with subsection (b) of this section using an HHSC-approved form and any other requirement specified by HHSC. [~~Each FPP contractor must annually certify that the contractor complies with subsection (b) of this section.~~]

(f) FPP provider [~~Provider~~] disqualification. If HHSC determines that an FPP [~~health-care~~] provider fails to comply with subsection (b) of this section, HHSC disqualifies the [~~FPP health-care~~] provider from providing FPP services under this subchapter.

(g) Client assistance and recoupment. If an FPP [~~health-care~~ ] provider is disqualified from providing FPP services under this subchapter, HHSC takes appropriate action to:

(1) assist a [~~an FPP~~] client to find an alternate FPP [~~health-care~~] provider; and

(2) recoup any funds paid to a disqualified provider for covered [~~FPP~~] services performed during the period of disqualification.

§382.119.Reimbursement.

(a) Reimbursement.

(1) Covered services provided through FPP are reimbursed in accordance with Chapter 355 of this title (relating to Reimbursement Rates).

(2) Entities that contract with HHSC to provide additional services related to family planning that are separate from services referenced in paragraph (1) of this subsection are reimbursed by HHSC in compliance with program standards, policy and procedures, and contract requirements unless payment is prohibited by law.

(b) Claims procedures. An FPP [~~health-care~~] provider must comply with Chapter 354, Subchapter A, Divisions 1 and 5 of this title (relating to Medicaid Procedures for Providers and relating to Physician and Physician Assistant Services).

(c) Improper use of reimbursement. An FPP [~~health-care~~ ] provider may not use any FPP funds received to pay the direct or indirect costs (including overhead, rent, phones, equipment, and utilities) of elective abortions.

(d) An FPP [~~health-care~~] provider may not deny covered services to a client based on the client's inability to pay.

§382.121.Provider's Request for Review of Claim Denial.

(a) Review of denied claim. An FPP [~~health-care~~] provider may request a review of a denied claim. The request must be submitted as an administrative appeal under Chapter 354, Subchapter I, Division 3 of this title (relating to Appeals).

(b) Appeal procedures. An administrative appeal is subject to the timelines and procedures set out in Chapter 354, Subchapter I, Division 3 of this title and all other procedures and timelines applicable to an FPP [~~health-care~~] provider's appeal of a Medicaid program claim denial.

§382.123.Record Retention.

(a) FPP grantees [~~contractors~~] must maintain, for the time period specified by the HHSC, all records pertaining to client services, contracts, and payments.

(b) FPP grantees [~~contractors~~] must comply with the Medicaid program record retention requirements found in §354.1004 of this title (relating to Retention of Records).

(c) All records relating to services must be accessible for examination at any reasonable time to representatives of HHSC and as required by law.

§382.125.Confidentiality and Consent.

(a) Confidentiality required. An FPP [~~health-care~~] provider must maintain all health care information as confidential to the extent required by law.

(b) Written release authorization. Before an FPP [~~health-care~~ ] provider may release any information that might identify a particular client, that client must authorize the release in writing. If the client is a minor, the client's parent, managing conservator, or guardian, as authorized by Chapter 32 of the Texas Family Code or by federal law or regulations, must authorize the release.

(c) Confidentiality training. An FPP [~~health-care~~] provider's staff (paid and unpaid) must be informed during orientation of the importance of keeping client information confidential.

(d) Records monitoring. An FPP [~~health-care~~] provider must monitor client records to ensure that only appropriate staff and HHSC may access the records.

(e) Assurance of confidentiality. An FPP [~~health-care~~ ] provider must verbally assure each client that her records are confidential and must explain the meaning of confidentiality.

(f) Consent for minors. FPP services must be provided with consent from the minor's parent, managing conservator, or guardian only as authorized by Texas Family Code, Chapter 32, or by federal law or regulations.

(g) An [A] FPP [~~health-care~~] provider may not require consent for family planning services from the spouse of a married client.

§382.127.FPP Services for Minors.

(a) Minors must be provided individualized family planning counseling and family planning medical services that meet their specific needs as soon as possible.

(b) The FPP [~~health-care~~] provider must ensure that:

(1) counseling for minors seeking family planning services is provided with parental consent;

(2) counseling for minors includes information on use and effectiveness of all medically approved birth control methods, including abstinence; and

(3) appointment schedules are flexible enough to accommodate access for minors requesting services.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on February 23, 2024.

TRD-202400823

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: April 7, 2024

For further information, please call: (512) 815-1887