PART 1. COMPTROLLER OF PUBLIC ACCOUNTS
CHAPTER 16. COMPTROLLER GRANT PROGRAMS
SUBCHAPTER C. TEXAS OPIOID ABATEMENT FUND PROGRAM
The Comptroller of Public Accounts adopts new §16.200, concerning definitions, §16.201, concerning opioid abatement strategies, §16.202, concerning grant issuance plan, §16.203, concerning notice and applications, §16.204, concerning availability of funds, §16.205, concerning engage in business in Texas, §16.206, concerning peer review panel members, §16.207, concerning authorized officials, §16.208, concerning grant application review, §16.209, concerning amount of grant award, §16.210, concerning financial responsibility, §16.211, concerning allowable costs; disbursement of grant funds, §16.212, concerning grant requirements, §16.213, concerning use of council's grant management system, §16.214, concerning code of ethics, §16.215, concerning reporting, §16.216, concerning grant reduction or termination, §16.217, concerning extensions, §16.218 concerning noncompliance, §16.219, concerning monitoring grant award performance and expenditures, §16.220, concerning records retention; audit, §16.221, concerning forms and other documents, and §16.222, concerning references, with changes to the proposed text as published in the April 7, 2023, issue of the Texas Register (48 TexReg 1811). The rules will be republished.
These rules will be located in 34 Texas Administrative Code, Chapter 16, new Subchapter C (Texas Opioid Abatement Fund Program). Additionally, the title of Chapter 16 will be changed from "Broadband Development" to "Comptroller Grant Programs" to allow these rules to be included in Chapter 16 along with the broadband development rules.
Section 16.200 provides definitions.
Section 16.201 describes the council's process for determining and approving opioid abatement strategies that are eligible for grant funding, and for categorizing and prioritizing each strategy.
Section 16.202 describes the council's process for adopting a grant issuance plan that allocates grant funds among one or more grant cycles. The council will establish various grant cycles based on the categories established in §16.201 and will describe the details of each cycle. This section also incorporates the regional allocations as provided by the 87th Legislative Session, General Appropriations Act, article IX, §17.18(b).
Section 16.203 requires a notice of funding availability (NOFA) to be published, as necessary, on the Texas.gov eGrants website and the comptroller's website, and describes the information that may be included in a NOFA. The section also describes grant application requirements.
Section 16.204 states that grant funding is contingent upon the availability of funds and upon approval of a grant application by the council, and that neither the rules nor a grant agreement create any right to receive a grant award.
Section 16.205 requires grant recipients to be engaged in business in Texas.
Section 16.206 allows the council to select and compensate individuals who live and work outside the state of Texas to serve as peer review panel members for purposes of a peer review analysis for each grant application, unless a special need justifies selecting one or more individuals living and working in Texas. This panel will minimize the potential for conflicts of interest in the peer review of grant applications. This section requires a peer review panel member who has a present relationship with, or has received or will receive any benefit from, a grant applicant to disclose this relationship or benefit. This section also prohibits a member from reviewing a grant application of a grant applicant if such a relationship or benefit exists.
Section 16.207 requires each grant applicant to designate a person to act on behalf of the grant applicant.
Section 16.208 describes the process for reviewing grant applications. Program staff will review the applications during an initial screening to determine compliance with the necessary administrative requirements. Then grant applications will be scored by the peer review panel members. The council will make the final decision on all grant awards based on the council's review and the information provided by peer review panel members.
Section 16.209 establishes the council as the sole entity permitted to set the grant award amount and establishes that the council is not required to fund any grant at the amount the grant applicant requests.
Section 16.210 requires the grant recipient to manage the day-to-day operations and activities of the grant and to maintain a sound financial management system to account for the grant award funds.
Section 16.211 requires costs to be reasonable and necessary for the proper and efficient performance and administration of the grant project and requires grant funds to be disbursed on a reimbursement basis.
Section 16.212 details grant requirements, including compliance with the provisions outlined in the grant agreement and state and federal law. This section also establishes the grant recipient as the entity legally and financially responsible for compliance with the grant agreement and state and federal law, and prohibits grant funds from being used for costs that will be reimbursed by another funding source.
Section 16.213 explains how the grant applicant or grant recipient's use of the electronic grant management system requires certain affirmations, including that the information submitted is true and correct and that the signatures are valid.
Section 16.214 requires all council members, peer review panel members, and program staff members to avoid acts which are improper or give the appearance of impropriety in the disposition of grant funds. This section also requires the council to adopt a code ethics to provide guidance related to the ethical conduct of the council members, peer review panel members, and program staff. The code of ethics will be distributed to each council member, peer review panel member, and program staff member.
Section 16.215 requires grant recipients to submit periodic reporting in accordance with the grant agreement. This section also authorizes the director, upon reasonable notice, to request any additional information necessary to show that grant funds are being used for the intended purpose and that the grant recipient has complied with the grant agreement.
Section 16.216 allows the council to reduce or terminate a grant award based on circumstances described in this section.
Section 16.217 allows the council to approve no cost time extensions for a grant recipient requesting additional time to complete a grant project.
Section 16.218 allows the council to hold a grant recipient accountable for noncompliance with the grant agreement and any applicable law, and sets forth the penalties for noncompliance.
Section 16.219 requires the council to monitor grant awards to ensure compliance and proper stewardship of grant award funds.
Section 16.220 requires grant recipients to maintain all records regarding the grant project and provides records retention and audit review requirements.
Section 16.221 authorizes the council to prescribe forms or other documents necessary for the implementation of this program and to require these forms or other documents to be submitted electronically.
Section 16.222 specifies which subchapter in Government Code, Chapter 403 applies to this program because Chapter 403 contains two subchapters entitled "Subchapter R."
Comments were received regarding adoption of the amendments from Joe Powell, President/CEO at the Association of Persons Affected by Addiction; Ed Sinclair at SAS; Preston Poole, Policy Coordinator at the Texas Association of Community Health Centers; Elizabeth Henry, Substance Use Disorder (SUD) Workgroup Chair at the Texas Coalition for Healthy Minds; John Henderson, CEO at the Texas Organization of Rural and Community Hospitals; and Katharine Neill Harris, Ph.D., of the Drug Policy Program at the Rice University Baker Institute for Public Policy.
Joe Powell, President/CEO at the Association of Persons Affected by Addiction, states that it appears that the council has not identified allocation strategies to support underserved communities. He recommends that the council consider allocating funding to target communities of color, which most often have higher addiction and overdose rates resulting from low access to services, support, and resources. Mr. Powell proposes two possible options for doing so. First, in cases where larger organizations are funded to serve in those communities, the council could include a provision in the grant opportunity that requires the organization to subcontract with smaller organizations, if available, which are often already providing the same or similar services in underserved communities and are trusted by residents in those communities. Second, the council could include funding opportunities for a consortium of organizations in underserved communities to leverage the strength of the trusted resources that already exist in the community. According to Mr. Powell, by including funding for these organizations around capacity building and sustainability planning, the council would strengthen and equip the community with long term support and resources necessary to address the opioid crisis in underserved communities.
The council thanks Mr. Powell for engaging on this important issue that merits further discussion and consideration as the program is implemented. The council notes that §16.201 requires the council to adopt evidence-based strategies, §16.202 authorizes the council to set parameters for each grant cycle including limitations to geographic areas or strategies based on opioid incidence information, and §16.203 authorizes a NOFA to include criteria such as those suggested by Mr. Powell. Therefore, the council does not believe a change to the proposed rules is necessary based on this comment.
Ed Sinclair at SAS recommends adding language to §16.213 and §16.215 to allow the director of the council, upon reasonable notice, to request, gather and evaluate data from grantees regarding the outcomes and any identified barriers to substance use disorder (SUD) prevention and treatment programs and recovery services in order to determine which populations are not being reached in current interventions as well as which geographic areas of the state have programmatic gaps in addressing SUD. Specifically, Mr. Sinclair proposes adding language to §16.213 stating that by utilizing the council's electronic grant management system, a grant applicant or grant recipient "{a}grees that all requested data and performance metrics will be submitted in the agreed upon, standard format and frequency." He also suggests adding language to §16.215 stating that "{t}his section authorizes the council to develop standardized grant reporting metrics for all grantees to submit data measuring the impact of the opioid crisis at the county level," which could include reporting on outcomes and barriers to substance use disorder prevention and treatment programs and recovery services for the purpose of understanding underserved geographic areas. Mr. Sinclair also provides a sample reporting metric template (OMB1 No. 0930-0391, SAMSHA, Center for Substance Abuse Prevention, Harm Reduction Annual Targets and Quarterly Progress Report).
The council appreciates the comments provided by Mr. Sinclair, but declines to revise the proposed rules in response to the comments because the council already has authority to require grant recipients to provide this information under §16.215(a), which states that "{g}rant recipients must submit to a program staff member designated by the director periodic reports for each funded grant project for the duration of the grant agreement," and further authorizes the program to determine the frequency, format and requirements of the report. The council may also include such requirements in the grant agreement.
Preston Poole, Policy Coordinator at the Texas Association of Community Health Centers, recommends that the council either ensure that a member of the peer review panel has a background from a federally qualified health center (FQHC) or that the peer review panel hold a permanent position for a member from a FQHC, due to the unique offerings of health centers, including use of evidence-based trauma-informed training and practices to successfully work upstream to address opioid use disorders.
The council appreciates the input provided by Mr. Poole, but declines to revise the proposed rules in response to the comments described above because, under §16.206, the council may consider specific experience when selecting peer review panel members, including a person with a FQHC background. Additionally, the council will consider how the specific experiences of the peer review panel affect any ethical issues, specifically recusal and/or ability to apply for grants.
Mr. Poole also recommends that the council consider prioritizing the needs of marginalized communities as one of the defined factors for permanent consideration when selecting applications for award as listed in §16.208(d)(3).
The council notes that §16.202 authorizes the council to set parameters for each grant cycle including limitations to geographic areas or strategies based on opioid incidence information, and §16.203 authorizes a NOFA to include additional criteria. Therefore, the council declines to revise the proposed rules in response to this comment.
Elizabeth Henry, SUD Workgroup Chair at the Texas Coalition for Healthy Minds, recommends realigning the core strategies listed in §16.201(b) with the continuum of care. She proposes placing treatment and recovery into separate strategies because they serve different purposes. According to Ms. Henry, treatment and recovery should be separated into different strategies to ensure that the strategies complement each other rather than compete against each other so that funding is applied in a more equitable manner when the priority ranking of activities has begun. As a result, she proposes changing the strategies to prevention and public safety training, treatment and coordination of care, and recovery support services.
The council appreciates the comments provided by Ms. Henry. In response to the comments described above, the council revises the proposed rules to place treatment and recovery into separate strategies and realign the core strategies by changing the strategies in §16.201(b) to treatment and coordination of care, prevention and public safety, recovery support services, and workforce development and training.
Ms. Henry also recommends that the council prioritize funding for organizations established in Texas by changing the language in §16.205(a) to require organizations to be previously established in Texas for at least two years before being eligible to receive abatement funds, to consider if the funds are the sole source of funding for the organization's program in Texas, and to give preference to organizations and programs already established in the state. According to Ms. Henry, this change would support existing organizations in Texas, which understand the unique culture and needs of Texans, and help build out and support new and existing infrastructure to promote the sustainability of SUD services across the state.
The council declines to revise the proposed rules in response to this comment because the council has authority to include this recommendation in a NOFA under §16.203 to further implement the requirements established under §16.205, and has authority to consider this recommendation when evaluating an applicant's experience under §16.208.
John Henderson, CEO at the Texas Organization of Rural and Community Hospitals, recommends rural stakeholders have a seat at the table throughout the process because of the degree of harmful impact of opioids in their communities. He also recommends that peer review panel members described in §16.206, who may reside outside the state, understand the scale and scope of rural Texas to fairly evaluate grant applications.
The council appreciates the input provided by Mr. Henderson. No revisions to the proposed rules are required at this time in response to the comments described above because the council may consider including a rural stakeholder or a person who understands the scale and scope of rural Texas on the peer review panel when the council selects the peer review panel members or through other evolving community engagement by the council.
Mr. Henderson recommends that the council distribute funds to strategies under §16.202(c) quickly and allow for all of the categories to be considered for funding within the same grant cycle.
In response to this comment, the council revises proposed §16.202 to allow grant awards made each grant cycle to include one or more of the categories listed in §16.201(b), instead of only one category. This revision will assist the council to fund strategies more quickly.
Mr. Henderson recommends that the council prioritize treatment and recovery activities when ranking each strategy in order of priority for grant funding under §16.201(c).
No revisions to the proposed rules are required at this time in response to this comment because this recommendation may be considered when the council ranks each strategy in order of priority for grant funding under §16.201(c) or §16.202 in the grant issuance plan.
Mr. Henderson recommends that the council establish a more definite process before funds are reallocated under Government Code, §403.509, such as a second round look at grant applications. He urges a process to ensure funds are allocated fairly and allow a region to get every opportunity to use its allocation before funds are redistributed to another region.
The council declines to revise the proposed rules in response to these comments because the process for reallocating funds under Government Code, §403.509 was not addressed in the proposed rules. The council may consider addressing this recommendation in a future rulemaking.
Dr. Katharine Neill Harris of the Drug Policy Program at the Rice University Baker Institute for Public Policy states that it is not clear what criteria will be used to prioritize the strategies, though she assumes prioritization will vary with different grant opportunities.
The council appreciates the comments provided by Dr. Harris. No revisions to the proposed rules are required at this time in response to the comment described above. The NOFA will include the requirements of the grant project.
Dr. Harris recommends adding "growth potential for small organizations" to the list of factors that the council may consider in making grant awards under §16.208(d)(3)(B). She states that an organization's potential for growth, particularly in areas with large gaps in available services, should be a factor considered in grant award decisions. Dr. Harris believes that, although this could fall under the "additional factors" umbrella category, it is less likely to be considered if it is not explicitly mentioned. According to Dr, Harris, providing funds to expand the operational potential of organizations in the low-barrier, harm-reduction service space, which are typically small in staff size and budgets, has the strong potential to improve the state's overdose response because they often have an outsized impact on the vulnerable populations they serve.
The council notes that §16.201 requires the council to adopt evidence-based strategies, §16.202 authorizes the council to set parameters for each grant cycle including limitations to geographic areas or strategies based on opioid incidence information, and §16.203 authorizes a NOFA to include additional criteria. The council declines to revise the proposed rules in response to these comments because this factor may be considered by the council when the council proposes a NOFA for a grant funding opportunity.
Dr. Harris also provides additional comments related to eligible strategies. First, she recommends that the council closely follow its requirement that eligible strategies be supported with evidence-based data under §16.201(a)(2). Second, she recommends that strategies that do not have a strong evidence base should be categorized as a low priority, if they are categorized at all. Third, Dr. Harris recommends that the council be flexible when reviewing and amending eligible strategies under §16.201(d) because new developments in the overdose crisis, as well as stakeholder experiences and input, will demonstrate the need for different strategies or different strategy prioritization. Fourth, she recommends that the council provide sufficient periods of time between a request for proposals and proposal deadline and provide flexibility or assistance with the application process to increase the ability of smaller, majority volunteer-based organizations, which are less likely to have staff dedicated to applying for grants, to meet all grant requirements.
No revisions to the proposed rules are required at this time in response to these comments. The council will follow the requirements of §16.201(a)(2) and §16.202 and has authority under the rules to consider Dr. Harris's recommendations as they proceed through the grant process.
Although the comptroller submits these amendments as the presiding officer of the council under Government Code, §403.503(b)(6), and pursuant to the comptroller's duty to provide the staff necessary to assist the council in performing its duties under Government Code, §403.503(e), the amendments are adopted by the council under Government Code, §403.511, which authorizes the council to adopt rules to implement Government Code, Chapter 403, Subchapter R, as added by 87th Legislature, 2021, R.S., Chapter 781 (Senate Bill 1827), §1, concerning the statewide opioid settlement agreement.
The amendments implement Government Code, Chapter 403, Subchapter R, as added by 87th Legislature, 2021, R.S., Chapter 781 (Senate Bill 1827), §1, concerning the statewide opioid settlement agreement.
§16.200.Definitions.
The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Authorized official--The individual, including designated alternates, named by a grant applicant or grant recipient, who is authorized to act for the grant applicant or grant recipient in submitting the grant application and executing the grant agreement and associated documents or requests.
(2) Comptroller--The Texas Comptroller of Public Accounts.
(3) Council--The Texas Opioid Abatement Fund Council established by Government Code, §403.503, to manage the distribution of money allocated to the council from the Opioid Abatement Trust Fund, established by Government Code, §403.506 in accordance with a statewide opioid settlement agreement. A reference in this subchapter to the council includes the director and program staff members unless the provision indicates otherwise.
(4) Council member--A member of the council.
(5) Director--The program staff member designated by the comptroller to serve as the director for the council who performs duties as necessary to manage the day-to-day operations of the council.
(6) Grant agreement--A legal agreement executed by a grant recipient and the director, on behalf of the council, setting forth the terms and conditions for a grant award approved by the council.
(7) Grant applicant--A person or entity that has submitted through an authorized official an application for a grant award under this subchapter.
(8) Grant application--A written proposal submitted by a grant applicant to the director in the form required by the council that, if successful, will result in a grant award.
(9) Grant award--Funding awarded by the council pursuant to a grant agreement providing money to the grant recipient to carry out a grant project in accordance with statutes, rules, regulations, and guidance provided by the council.
(10) Grant recipient--A grant applicant that receives a grant award under this subchapter.
(11) NOFA--Notice of funding availability.
(12) Peer review--The review process performed by the peer review panel and used to provide guidance and recommendations to the council in making decisions for grant awards. The process involves the consistent application of standards and procedures to produce a fair, equitable, and objective evaluation of grant applications, based on the evidence-based opioid abatement strategies developed by the council under Government Code, §403.509, as well as other relevant requirements of the NOFA and the grant application.
(13) Peer review panel--A group of experts in the field of opioid abatement who are selected to conduct peer review of grant applications.
(14) Peer review panel member--A member of the peer review panel.
(15) Program staff member--A member of the comptroller's staff assigned by the comptroller to provide assistance to the council. This term includes the director.
(16) Statewide opioid settlement agreement--A settlement agreement and related documents entered into by this state through the attorney general, political subdivisions that have brought a civil action for an opioid-related harm claim against an opioid manufacturer, distributor, or retailer, and opioid manufacturers, distributors, or retailers relating to illegal conduct in the marketing, promotion, sale, distribution, and dispensation of opioids that provide relief for this state and political subdivisions of this state.
§16.201.Opioid Abatement Strategies.
(a) The council shall determine and approve one or more evidence-based opioid abatement strategies that are eligible for grant funding. To be approved as eligible for funding, a strategy must be:
(1) an opioid abatement strategy provided in the opioid abatement settlement agreements;
(2) supported with evidence-based data; and
(3) in compliance with all applicable state and federal law.
(b) For each strategy approved as an eligible strategy, the council shall categorize the strategy as:
(1) treatment and coordination of care;
(2) prevention and public safety;
(3) recovery support services; or
(4) workforce development and training.
(c) Within each category, the council shall rank each strategy in order of priority for grant funding.
(d) The council may, from time to time, review and amend the list of eligible strategies, the categorization of strategies, or the ranking of strategies within each category.
§16.202.Grant Issuance Plan.
(a) The council shall adopt a grant issuance plan that allocates grant funds among one or more grant cycles.
(b) The grant issuance plan shall include:
(1) the number and order of grant cycles;
(2) the category or categories, and one or more eligible strategies within each category, that will be eligible for grant funding during each grant cycle;
(3) the amount of grant funds allocated to each grant cycle;
(4) the parameters for the regional component of each grant cycle;
(5) the parameters for the targeted intervention component of each grant cycle; and
(6) any other information necessary to implement the grant issuance plan, such as any matching or volunteer requirements, any limitations to the types of eligible applicants, or other requirements.
(c) Grant awards made each grant cycle will include one or more of the categories listed in §16.201(b) of this subchapter.
(d) The council shall designate one or more eligible strategies within each category for each grant cycle in accordance with the priority ranking adopted under §16.201(c) of this subchapter.
(e) Each grant cycle will be divided into two main funding components:
(1) Of the funds allocated to a grant cycle, 75% shall be allocated among the regional healthcare partnership regions using the following regional allocations:
(A) Each region's allocation will be determined using the following regional allocations:
(i) 5.515633% allocated to region 1.
(ii) 7.813739% allocated to region 2.
(iii) 17.455365% allocated to region 3.
(iv) 3.902955% allocated to region 4.
(v) 2.542550% allocated to region 5.
(vi) 9.845317% allocated to region 6.
(vii) 7.285670% allocated to region 7.
(viii) 3.495025% allocated to region 8.
(ix) 9.594819% allocated to region 9.
(x) 9.457202% allocated to region 10.
(xi) 1.372268% allocated to region 11.
(xii) 3.390769% allocated to region 12.
(xiii) 0.749727% allocated to region 13.
(xiv) 1.749546% allocated to region 14.
(xv) 2.596578% allocated to region 15.
(xvi) 1.363928% allocated to region 16.
(xvii) 3.325101% allocated to region 17.
(xviii) 5.741368% allocated to region 18.
(xix) 1.827600% allocated to region 19.
(xx) 0.974842% allocated to region 20.
(B) Within each region and provided there are a sufficient number of eligible grant applicants, no single grant recipient will receive 100% of the funds allocated to a respective region.
(2) Of the funds allocated to a grant cycle, 25% shall be allocated for targeted interventions. The council shall establish parameters for the authorized uses of the targeted intervention component of each grant cycle.
(A) The parameters may include:
(i) a limitation to one or more geographic areas based on opioid incidence information; and
(ii) a limitation to one or more eligible strategies based on opioid incidence information.
(B) The council shall rank the parameters relating to geographic areas and eligible strategies in order of priority for grant funding. For example, if the council limits targeted intervention grants to, in order of priority, locations A, B, C, and D and to, in order of priority, strategies X and Y, the council shall also specify whether a grant application from location A for strategy Y is a higher priority than a grant application from location B for strategy X.
(f) The council may, from time to time, review and amend the grant issuance plan.
§16.203.Notice and Applications.
(a) For each grant cycle in the grant issuance plan adopted under §16.202 of this subchapter, the council shall, as necessary, publish a NOFA on the Texas.gov eGrants website and the comptroller's website.
(b) The NOFA may include:
(1) the amount of grant funds available for grant awards for each regional healthcare partnership region under the regional component;
(2) the amount of grant funds available for grant awards and any limitations on the number of grant awards under the targeted intervention component;
(3) the strategy or strategies that are eligible for grant funding and the order of priority for grant funding;
(4) the minimum and maximum amount of grant funds available for each grant application;
(5) limitations on the geographic distribution of grant funds under the regional component and under the targeted intervention component;
(6) eligibility requirements;
(7) grant application requirements;
(8) grant award and evaluation criteria;
(9) the date by which grant applications must be submitted to the council;
(10) the anticipated date of grant awards;
(11) any preferred criteria relevant to the grant application;
(12) parameters for allowable costs reimbursable under the grant awards; and
(13) any other necessary information.
(c) All grant applications submitted under this subchapter must comply with the requirements contained in this subchapter and in the relevant NOFA published by the council.
(d) Grant applicants must apply for a grant award using the procedures, forms, and certifications prescribed by the council.
(e) During the review of a grant application, a program staff member may require a grant applicant to submit additional information necessary to complete the review. Such requests for information do not serve as notice that the council intends to fund a grant application; however, failure to respond to requests for additional information may impact the ability to review and evaluate the grant application.
(f) Grant applications shall:
(1) seek to remediate the opioid crisis in this state by using efficient and cost-effective methods that are directed to regions of this state experiencing opioid-related harms; and
(2) satisfy the requirements set forth in this subchapter; Government Code, Chapter 403, Subchapter R; and the relevant NOFA published by the council.
§16.204.Availability of Funds.
All grant funding is contingent upon the availability of funds and upon approval of a grant application by the council. Neither this subsection nor a grant agreement creates any entitlement or right to grant funds by a grant applicant.
§16.205.Engage in Business in Texas.
(a) Except as addressed by a NOFA, to be eligible to receive a grant award, a grant applicant must engage in business in the state of Texas by:
(1) maintaining employees in the state of Texas;
(2) having a fixed place of business in the state of Texas; or
(3) providing any service in the state of Texas, whether or not the individuals performing the service are residents of the state.
(b) Grant applicants responding to a NOFA may be located outside the state of Texas when the grant application is submitted and reviewed; however, the grant applicant must demonstrate that it engages in business in the state of Texas as a condition of the grant award.
(c) A grant recipient's failure to engage in business in the state of Texas is a violation of these rules for the purpose of §16.218 of this subchapter.
§16.206.Peer Review Panel Members.
(a) To minimize the potential for conflicts of interest in the peer review of grant applications, the council may select and compensate individuals who live and work outside of the state of Texas to serve as peer review panel members, unless a special need justifies selecting one or more individuals living or working in Texas.
(b) If an individual who lives or works in Texas is selected to serve as a peer review panel member, the director must provide an explanation of the special need and how any potential for conflict of interest will be mitigated to the council at the time the peer review panel member is selected.
(c) A peer review panel member shall immediately disclose to the director a present relationship with a grant applicant or any benefit the peer review panel member has received or knows the member will receive from a grant applicant.
(d) A peer review panel member who has a present relationship with a grant applicant, or has received or knows the member will receive any benefit from a grant applicant, may not review that grant application.
§16.207.Authorized Officials.
(a) Each grant applicant must designate an authorized official and must submit to the director:
(1) a resolution from the grant applicant's governing body that, at a minimum, designates an authorized official to act on the grant applicant's behalf and authorizes the authorized official to submit a grant application;
(2) the authorized official's title, mailing address, telephone number, and email address; and
(3) the grant applicant's physical address.
(b) A grant applicant or grant recipient must notify the director as soon as practicable of any change in the information provided under subsection (a) of this section. If there is a change of authorized official, a grant applicant or grant recipient must also submit to the director a new resolution from the grant applicant's governing body that, at a minimum, designates an authorized official to act on the grant applicant's behalf.
§16.208.Grant Application Review.
(a) The grant application review process shall consist of three steps:
(1) initial screening;
(2) peer review; and
(3) council review and approval.
(b) Initial screening.
(1) Program staff members shall review each grant application to determine whether the grant application complies with the requirements contained in this subchapter and the relevant NOFA published by the council. Grant applications that do not meet these requirements will not be eligible for review under this section.
(2) A program staff member shall submit each grant application that meets the requirements described in subsection (b)(1) of this section to the peer review panel for review.
(c) Peer review.
(1) Peer review panel members shall review each grant application that is submitted for review by program staff as described in subsection (b)(2) of this section.
(2) Peer review panel members shall assign a score for the application based on the application's merit and accounting for the criteria in the relevant NOFA published by the council, and shall submit this information to a program staff member.
(3) If a peer review panel member recommends changes to the grant funds amount requested by the grant applicant or to the goals and objectives or timeline for the proposed grant project, the recommended changes and explanation shall be submitted to a program staff member.
(4) The peer review panel's scores, rankings and other information submitted for the council's consideration are recommendations and are advisory only.
(d) Council review and approval.
(1) After receipt of the peer review scores and recommendations described in subsection (c) of this section, program staff members shall compile a list of grant applications reviewed by the peer review panel ranked in order by the final overall evaluation score. The final evaluation score is determined by averaging together the scores assigned by the peer review panel members under subsection (c)(2) of this section.
(2) For each application, a program staff member shall submit to council members:
(A) the grant application's final overall peer review evaluation score;
(B) the grant application's peer review ranking;
(C) a summary of the grant application;
(D) other information submitted by the peer review panel for the council's consideration; and
(E) any other information required for the council's consideration of the grant application.
(3) In making grant award decisions, the council:
(A) shall ensure that grant funds are allocated fairly and spent to remediate the opioid crisis in this state by using efficient and cost-effective methods in accordance with the opioid strategies approved by the council under Government Code, §403.509(a)(1) and §16.201 of this subchapter, and the grant issuance plan adopted by the council under §16.202 of this subchapter; and
(B) may consider factors including:
(i) a grant applicant's experience;
(ii) a grant project's estimated timeline;
(iii) matching funds or sustainability plan, if any;
(iv) cost effectiveness, efficacy and overall impact of the grant project;
(v) geographic location of the grant project;
(vi) community partnerships; and
(vii) any additional factors listed in the relevant NOFA published by the council.
(4) The council shall vote on each grant application in accordance with Government Code, §403.509(c). The council may vote on multiple grant applications at one time.
(5) If the council approves a grant award, the council shall specify the total amount of money approved to fund the grant project.
(6) All grant funding decisions are final and are not subject to appeal.
(7) The approval of a grant award shall not obligate the council to make any additional, supplemental, or other grant award.
§16.209.Amount of Grant Award.
(a) The amount of a grant award is determined solely by the council.
(b) The council is not obligated to fund a grant at the amount requested by the grant applicant.
§16.210.Financial Responsibility.
(a) The grant recipient is responsible for managing the day-to-day operations and activities supported by the grant agreement and is accountable to the council for the performance of the grant agreement, including the appropriate expenditure of grant award funds and all other obligations of the grant recipient.
(b) The grant recipient must maintain a sound financial management system that provides appropriate fiscal controls and accounting procedures to ensure accurate preparation of reports required by the grant agreement and adequate identification of the source and application of grant funds awarded to the grant recipient.
§16.211.Allowable Costs; Disbursement of Grant Funds.
(a) Allowable costs are costs that are reasonable and necessary for the proper and efficient performance and administration of the grant project, and allocable to the grant project.
(b) The council disburses grant funds by reimbursing the grant recipient for allowable costs already expended.
(c) The relevant NOFA published by the council may provide additional information on allowable costs by grant project and a schedule for disbursement of grant funds.
§16.212.Grant Requirements.
(a) Grant recipients must comply with:
(1) the terms and conditions of the grant agreement;
(2) the requirements of Government Code, Chapter 403, Subchapter R;
(3) the relevant provisions of the Texas Grant Management Standards and the State of Texas Procurement and Contract Management Guide, or their successors, adopted in accordance with Texas law; and
(4) all applicable state or federal statutes, rules, regulations, or guidance applicable to the grant award.
(b) A grant recipient is the entity legally and financially responsible for compliance with the grant agreement, and state and federal laws, rules, regulations, and guidance applicable to the grant award.
(c) Grant funds may not be used for costs that will be reimbursed by another funding source. The director may require a grant applicant or grant recipient to demonstrate through accounting records that funds received from another funding source are not used for costs that will be reimbursed by the council.
§16.213.Use of Council's Grant Management System.
By utilizing the council's electronic grant management system to create, exchange, execute, submit, and verify legally binding grant agreement documents, grant award reports, and other grant information, a grant applicant or grant recipient:
(1) certifies that all information submitted is true and correct;
(2) agrees that the authorized official's electronic signature is the legal equivalent of the authorized official's manual signature;
(3) agrees that the council may rely upon the authorized official's electronic signature as evidence that the grant recipient consents to be legally bound by the terms and conditions of the grant agreement or related form as if the document was manually signed; and
(4) agrees to provide prompt written notification to the director of any changes regarding the status or authority of the individual(s) designated by the grant applicant or grant recipient to be the grant applicant's or grant recipient's authorized official.
§16.214.Code of Ethics.
(a) All council members, peer review panel members, and program staff members shall avoid acts which are improper or give the appearance of impropriety in the disposition of funds administered by the council.
(b) The council shall adopt a code of ethics to provide guidance related to the ethical conduct required of council members, peer review panel members, and program staff members.
(c) The code of ethics shall be distributed to each council member, peer review panel member, and program staff member.
§16.215.Reporting.
(a) Grant recipients must submit to a program staff member designated by the director periodic reports for each funded grant project for the duration of the grant agreement. The frequency, format and requirements of the reports shall be determined at the discretion of the director at the direction of the council.
(b) At the director's sole discretion and at any time, the director, upon reasonable notice, may request any additional data and reporting information that the director deems necessary to substantiate that grant funds are being used for the intended purpose and that the grant recipient has complied with the terms, conditions, and requirements of the grant agreement.
§16.216.Grant Reduction or Termination.
(a) If a grant recipient seeks to terminate any grant award before the termination date listed in the grant agreement, the grant recipient must notify the director in writing immediately.
(b) The council may reduce or terminate any grant award when circumstances require reduction or termination, including when:
(1) the grant recipient is found to be noncompliant under §16.218 of this subchapter;
(2) the grant recipient and the council agree to the reduction or termination of a grant award;
(3) grant funds are no longer available to the council; or
(4) conditions exist that make it unlikely that objectives of the grant award will be accomplished.
(c) If a grant award is reduced or terminated by the council, the director must notify the grant recipient in writing.
§16.217.Extensions.
(a) The director may approve a grant recipient's written request for a no cost time extension of the termination date of the grant agreement to permit the grant recipient additional time to complete the work of the grant project if the grant recipient is in good fiscal and programmatic standing.
(b) A written request for a no cost time extension must include:
(1) a timeline of events beginning on the date of grant award;
(2) a detailed explanation why the grant project is not expected to be completed within the grant term; and
(3) if applicable, supporting documentation demonstrating extenuating circumstances.
(c) The director may approve one or more no cost time extensions. The duration of each no cost time extension may be no longer than six months from the termination date of the grant agreement, unless the director finds that special circumstances justify authorizing additional time to complete the work of the grant project.
(d) Approval of a no cost time extension request must be supported by a finding of good cause and the grant agreement shall be amended to reflect the change.
(e) The director's decision to grant or deny a no cost time extension request is final and is not subject to appeal.
§16.218.Noncompliance.
(a) If the council has reason to believe that a grant recipient has violated any term or condition of the grant recipient's grant agreement or any applicable laws, rules, regulations, or guidance relating to the grant award, the director shall provide written notice of the allegations to the grant recipient and provide the grant recipient with an opportunity to respond to the allegations.
(b) If the council finds that a grant recipient has failed to comply with any term or condition of a grant agreement, or any applicable laws, rules, regulations, or guidance relating to the grant award, the council may:
(1) require the grant recipient to refund the grant award or a portion of the grant award;
(2) withhold grant award amounts to a grant recipient pending correction of the deficiency;
(3) disallow all or part of the cost of the activity or action that is not in compliance;
(4) terminate the grant award in whole or in part;
(5) bar the grant recipient from future consideration for grant funds under this subchapter; or
(6) exercise any other legal remedies available at law.
(c) A grant recipient shall not be required to forfeit grant funds received if it fails to perform due to acts of war, terrorism, natural disaster declared by the governor of this state, an act of God, force majeure, a catastrophe, or such other occurrence over which the grant recipient has no control.
§16.219.Monitoring Grant Award Performance and Expenditures.
The council shall monitor grant awards to ensure that grant recipients comply with applicable financial, administrative, and programmatic terms and conditions and exercise proper stewardship over grant award funds. Such terms and conditions include requirements set forth in the grant agreement, and applicable laws, rules, regulations, or guidance relating to the grant award.
§16.220.Records Retention; Audit.
(a) Grant recipients must maintain all financial records, supporting documents, and all other records pertinent to the grant project or grant award for the later of:
(1) five years following the submission of a final report; or
(2) if any litigation, claim, or audit is started, or any open records request is received, before the expiration of the five-year records retention period, one year after the completion of the litigation, claim, audit, or open records request and resolution of all issues which arise from it.
(b) At any time during the grant agreement and during the retention period described in subsection (a) of this section, the director or the director's designee may, upon reasonable notice, request any records from or audit the books and records of a grant recipient or conduct an on-site review at a grant recipient's location to verify that the grant recipient has complied with the terms, conditions, and requirements of the grant agreement, and any applicable laws, rules, regulations, or guidance relating to the grant award.
(c) During an on-site review, a grant recipient must provide the director or the director's designee with access to all records, information, and assets that the director or the director's designee determines are reasonably relevant to the scope of the on-site review.
(d) If the director or the director's designee requests records or information from the grant recipient, the grant recipient must provide the requested records or information to the director or the director's designee not later than 30 days after a written request is made by the director or the director's designee.
§16.221.Forms and Other Documents.
Unless otherwise required by law, the council may prescribe all forms or other documents required to implement this subchapter and may require that the forms or other documents be submitted electronically.
§16.222.References.
All references in this subchapter to statutory provisions in Government Code, Chapter 403, Subchapter R, refer to the provisions added by 87th Legislature, 2021, R.S., Chapter 781 (Senate Bill 1827), §1.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on June 20, 2023.
TRD-202302214
Victoria North
General Counsel for Fiscal and Agency Affairs
Comptroller of Public Accounts
Effective date: July 10, 2023
Proposal publication date: April 7, 2023
For further information, please call: (512) 475-2220