83R4027 EES/KFF-D
By: Kolkhorst H.B. No. 1145
A BILL TO BE ENTITLED
AN ACT
relating to the provision and delivery of certain health and human
services in this state, including the provision of those services
through the Medicaid program and the prevention of fraud, waste,
and abuse in that program and other programs.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 531.008(c), Government Code, is amended
to read as follows:
(c) The executive commissioner shall establish the
following divisions and offices within the commission:
(1) the eligibility services division to make
eligibility determinations for services provided through the
commission or a health and human services agency related to:
(A) the child health plan program;
(B) the financial assistance program under
Chapter 31, Human Resources Code;
(C) the medical assistance program under Chapter
32, Human Resources Code;
(D) the nutritional assistance programs under
Chapter 33, Human Resources Code;
(E) long-term care services, as defined by
Section 22.0011, Human Resources Code;
(F) community-based support services identified
or provided in accordance with Section 531.02481; and
(G) other health and human services programs, as
appropriate;
(2) the office of inspector general to perform fraud
and abuse investigation and enforcement functions as provided by
Subchapter C and other law;
(3) the office of the ombudsman to:
(A) provide dispute resolution services for the
commission and the health and human services agencies; and
(B) perform consumer protection functions
related to health and human services;
(4) a purchasing division as provided by Section
531.017; [and]
(5) an internal audit division to conduct a program of
internal auditing in accordance with [Government Code,] Chapter
2102; and
(6) a data analysis division as provided by Section
531.0082.
SECTION 2. Subchapter A, Chapter 531, Government Code, is
amended by adding Section 531.0082 to read as follows:
Sec. 531.0082. DATA ANALYSIS DIVISION. (a) The data
analysis division within the commission required by Section
531.008(c) shall establish, employ, and oversee data analysis
processes designed to:
(1) improve contract management;
(2) detect data trends; and
(3) identify anomalies relating to service
utilization, providers, payment methodologies, and compliance with
requirements in Medicaid and child health plan program managed care
and fee-for-service contracts.
(b) The commission shall assign staff to the data analysis
division who perform duties only in relation to the division.
(c) The data analysis division shall use all available data
and tools for data analysis when establishing, employing, and
overseeing data analysis processes under this section.
(d) Not later than the 30th day following the end of each
calendar quarter, the data analysis division shall provide an
update on the division's activities and findings to the governor,
the lieutenant governor, the speaker of the house of
representatives, the chair of the senate finance committee, the
chair of the house appropriations committee, and the chairs of the
standing committees of the senate and house of representatives
having jurisdiction over the Medicaid program.
SECTION 3. Subchapter B, Chapter 531, Government Code, is
amended by adding Section 531.02115 to read as follows:
Sec. 531.02115. MARKETING ACTIVITIES BY PROVIDERS
PARTICIPATING IN MEDICAID OR CHILD HEALTH PLAN PROGRAM. (a) A
provider participating in the Medicaid or child health plan
program, including a provider participating in the network of a
managed care organization that contracts with the commission to
provide services under the Medicaid or child health plan program,
may not engage in any marketing activity, including any
dissemination of material or other attempt to communicate, that:
(1) involves unsolicited personal contact, including
by door-to-door solicitation, direct mail, or telephone, with a
Medicaid client or a parent whose child is enrolled in the Medicaid
or child health plan program;
(2) is directed at the client or parent solely because
the client or the parent's child is receiving benefits under the
Medicaid or child health plan program; and
(3) is intended to influence the client's or parent's
choice of provider.
(b) In addition to the requirements of Subsection (a), a
provider participating in the network of a managed care
organization described by that subsection must comply with the
marketing guidelines established by the commission under Section
533.008.
(c) Nothing in this section prohibits a provider
participating in the Medicaid or child health plan program from
engaging in a marketing activity, including any dissemination of
material or other attempt to communicate, that is intended to
influence the choice of provider by a Medicaid client or a parent
whose child is enrolled in the Medicaid or child health plan
program, if the marketing activity involves only the general
dissemination of information, including by television, radio,
newspaper, or billboard advertisement, and does not involve
unsolicited personal contact.
(d) The executive commissioner may adopt rules as necessary
to implement this section.
SECTION 4. Section 531.02414, Government Code, is amended
by adding Subsection (g) to read as follows:
(g) The commission shall enter into a memorandum of
understanding with the Texas Department of Motor Vehicles and the
Texas Department of Public Safety for purposes of obtaining the
motor vehicle registration and driver's license information of a
recipient of medical transportation services, or another medical
assistance recipient requesting those services, to confirm that the
recipient meets the eligibility criteria for the services requiring
that recipients have no other means of transportation. The
commission shall establish a process by which managed care
organizations contracting with the commission under Chapter 533 may
request and obtain the information described under this subsection
for purposes of similarly confirming a medical assistance
recipient's eligibility for medical transportation services.
SECTION 5. Section 531.102(a), Government Code, is amended
to read as follows:
(a) The [commission, through the] commission's office of
inspector general[,] is responsible for the prevention, detection,
audit, inspection, review, and investigation of fraud, waste, and
abuse in the provision and delivery of all health and human services
in the state, including services through any state-administered
health or human services program that is wholly or partly federally
funded, and the enforcement of state law relating to the provision
of those services. The commission may obtain any information or
technology necessary to enable the office to meet its
responsibilities under this subchapter or other law.
SECTION 6. (a) Subchapter A, Chapter 533, Government Code,
is amended by adding Section 533.00254 to read as follows:
Sec. 533.00254. DELIVERY OF MEDICAL TRANSPORTATION PROGRAM
SERVICES. (a) In this section, "medical transportation program"
has the meaning assigned by Section 531.02414.
(b) Subject to Subsection (c), the commission shall provide
medical transportation program services through a managed care
delivery model.
(c) The commission may delay providing medical
transportation program services through a managed care delivery
model in areas of this state in which the commission on September 1,
2013, is piloting a full-risk transportation broker model until:
(1) the date the contract entered into with the broker
expires; or
(2) an earlier date, if the commission determines that
earlier implementation is feasible.
(b) The Health and Human Services Commission shall begin
providing medical transportation program services through the
delivery model required by Section 533.00254, Government Code, as
added by this section, not later than March 1, 2014, subject to
Section 533.00254(c), Government Code, as added by this section.
SECTION 7. Section 32.0322, Human Resources Code, is
amended by amending Subsection (b) and adding Subsections (b-1),
(e), (f), and (g) to read as follows:
(b) Subject to Subsections (b-1) and (e), the [The]
executive commissioner of the Health and Human Services Commission
by rule shall establish criteria for the department or the
commission's office of inspector general to suspend a provider's
billing privileges under the medical assistance program, revoke a
provider's enrollment under the program, or deny a person's
application to enroll as a provider under the program based on:
(1) the results of a criminal history check;
(2) any exclusion or debarment of the provider from
participation in a state or federally funded health care program;
(3) the provider's failure to bill for medical
assistance or refer clients for medical assistance within a
12-month period; or
(4) any of the provider screening or enrollment
provisions contained in 42 C.F.R. Part 455, Subpart E.
(b-1) In adopting rules under this section and except as
provided by Subsection (g), the executive commissioner of the
Health and Human Services Commission shall require revocation of a
provider's enrollment or denial of a person's application for
enrollment as a provider under the medical assistance program if
the person has been excluded or debarred from participation in a
state or federally funded health care program as a result of:
(1) a criminal conviction or finding of civil or
administrative liability for committing a fraudulent act, theft,
embezzlement, or other financial misconduct under a state or
federally funded health care program; or
(2) a criminal conviction for committing an act under
a state or federally funded health care program that caused bodily
injury to:
(A) a person who is 65 years of age or older;
(B) a person with a disability; or
(C) a person under 18 years of age.
(e) The department may reinstate a provider's enrollment
under the medical assistance program or grant a person's previously
denied application to enroll as a provider, including a person
described by Subsection (b-1), if the department finds:
(1) good cause to determine that it is in the best
interest of the medical assistance program; and
(2) the person has not committed an act that would
require revocation of a provider's enrollment or denial of a
person's application to enroll since the person's enrollment was
revoked or application was denied, as appropriate.
(f) The department must support a determination made under
Subsection (e) with written findings of good cause for the
determination.
(g) The executive commissioner of the Health and Human
Services Commission may not adopt rules under Subsection (b-1) that
would require the revocation of enrollment of a provider who
operates a nursing facility or an ICF-MR facility subject to
Section 36.005(a)(2).
SECTION 8. Section 36.005(b-1), Human Resources Code, is
amended to read as follows:
(b-1) The period of ineligibility begins on the date on
which the judgment finding the provider liable under Section 36.052
is entered by the trial court [determination that the provider is
liable becomes final].
SECTION 9. Subchapter C, Chapter 36, Human Resources Code,
is amended by adding Section 36.1041 to read as follows:
Sec. 36.1041. NOTIFICATION OF SETTLEMENT. (a) Not later
than the 10th day after the date a person described by Section
36.104(b) reaches a proposed settlement agreement with a defendant,
the person must notify the attorney general.
(b) Not later than the 30th day after the date the attorney
general receives notice under Subsection (a), the attorney general
shall file any objections to the terms of the proposed settlement
agreement with the court.
(c) On filing of objections under Subsection (b), the court
shall conduct a hearing. On a showing of good cause, the hearing
may be held in camera. If, after the hearing, the court determines
that the proposed settlement is fair, adequate, and reasonable
under all the circumstances, the court may allow the parties to
settle notwithstanding the attorney general's objection.
SECTION 10. (a) The Health and Human Services Commission
shall:
(1) as soon as practicable after the effective date of
this Act, conduct a thorough review of the laws and policies related
to the use of non-emergent services provided by ambulance providers
under the medical assistance program established under Chapter 32,
Human Resources Code;
(2) not later than January 1, 2014, make
recommendations to the legislature regarding suggested changes to
the law that would reduce the incidence of and opportunities for
fraud, waste, and abuse with respect to the activities described by
Subdivision (1) of this subsection; and
(3) amend the policies described by Subdivision (1) of
this subsection as necessary to assist in accomplishing the goals
described by Subdivision (2) of this subsection.
(b) This section expires September 1, 2015.
SECTION 11. (a) The Department of State Health Services
shall:
(1) as soon as practicable after the effective date of
this Act, conduct a thorough review of the laws and policies related
to the licensure of nonemergency transportation providers;
(2) not later than January 1, 2014, make
recommendations to the legislature regarding suggested changes to
the law that would reduce the incidence of and opportunities for
fraud, waste, and abuse with respect to the activities described by
Subdivision (1) of this subsection; and
(3) amend the policies described by Subdivision (1) of
this subsection as necessary to assist in accomplishing the goals
described by Subdivision (2) of this subsection.
(b) This section expires September 1, 2015.
SECTION 12. (a) The Texas Medical Board shall:
(1) as soon as practicable after the effective date of
this Act, conduct a thorough review of the laws and policies related
to:
(A) the delegation of health care services by
physicians or medical directors to qualified emergency medical
services personnel; and
(B) physicians' assessment of patients' needs for
purposes of ambulatory transfer or transport or other purposes;
(2) not later than January 1, 2014, make
recommendations to the legislature regarding suggested changes to
the law that would reduce the incidence of and opportunities for
fraud, waste, and abuse with respect to the activities described by
Subdivision (1) of this subsection; and
(3) amend the policies described by Subdivision (1) of
this subsection as necessary to assist in accomplishing the goals
described by Subdivision (2) of this subsection.
(b) This section expires September 1, 2015.
SECTION 13. (a) This section is a clarification of
legislative intent regarding Section 32.024(s), Human Resources
Code, and a validation of certain Health and Human Services
Commission acts and decisions.
(b) In 1999, the legislature became aware that certain
children enrolled in the Medicaid program were receiving treatment
under the program outside the presence of a parent or another
responsible adult. The treatment of unaccompanied children under
the Medicaid program resulted in the provision of unnecessary
services to those children, the exposure of those children to
unnecessary health and safety risks, and the submission of
fraudulent claims by Medicaid providers.
(c) In addition, in 1999, the legislature became aware of
allegations that certain Medicaid providers were offering money and
other gifts in exchange for a parent's or child's consent to receive
unnecessary services under the Medicaid program. In some cases, a
child was offered money or gifts in exchange for the parent's or
child's consent to have the child transported to a different
location to receive unnecessary services. In some of those cases,
once transported, the child received no treatment and was left
unsupervised for hours before being transported home. The
provision of money and other gifts by Medicaid providers in
exchange for parents' or children's consent to services deprived
those parents and children of the right to choose a Medicaid
provider without improper inducement.
(d) In response, in 1999, the legislature enacted Chapter
766 (H.B. 1285), Acts of the 76th Legislature, Regular Session,
which amended Section 32.024, Human Resources Code, by amending
Subsection (s) and adding Subsection (s-1). As amended, Section
32.024(s), Human Resources Code, requires that a child's parent or
guardian or another adult authorized by the child's parent or
guardian accompany the child at a visit or screening under the early
and periodic screening, diagnosis, and treatment program in order
for a Medicaid provider to be reimbursed for services provided at
the visit or screening. As filed, the bill required a child's
parent or guardian to accompany the child. The house committee
report added the language allowing an adult authorized by the
child's parent or guardian to accompany the child in order to
accommodate a parent or guardian for whom accompanying the parent's
or guardian's child to each visit or screening would be a hardship.
(e) The principal purposes of Chapter 766 (H.B. 1285), Acts
of the 76th Legislature, Regular Session, 1999, were to prevent
Medicaid providers from committing fraud, encourage parental
involvement in and management of health care of children enrolled
in the early and periodic screening, diagnosis, and treatment
program, and ensure the safety of children receiving services under
the Medicaid program. The addition of the language allowing an
adult authorized by a child's parent or guardian to accompany the
child furthered each of those purposes.
(f) The legislature, in amending Section 32.024(s), Human
Resources Code, understood that:
(1) the effectiveness of medical, dental, and therapy
services provided to a child improves when the child's parent or
guardian actively participates in the delivery of those services;
(2) a parent is responsible for the safety and
well-being of the parent's child, and that a parent cannot casually
delegate this responsibility to a stranger;
(3) a parent may not always be available to accompany
the parent's child at a visit to the child's doctor, dentist, or
therapist; and
(4) Medicaid providers and their employees and
associates have a financial interest in the delivery of services
under the Medicaid program and, accordingly, cannot fulfill the
responsibilities of a parent or guardian when providing services to
a child.
(g) The legislature declares that a Medicaid provider, or an
employee or associate of the Medicaid provider, is not "another
adult" within the meaning of Section 32.024(s), Human Resources
Code, from the date the section was amended, and may not be
authorized by the parent or guardian of a child to accompany the
child at a visit or screening under the early and periodic
screening, diagnosis, and treatment program at which the Medicaid
provider provides services to the child. Any interpretation of
Section 32.024(s), Human Resources Code, that allows a Medicaid
provider, or an employee or associate of the Medicaid provider, to
be authorized to accompany a child at a visit or screening at which
the Medicaid provider provides services is contrary to the intent
of the legislature.
(h)(1) On March 15, 2012, the Health and Human Services
Commission notified certain Medicaid providers that state law and
commission policy require a child's parent or guardian or another
properly authorized adult to accompany a child receiving services
under the Medicaid program. This notice followed the commission's
discovery that some providers were transporting children from
schools to therapy clinics and other locations to receive therapy
services. Although the children were not accompanied by a parent or
guardian during these trips, the providers were obtaining
reimbursement for the trips under the Medicaid medical
transportation program. The commission clarified in the notice that
in order for a provider to be reimbursed for transportation
services provided to a child under the Medicaid medical
transportation program, the child must be accompanied by the
child's parent or guardian or another adult who is not the provider
and whom the child's parent or guardian has authorized to accompany
the child by submitting signed, written consent to the provider.
(2) In May 2012, a lawsuit was filed to enjoin the
Health and Human Services Commission from enforcing Section
32.024(s), Human Resources Code, and 1 T.A.C. Section 380.207, as
interpreted in certain notices issued by the commission. A state
district court enjoined the commission from denying eligibility to
a child for transportation services under the Medicaid medical
transportation program if the child's parent or guardian does not
accompany the child, provided that the child's parent or guardian
authorizes any other adult to accompany the child. The court also
enjoined the commission from requiring as a condition for a
provider to be reimbursed for services provided to a child during a
visit or screening under the early and periodic screening,
diagnosis, and treatment program that the child be accompanied by
the child's parent or guardian, provided that the child's parent or
guardian authorizes another adult to accompany the child. The
state has filed a notice of appeal of the court's order.
(3) Additionally, the office of inspector general of
the Health and Human Services Commission has found that several
Medicaid providers have knowingly offered and provided inducements
to individuals enrolled in the Medicaid program to influence
decisions by the individuals relating to selecting a Medicaid
provider and receiving goods and services under the Medicaid
program. Specifically, some providers have offered, arranged for,
and provided free transportation services to influence
individuals' selection of a provider in violation of federal law.
The office of inspector general has the authority to sanction these
violations under 1 T.A.C. Chapter 371. Accordingly, in late July
and early August 2012, the office of inspector general issued
notices of intent to assess penalties against providers whom the
office of inspector general found to have committed these
violations.
(4) The legislature declares that a governmental
action taken or a decision made by the Health and Human Services
Commission before the effective date of this Act to implement or
enforce a policy requiring that, in order for a Medicaid provider to
be reimbursed for services provided to a child under the early and
periodic screening, diagnosis, and treatment program, the child
must be accompanied by the child's parent or guardian or another
adult who is not the provider or the provider's employee or
associate and whom the child's parent or guardian has authorized to
accompany the child by submitting signed, written consent to the
provider pursuant to Section 32.024(s), Human Resources Code, is
conclusively presumed, as of the date the action was taken or the
decision was made, to be valid and to have occurred in accordance
with all applicable law.
(5) The legislature also declares that, without
determination of the weight or sufficiency of the evidence relied
upon, the imposition of sanctions by the office of inspector
general of the Health and Human Services Commission on Medicaid
providers whom the office of inspector general has found to have
offered and provided inducements to individuals enrolled in the
Medicaid program in violation of federal law is a valid exercise of
that office's authority to enforce laws that regulate fraud, waste,
and abuse in the Medicaid program.
(6) This section does not apply to:
(A) an action or decision that was void at the
time the action was taken or the decision was made;
(B) an action or decision that violates federal
law or the terms of a federal waiver; or
(C) an action or decision that, under a statute
of this state or the United States, was a misdemeanor or felony at
the time the action was taken or the decision was made.
SECTION 14. As soon as practicable after the effective date
of this Act, the executive commissioner of the Health and Human
Services Commission shall establish the data analysis division
required under Section 531.008(c)(6), Government Code, as added by
this Act. The data analysis division shall provide the initial
update required under Section 531.0082(d), Government Code, as
added by this Act, not later than the 30th day after the last day of
the first complete calendar quarter occurring after the date the
division is established.
SECTION 15. The amendment by this Act of Section
36.005(b-1), Human Resources Code, is intended to clarify rather
than change existing law.
SECTION 16. If before implementing any provision of this
Act a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 17. This Act takes effect September 1, 2013.