Proposed Rules Title 1

TITLE 1. ADMINISTRATION

PART 3. OFFICE OF THE ATTORNEY GENERAL

SUBCHAPTER C. ELECTRONIC SUBMISSION OF REQUEST FOR ATTORNEY GENERAL OPEN RECORDS DECISION

The Office of the Attorney General (OAG) proposes adding new provisions to Subchapter C of Chapter 63, which pertains to electronic submission of requests for attorney general open records decision under the Public Information Act (the "Act"). First, the OAG proposes new subsections §63.21(6) and (7) to define the terms "impractical" and "impossible" for purposes of Texas Government Code §552.3031(a)(2). Second, the proposal adds subsection §63.22(g) to clarify that a governmental body is not permitted to include multiple decision requests in a single electronic submission. Third, the proposal adds subsection §63.22(h) to require a written explanation if a governmental body determines it is impossible or impractical to use the attorney general's designated electronic filing system. Fourth, the proposal adds subsection §63.22(i) to prescribe the standard that certain governmental bodies must use to determine if they fall under the population-based exception to mandatory electronic filing in Texas Government Code §552.3031(a)(1)(B).

EXPLANATION AND JUSTIFICATION OF RULES

The Legislature, in the 88th Regular Session (2023), added Texas Government Code §552.3031 (H.B. 3033), which requires certain Texas governmental bodies to electronically submit requests for OAG open records decisions under the Act. Additionally, subsection 552.3031(c) permits the OAG to adopt rules necessary to implement the new section, including rules that define the amount or type of formatting that would make use of the OAG's designated electronic filing system "impractical or impossible."

SECTION-BY-SECTION SUMMARY

Proposed new §63.21(6) defines the term "impractical" for purposes of Texas Government Code §552.3031(a)(2). The definition includes files that are in a format the attorney general's designated electronic filing system cannot accept at the time of filing and conversions of paper and physical material that would take more than one hour of labor. The definition also includes exclusions for circumstances where submission of a representative sample under Texas Government Code §552.301 would comply with the Act and avoid the issue that made submission impractical.

Proposed new §63.21(7) defines the term "impossible" for purposes of Texas Government Code §552.3031(a)(2). The definition includes provisions to address file-sizes beyond the OAG's designated electronic filing system capacity at time of submission, formats the OAG's designated electronic filing system does not support at time of submission, electronic filing system outages, and technical outages by the governmental body. The definition also includes exclusions for circumstances where submission of a representative sample under Texas Government' Code §552.301 would comply with the Act and avoid the issue that made submission impossible.

Proposed new §63.22(g) specifies that each submission to the OAG's designated electronic filing system must pertain to a single matter and multiple unrelated decision requests cannot be combined into a single submission.

Proposed new §63.22(h) prescribes that a governmental body that does not use the OAG's designated electronic filing system because it is impractical or impossible shall provide a statement in its decision request that explains why it was impractical or impossible to use the system.

Proposed new §63.22(i) prescribes that if a governmental body extends into more than one county, then the governmental body shall use the population of the county in which its central administrative office is located to determine if the exception in Texas Government Code §552.3031(a)(1)(B) is applicable to the governmental body.

FISCAL IMPACT ON STATE AND LOCAL GOVERNMENTS

Tamara Smith, Division Chief for the Open Records Division, 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 the state or local governments.

Texas Government Code §552.3031 mandates electronic submission for certain governmental bodies. Because there is a fee to electronically submit a record to the attorney general's designated electronic filing system, Texas Government Code §552.3031 will have a fiscal impact on governmental bodies that are required to electronically submit records. However, the proposed rules only clarify the requirements of Texas Government Code §552.3031 and do not expand or contract the applicability of the statute. Accordingly, the proposed rules do not have an impact beyond that of the statute.

PUBLIC BENEFIT AND COST NOTE

Ms. Tamara Smith 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 governmental bodies that electronically submit records under the Act. The public can confirm compliance with these standards and use the procedures available in the Act to enforce them.

Ms. Tamara Smith has also determined that for each year of the first five-year period the proposed rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules.

Texas Government Code §552.3031 mandates electronic submission for certain governmental bodies. Because there is a fee to electronically submit a record to the OAG's designated electronic filing system, Texas Government Code §552.3031 will have a cost impact on governmental bodies that are required to electronically submit records. However, the proposed rules only clarify the requirements of Texas Government Code §552.3031 and do not expand or contract the applicability of the statute. Accordingly, the proposed rules do not have an impact beyond that of the statute.

IMPACT ON LOCAL EMPLOYMENT OR ECONOMY

The Open Records Division has determined that the proposed rules do not have an impact on local employment or economies because the proposed rules 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

The Open Records Division 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 not result in an increase or 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 openrecordsassistance@oag.texas.gov or by mail to Open Records Division, 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 openrecordsassistance@oag.texas.gov or by mail to Open Records Division, Attn: Rule Comments, Office of the Attorney General, P.O. Box 12548, Austin, Texas 78711-2548.

STATUTORY AUTHORITY. New 1 TAC §63.21(6), §63.21(7), §63.22(f), §63.22(g), §63.22(h), and §63.22(i) are proposed pursuant to Texas Government Code §552.3031(c), which permits the OAG to adopt rules necessary to implement Texas Government Code §552.3031.

CROSS-REFERENCE TO STATUTE. New 1 TAC §63.21(6), §63.21(7), §63.22(f), §63.22(g), and §63.22(h) clarify Texas Government Code §552.3031 and affect §§552.301, .302. New 1 TAC §63.22(g), §63.22(h) and §63.22(i) clarify Texas Government Code §552.301 and affect §552.3031.

§63.21.Definitions.

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

(1) "Governmental body" means a governmental body as defined in Texas Government Code §552.003(1).

(2) "Request for decision" means a request for an attorney general open records decision made by a governmental body pursuant to Texas Government Code §552.301 and §552.309.

(3) "Requestor" means a requestor as defined in Texas Government Code §552.003(6).

(4) "Interested third party" [~~"Interested Third Party"~~] means any third party who wishes to submit comments, documents, or other materials for consideration in the attorney general's open records decision process under Texas Government Code §552.304 or §552.305.

(5) "Attorney general's designated electronic filing system" [~~"Attorney General's Designated Electronic Filing System"~~] means the online, electronic filing system designated by the attorney general as the system for submitting documents and other materials to the attorney general under Texas Government Code §552.309.

(6) "Impractical" means:

(A) the responsive information is in a format the attorney general's designated electronic filing system cannot accept at the time of filing, and the governmental body cannot otherwise comply with its procedural submission requirements through use of a representative sample under Texas Government Code §552.301(e), or

(B) the responsive information is recorded on paper or physical material that would take more than one hour of labor to convert into an electronic format that is compatible with the attorney general's designated electronic filing system, and the governmental body cannot otherwise comply with its procedural submission requirements through use of a representative sample under Texas Government Code §552.301(e).

(7) "Impossible" means:

(A) the size of the information attachment exceeds the attorney general's designated e-filing system's capacity at time of filing, and the governmental body cannot otherwise comply with its procedural submission requirements through use of a representative sample under Texas Government Code §552.301(e), or

(B) the format of the information is not compatible the attorney general's designated e-filing system at time of filing, cannot be converted without altering the character of the information in a manner that would prevent proper review by the attorney general, and the governmental body cannot otherwise comply with its procedural submission requirements through use of a representative sample under Texas Government Code §552.301(e), or

(C) the attorney general's designated e-filing system is down at the time the governmental body attempts to submit the filing, or.

(D) the governmental body is experiencing a technical outage that prevents it from e-filing at the time of the attempted submission.

§63.22.Electronic Submission of Request for Attorney General Decision.

(a) A governmental body that requests a decision from the attorney general under Texas Government Code §552.301 about whether requested public information is excepted from public disclosure may submit that request for decision to the attorney general through the attorney general's designated electronic filing system.

(b) The governmental body's request for decision must comply with the requirements of Texas Government Code §552.301.

(c) The deadlines in Texas Government Code §552.301 and §552.303 are met if the governmental body timely submits the required documents and other materials through the attorney general's designated electronic filing system within the time prescribed.

(d) The governmental body must comply with the requirements of Texas Government Code §552.301(d) and (e-1), and §552.305 regardless of whether the request for attorney general decision is submitted electronically or through another permissible method of submission.

(e) To use the attorney general's designated electronic filing system, the governmental body must agree to and comply with the terms and conditions of use as outlined on the attorney general's designated electronic filing system website.

(f) The confidentiality of Texas Government Code §552.3035 applies to information submitted under Texas Government Code §552.301(e)(1)(D) through the attorney general's designated electronic filing system.

(g) Each submission to the attorney general's designated electronic filing system must pertain to one decision request matter. A governmental body may not combine multiple unrelated decision requests into a single submission through the attorney general's designated electronic filing system. However, a governmental body may submit a single request for decision for multiple written requests for information if the written requests for information seek information that is identical, is based on some or all of the same facts or fact pattern, or is directly related.

(h) A governmental body who, pursuant to Texas Government Code §552.3031(a)(2), does not use the attorney general's designated electronic filing system because it is impractical or impossible shall provide a statement in its request for decision that explains why it was impractical or impossible to use the attorney general's designated electronic filing system, including the date and approximate time the governmental body attempted submission.

(i) If a governmental body extends into more than one county, then the governmental body shall use the population of the county in which its central administrative office is located to determine if Texas Government Code §552.3031(a)(1)(B) is applicable to the governmental body.

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 January 29, 2024.

TRD-202400321

Justin Gordon

General Counsel

Office of the Attorney General

Earliest possible date of adoption: March 10, 2024

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

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PURCHASED HEALTH SERVICES

DIVISION 18. MATERNITY CLINIC SERVICES

1 TAC §354.1271

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes an amendment to §354.1271, concerning Benefits and Limitations.

BACKGROUND AND PURPOSE

The proposal is necessary to comply with House Bill (H.B.) 12, 88th Texas Legislature, Regular Session, 2023, which requires HHSC to provide 12 months of postpartum Medicaid coverage to all women receiving Medicaid at the time their pregnancy ends in accordance with Section 1902(e)(16) of the Social Security Act, which is a state option. If the option is elected under Medicaid, states are required to provide the same 12-month postpartum coverage to targeted low-income pregnant children in the Children's Health Insurance Program (CHIP).

SECTION-BY-SECTION SUMMARY

Subchapter A, Purchased Health Services; Division 18, Maternity Clinic Services

The proposed amendment to §354.1271 removes the reference to a 60-day timeframe for postpartum services. This change removes the 60-day clinical postpartum timeframe and specifies that women are eligible for maternity clinic services in the postpartum period. The proposed amendment also changes the term "department" to "HHSC."

FISCAL NOTE

Trey Wood, HHSC Chief Financial Officer, has determined that for each year of the first five years that the rule will be in effect, there will be an estimated additional cost to state government as a result of enforcing and administering the rule as proposed. Enforcing or administering the rule does not have foreseeable implications relating to costs or revenues of local government.

The effect on state government for each year of the first five years the proposed rules are in effect is an estimated cost of $77,594,484 in fiscal year (FY) 2024, $333,481,844 in FY 2025, $240,633,175 in FY 2026, $222,167,509 in FY 2027, and $235,754,886 in FY 2028.

GOVERNMENT GROWTH IMPACT STATEMENT

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

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

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

(3) implementation of the proposed rule will result in no assumed change in future legislative appropriations;

(4) the proposed rule will not affect fees paid to HHSC;

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

(6) the proposed rule will expand an existing rule;

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

(8) HHS has insufficient amount of information to determine the effect of the proposed rule.

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

Trey Wood has also determined that there will be an adverse economic effect on small businesses, micro-businesses, or rural communities. HHSC has insufficient amount of information to determine the number of small businesses, micro-businesses or rural communities impacted.

This rule implements required state statute and therefore HHSC has no regulatory flexibility in the implementation.

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 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 rule.

PUBLIC BENEFIT AND COSTS

Michelle Alletto, Chief Program and Services Officer, has determined that for each year of the first five years the rule is in effect, the public benefit will be additional months of Medicaid and CHIP coverage increasing access to health care in the postpartum period, potentially resulting in improved health outcomes for the women and better birth outcomes in subsequent pregnancies. There could potentially be cost savings to the state if women have access to Medicaid or CHIP rather than being uninsured.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rule may incur economic costs to come into compliance with policy, procedure, training, and record-keeping requirements. HHSC lacks sufficient data to estimate costs to persons required to comply with the rules as proposed.

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 the 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 24R001" in the subject line.

STATUTORY AUTHORITY

The amendment is 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 provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021(c), which provides the executive commissioner the authority to administer the federal medical assistance program in Texas and to establish methods of administration and adopt necessary rules for the proper and efficient operation of the medical assistance program.

The amendment affects Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Human Resources Code §32.024.

§354.1271.Benefits and Limitations.

(a) Subject to the specifications, conditions, limitations, and requirements established by the Texas Health and Human Services Commission (HHSC) [~~the department~~] or its designee, maternity clinic services are those clinic services determined by a licensed physician (MD or DO) to be reasonable and medically necessary for the care of a pregnant female (patient) during the patient's prenatal period and [~~subsequent 60-day~~] postpartum period. The physician prescribing the services must be employed by or have a contractual agreement/formal arrangement with the clinic to assume professional responsibility for the services provided to the clinic's patients.

(b) The physician must see each patient and prescribe or approve each patient's plan of care. The physician must base the plan of care on a risk assessment completed by the physician or by licensed, professional clinic staff. The assessment must be based on findings obtained through a health history, laboratory/screening services, and a physical examination. HHSC [~~The department~~ ] or its designee establishes the criteria for assessing the patient's risk. The level of services provided to the patient must be commensurate with the risk assessment. Services must be provided on site or through referral or other formal arrangement to patients experiencing a normal pregnancy and to patients whose pregnancy places them at risk.

(c) Covered services must be furnished on an outpatient basis by the physician or by licensed, professional clinic staff under the direction of the physician. The physician and professional clinic staff must be licensed by the state in which the services are rendered. Services provided by the professional clinic staff must be within staff's scope of practice or licensure as defined by state law.

(d) Covered clinic services include, but are not necessarily limited to, risk assessment, medical services, laboratory/screening services, case coordination/outreach, nutritional counseling, psychosocial counseling, family planning counseling, and patient education regarding maternal and child health.

(e) Although the physician does not necessarily have to be present at the clinic when covered services are provided, the physician must assume professional responsibility for the services provided at the clinic and must ensure through approval of the plan of care that the services are medically appropriate. The physician must spend as much time in the clinic as is necessary to ensure that patients are receiving services in a safe and efficient manner in accordance with accepted standards of medical practice.

(f) Clinics must have arrangements for referral of non-stress test (NST), sonography, and amniocentesis for high-risk patients.

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 January 25, 2024.

TRD-202400258

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

CHAPTER 366. MEDICAID ELIGIBILITY FOR WOMEN, CHILDREN, YOUTH, AND NEEDY FAMILIES

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §366.303, concerning Definitions, §366.325, concerning Medical Eligibility Effective Date, §366.827, concerning Medicaid Eligibility Effective Date, §366.1011, concerning Eligible Group, §366.1025, concerning Medicaid Eligibility Effective Dates, and §366.1031, concerning Eligibility Renewal.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Subchapter C, Pregnant Women's Medicaid

The proposed amendment to §366.303 aligns HHSC rule and policy with H.B. 12 by adding a new term, "change in circumstance," to the definitions and amending the definition of "continuous coverage." As amended, the end of a recipient's pregnancy no longer qualifies as an exception to continuous coverage and is removed from the definition. The "Texas Works Handbook" term is also amended to update the website address. Additionally, the "Medicaid" term is amended to capitalize the word "Chapter." The subparagraphs are renumbered to account for the addition of a term.

The proposed amendment to §366.325 aligns HHSC rule and policy with H.B. 12 by modifying §366.325(3). As amended, a Medicaid recipient will receive continuous Medicaid coverage for 12-months after the pregnancy ends. Additionally, "date" is pluralized in the rule and the title.

Subchapter H, Medically Needy Program

The proposed amendment to §366.827 pluralizes "date" in the rule title, adds "effective" in the first sentence of the rule, and adds paragraph (4) which provides that once a pregnant woman meets spend down, the pregnant woman is continuously eligible through her pregnancy and the end of the month in which the 12-month postpartum period ends and is not required to meet spend down again until the end of the 12-month postpartum period. This amendment aligns HHSC rule and policy with H.B. 12 requirements to provide continuous postpartum Medicaid coverage 12-months following the end of the woman's pregnancy. Additionally, this amendment aligns with federal requirements that an individual who attained Medicaid eligibility through a spenddown while pregnant is eligible for the extended postpartum coverage even if the individual does not have sufficient incurred medical or remedial care expenses to meet their spenddown in any subsequent budget period during the pregnancy or extended postpartum period.

Subchapter J, Former Foster Care Children's Program

The proposed amendment to §366.1011 modifies the eligibility requirement that a Former Foster Care Children's Program recipient must have been under the conservatorship of "this State" to "a State" to comply with Section 1002 of Public Law 115-271.

The proposed amendment to §366.1025 adds subsection (c) providing that a pregnant Former Foster Care Children's Program recipient remains continuously eligible through the end of the 12-month postpartum period. This amendment aligns this section with H.B. 12.

The proposed amendment to §366.1031 adds that a renewal will be conducted at the end of the 12-month postpartum period if the Former Foster Care Children's Program recipient is pregnant. This amendment aligns HHSC rule and policy with H.B. 12. Additionally, the organization of the rule is amended to include subsections.

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. Enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of local government.

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 result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

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

(6) the proposed rules will expand 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 rules' effect on the state's economy.

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

This rule implements required state statute and therefore HHSC has no regulatory flexibility in the implementation.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

Michelle Alletto, Chief Program and Services Officer, has determined that for each year of the first five years the rules are in effect, the public benefit will be additional months of Medicaid and CHIP coverage increasing access to health care in the postpartum period, potentially resulting in improved health outcomes for the women and better birth outcomes in subsequent pregnancies. There could potentially be cost savings to the state if women have access to Medicaid or CHIP rather than being uninsured.

Trey Wood has also determined that for the first five years the rules are in effect, persons who are required to comply with the proposed rules may incur economic costs to come into compliance with policy, procedure, training, and record-keeping requirements. HHSC lacks sufficient data to estimate costs to persons required to comply with the rules as proposed.

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER C. PREGNANT WOMEN'S MEDICAID

1 TAC §366.303, §366.325

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 provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas Human Resources Code §32.021(c), which provides the executive commissioner the authority to administer the federal medical assistance program in Texas and to establish methods of administration and adopt necessary rules for the proper and efficient operation of the medical assistance program.

The amendments affect Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Human Resources Code §32.024.

§366.303.Definitions.

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

(1) Applicant--A person seeking assistance under Pregnant Women's Medicaid who:

(A) has never received Medicaid and is not currently receiving Medicaid; or

(B) previously received Medicaid but subsequently was denied and reapplies for Medicaid.

(2) Authorized representative--A person or organization whom an applicant authorizes to apply for Medicaid benefits on behalf of the applicant.

(3) CFR--Code of Federal Regulations.

(4) Change in circumstance--A change in circumstance that may affect eligibility including:

(A) a change in household composition; or

(B) a change in categorical eligibility (e.g., aging out, eligibility conferred through the receipt of other program benefits).

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

(6) [~~(5)~~] Continuous coverage--Uninterrupted eligibility for the extent of the certification period regardless of any changes in circumstances, unless:

~~[(A) the recipient's pregnancy ends];~~

(A) [~~(B)~~] the recipient dies;

(B) [~~(C)~~] the recipient disenrolls voluntarily;

(D) [~~(E)~~] the state has erred in the eligibility determination; or

(E) [~~(F)~~] the recipient or [~~the~~ ] recipient's authorized representative has committed fraud, [~~abuse, or~~] perjury, or abuse.

(7) [~~(6)~~] Eligible group--A category of people who are eligible for Pregnant Women's Medicaid.

(8) [~~(7)~~] Federal Poverty Level (FPL)--The household income guidelines issued annually and published in the Federal Register by the United States Department of Health and Human Services.

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

(10) [~~(9)~~] Household composition--The group of individuals who are considered in determining eligibility for an applicant or recipient for certain medical programs based on tax status, tax relationships, living arrangements, and family relationships, referenced in 42 CFR §435.603(f) as "household."

(11) [~~(10)~~] Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act (42 U.S.C. §1396 et seq.) and Texas Human Resources Code Chapter [~~chapter~~] 32, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(12) [~~(11)~~] Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an applicant who is incompetent or incapacitated if the person is determined by HHSC to be acting responsibly on behalf of the applicant.

(13) [~~(12)~~] Recipient--A person receiving Pregnant Women's Medicaid services.

(14) [~~(13)~~] Retroactive coverage--Payment for Medicaid-reimbursable medical services received up to three months before the month of application.

(15) [~~(14)~~] Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for Supplemental Nutrition Assistance Program (SNAP) food benefits, Temporary Assistance for Needy Families (TANF), the Children's Health Insurance Program (CHIP), and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at https://www.hhs.texas.gov/handbooks/texas-works-handbook [~~www.dads.state.tx.us/handbooks/TexasWorks~~].

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

(17) [~~(16)~~] U.S.C.--United States Code.

§366.325.Medical Eligibility Effective Dates [~~Date~~].

HHSC determines the Medicaid eligibility effective dates [~~date~~] for an applicant as follows.[:]

(1) Medicaid coverage begins on the earliest day of the application month on which the applicant meets all eligibility criteria.

(2) Retroactive coverage may begin as early as three months before the application month.

(3) A recipient's [~~recipient has continuous~~ ] coverage for Medicaid remains effective through the twelfth [~~second~~] month after the pregnancy ends [~~terminates~~].

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 January 25, 2024.

TRD-202400259

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

SUBCHAPTER H. MEDICALLY NEEDY PROGRAM

1 TAC §366.827

STATUTORY AUTHORITY

The amendment affects Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Human Resources Code §32.024.

§366.827.Medicaid Eligibility Effective Dates [~~Date~~].

HHSC determines Medicaid eligibility effective dates for an applicant as follows. [:]

(1) Medicaid coverage begins on the earliest day of the application month on which the applicant meets all eligibility criteria.

(2) Retroactive coverage may begin as early as three months before the application month.

(3) The Medicaid coverage of an applicant whose household income, as calculated under §366.1113 of this chapter (relating to Calculation of Household Income), exceeds the Medically Needy Income Limits (MNIL) may spend down the excess amount of income to pay unpaid medical bills and qualify for Medicaid. Medicaid begins on the earliest day of the month of potential eligibility on which spend down requirements are met.

(4) Once a pregnant woman meets spend down, she remains continuously eligible through her pregnancy and the end of the month in which the 12-month postpartum period ends and is not required to meet spend down again until the end of her 12-month postpartum period.

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 January 25, 2024.

TRD-202400263

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

SUBCHAPTER J. FORMER FOSTER CARE CHILDREN'S PROGRAM

1 TAC §§366.1011, 366.1025, 366.1031

STATUTORY AUTHORITY

The amendments affect Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Human Resources Code §32.024.

§366.1011.Eligible Group.

To be eligible for the Former Foster Care Children's Program, a person must:

(1) have been under the conservatorship of a [~~of this~~] State upon attaining age 18;

(2) have received Medicaid at the time he or she left foster care; and

(3) be 18 to 25 years of age (coverage continues through the month of his or her 26th birthday).

§366.1025.Medicaid Eligibility Effective Dates.

(a) Medicaid eligibility begins the first month the person meets all eligibility criteria as long as the person is not eligible for and receiving other Medicaid coverage.

(b) A person eligible for the Former Foster Care Children's Program is also eligible for retroactive coverage but no earlier than January 1, 2014.

(c) A pregnant recipient in the Former Foster Care Children's Program remains continuously eligible through the duration of the member's pregnancy and the end of the 12-month postpartum period.

§366.1031.Eligibility Renewal.

(a) At 12 months, HHSC determines whether the recipient is still eligible to receive Medicaid coverage.

(b) If the recipient is pregnant and eligible to receive continuous eligibility, a renewal review will be conducted at the end of the recipient's 12-month postpartum period to determine if the individual is still eligible to receive Medicaid coverage.

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 January 25, 2024.

TRD-202400264

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

CHAPTER 370. STATE CHILDREN'S HEALTH INSURANCE PROGRAM

The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes amendments to §370.42, concerning Age Limits, §370.49, concerning Medicaid Referrals for Pregnant CHIP Members, §370.60, concerning Renewal, and §370.307, concerning Continuous Enrollment Period.

BACKGROUND AND PURPOSE

SECTION-BY-SECTION SUMMARY

Subchapter B, Application Screening, Referral, Processing, Renewal, and Disenrollment; Division 4, Eligibility Criteria

The proposed amendment to §370.42 adds subsection (b) to state that a pregnant CHIP member is eligible to receive CHIP for 12-months following the end of the pregnancy even if the CHIP member reaches age nineteen.

The proposed amendment to §370.49 retitles the name of the rule to "Pregnant CHIP Members," removes information about Medicaid referrals for pregnant CHIP members and modifies CHIP member's eligibility from two-months to the 12th month following the end of the member's pregnancy to align this section with H.B. 12. Additionally, new paragraph (2) is added to provide that if a CHIP member voluntarily elects to end their CHIP enrollment during the postpartum period, the member will no longer be eligible to receive continuous eligibility for the remainder of the member's postpartum period. The rule text is also amended to the singular.

Subchapter B, Application Screening, Referral, Processing, Renewal, and Disenrollment; Division 6, Renewal Process

The proposed amendment to §370.60 adds subsection (b) that a renewal will be conducted at the end of the 12-month postpartum period if the CHIP member is pregnant. Additionally, subsection (a) is amended to replace the term "recipient" with "member."

Subchapter C, Enrollment, Renewal, Disenrollment, and Cost Sharing; Division 1, Enrollment and Disenrollment

The proposed amendment to §370.307 adds subsection (b) stating that a pregnant member enrolled in CHIP is eligible to receive coverage until the end of the postpartum period even if they turn age nineteen and modifies the exceptions to the continuous enrollment period in CHIP by removing current (b)(3), (b)(7), and (b)(10), and adding (b)(8). The subparagraphs are renumbered to account for the removal.

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. Enforcing or administering the rules do not have foreseeable implications relating to costs or revenues of local government.

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 result in no assumed change in future legislative appropriations;

(4) the proposed rules will not affect fees paid to HHSC;

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

(6) the proposed rules will expand 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 rules' effect on the state's economy.

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

This rule implements required state statute and therefore HHSC has no regulatory flexibility in the implementation.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

PUBLIC BENEFIT AND COSTS

TAKINGS IMPACT ASSESSMENT

PUBLIC COMMENT

SUBCHAPTER B. APPLICATION SCREENING, REFERRAL, PROCESSING, RENEWAL, AND DISENROLLMENT

DIVISION 4. ELIGIBILITY CRITERIA

1 TAC §370.42, §370.49

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 provides the Executive Commission with broad rulemaking authority; and Texas Health and Safety Code Chapters 62 and 63, which provide HHSC with the authority to administer CHIP in Texas and adopt rules as necessary to implement the chapters.

The amendments affect Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Health and Safety Code Chapters 62 and 63.

§370.42.Age Limits.

(a) A child can be eligible for CHIP from the day the child is born until the end of the month in which the child reaches age nineteen.

(b) A pregnant CHIP member is eligible to receive coverage until the end of their 12-month postpartum period even if the member turns nineteen years old.

§370.49.Pregnant CHIP Members [~~Medicaid Referrals for Pregnant CHIP Members~~].

A pregnant [~~Pregnant~~] CHIP member [~~members~~] may be determined eligible for Medicaid [~~referred for a Medicaid eligibility determination~~]. A [~~Those~~ ] pregnant CHIP member [~~members~~] who is [~~are~~] determined to be Medicaid eligible will be disenrolled from CHIP. Medicaid coverage will be coordinated to begin when CHIP enrollment ends to avoid gaps in health care coverage. In the event HHSC or its designee remains unaware of a member's pregnancy until delivery, the delivery will be covered by CHIP. HHSC or its designee will set the mother's eligibility expiration date at the later of:

(1) the end of the twelfth [~~second~~] month after [~~following~~] the end of a [~~month of the baby's birth or the~~] pregnancy [~~termination~~]; or

(2) if the CHIP member voluntarily elects to end the member's CHIP enrollment during the member's extended postpartum period, the individual is not eligible to receive continuous eligibility in Medicaid for the remainder of the member's 12-month postpartum period.

~~[(2) the date when the mother's eligibility would have expired.]~~

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 January 25, 2024.

TRD-202400260

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

DIVISION 6. RENEWAL PROCESS

1 TAC §370.60

STATUTORY AUTHORITY

The amendment is 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 provides the Executive Commission with broad rulemaking authority; and Texas Health and Safety Code Chapters 62 and 63, which provide HHSC with the authority to administer CHIP in Texas and adopt rules as necessary to implement the chapters.

The amendment affects Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Health and Safety Code Chapters 62 and 63.

§370.60.Renewal.

(a) Every 12 months, HHSC redetermines if the member [~~recipient~~] is still eligible to receive CHIP services.

(b) If the CHIP member is pregnant and eligible to receive continuous eligibility, a renewal will be conducted at the end of the recipient's 12-month postpartum period.

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 January 25, 2024.

TRD-202400261

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621

SUBCHAPTER C. ENROLLMENT, RENEWAL, DISENROLLMENT, AND COST SHARING

DIVISION 1. ENROLLMENT AND DISENROLLMENT

1 TAC §370.307

STATUTORY AUTHORITY

The amendment is 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 provides the Executive Commission with broad rulemaking authority; and Texas Health and Safety Code Chapters 62 and 63, which provide HHSC with the authority to administer CHIP in Texas and adopt rules as necessary to implement the chapters.

The amendment affects Texas Government Code §531.0055, Texas Government Code §531.033, and Texas Health and Safety Code Chapters 62 and 63.

§370.307.Continuous Enrollment Period.

(a) CHIP enrollment always begins on the first calendar day of the month and continues for a period up to 12 consecutive months.

(b) A pregnant CHIP member is eligible to receive coverage until the end of the member's 12-month postpartum period even if the member turns nineteen years old.

(1) a sibling member in the home has an earlier initial date of coverage, in which case the coverage period for the newly enrolled child will be the remaining period of coverage of the already enrolled sibling;

(2) aging out when the member turns 19;

~~[(3) change in health or dental insurance status (parent acquires employer coverage);]~~

(3) [~~(4)~~] family moves out of state;

(4) [~~(5)~~] death of the member;

(5) [~~(6)~~] data match reveals member is enrolled in both CHIP and Medicaid;

~~[(7) notification of member's pregnancy;]~~

(6) [~~(8)~~] failure to drop current health insurance if member was determined to be CHIP-eligible due to the 10 percent rule regarding the cost of the current insurance;

(7) [~~(9)~~] direction by HHSC based on evidence that the member's original eligibility determination was incorrect; or

(8) child becomes eligible for Medicaid.

~~[(10) member becomes a resident of an institution as defined in 42 C.F.R §457.310(c)(2).]~~

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 January 25, 2024.

TRD-202400262

Karen Ray

Chief Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: March 10, 2024

For further information, please call: (512) 206-4621