S.C.R. No. 31
SENATE CONCURRENT RESOLUTION
WHEREAS, Plaintiffs Dorena Coleman, Curtis Jackson, and
Federico Perez, individually, (collectively referred to as
"Plaintiffs"), filed suit on August 13, 2020, against the Texas
Health and Human Services Commission, including employees in their
official capacities ("HHSC"), and sought relief both on Plaintiffs'
own behalf and on behalf of a class of similarly situated
individuals ("Medicaid HCV Class"), and filed a motion for class
certification on August 14, 2020; and
WHEREAS, Plaintiffs alleged HHSC's Prior Authorization
Criteria and Policy's use of fibrosis score as criterion for direct
action antiviral drug (DAA) coverage violated Title XIX of the
Social Security Act:
(a) By discriminating among similarly situated Medicaid
recipients on the basis of categorical restrictions that are not
based upon prevailing clinical standards, as prohibited by 42
U.S.C. § 1396a(a)(10)(B)(i) and (ii) and 42 C.F.R. § 440.240;
(b) By denying qualified Medicaid participants the
provision of necessary medical assistance and treatment coverage
with "reasonable promptness," as required by 42 U.S.C. §
1396a(a)(8);
(c) By excluding qualified Medicaid recipients from
medically necessary treatment coverage as required by 42 U.S.C. §
1396a(a)(10)(A); and
WHEREAS, Defendants denied the allegations of the Lawsuit,
denied all allegations of wrongdoing and liability, and denied any
causation of harm or damage to the Medicaid HCV Class; and
WHEREAS, The parties mediated this matter on December 1,
2020, with the Honorable Patrick Keel as mediator, and thereafter
successfully reached an agreement in principle on December 17,
2020; and
WHEREAS, The Parties have now agreed to a full settlement on
the following terms:
(a) HHSC will modify its Medicaid prior authorization (PA)
criteria to treat chronic Hepatitis C clients who have METAVIR
fibrosis scores of F2-F4 with Direct Acting Antiviral (DAA)
treatment by March 1, 2021;
(b) Between March 1, 2021, and September 1, 2021, Medicaid
enrollees with severe extrahepatic effects of chronic Hepatitis C
who have fibrosis scores other than F2-F4 will be approved for DAA
treatment on a case-by-case basis by the HHSC Chief Medical
Director or an MCO Medical Director, if they are assigned to an MCO;
(c) As of September 1, 2021, HHSC will remove all METAVIR
fibrosis score, drug screening, and specialist prescription PA
criteria requirements for DAA treatment for chronic Hepatitis C
clients, if the legislature approves the funding for HHSC's
Exceptional Item (EI); HHSC agrees that, for the period September
1, 2021, through August 31, 2023, HHSC will not reinstate these
criteria; and
WHEREAS, This Agreement is expressly conditioned upon
approval by the Office of the Attorney General of Texas, the
Governor of Texas, and the Texas Legislature; and
WHEREAS, This Agreement is expressly conditioned upon
enactment by the Texas Legislature of the EI requested by HHSC; and
WHEREAS, Section 111.003(b), Texas Civil Practice and
Remedies Code, requires a state agency to obtain legislative
approval of a settlement agreement that "commits this state to a
course of action that in reasonable probability will entail a
continuing increased expenditure of state funds over subsequent
state fiscal bienniums"; therefore, the Settlement Agreement is
expressly conditioned upon the legislature approving and
appropriating the agreed upon settlement amount; now, therefore, be
it
RESOLVED, That the 87th Legislature of the State of Texas
hereby approve the proposed Settlement Agreement.
______________________________ ______________________________
President of the Senate Speaker of the House
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.C.R. No. 31 was adopted by the Senate
on May 19, 2021, by the following vote: Yeas 31, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.C.R. No. 31 was adopted by the House
on May 29, 2021, by the following vote: Yeas 133, Nays 0,
one present not voting.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor