Proposed Rules Title 26

TITLE 26. HEALTH AND HUMAN SERVICES

PART 1. HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 110. HEARINGS UNDER THE ADMINSTRATIVE PROCEDURE ACT

26 TAC §§110.1, 110.3, 110.5, 110.7, 110.9, 110.11, 110.13, 110.15

As required by Texas Government Code §531.0202(b), the Department of Aging and Disability Services (DADS) was abolished effective September 1, 2017, after all its functions were transferred to the Texas Health and Human Services Commission (HHSC) in accordance with Texas Government Code §531.0201 and §531.02011. Rules of the former DADS are codified in Title 40, Texas Administrative Code (TAC), Part 1, and will be repealed or administratively transferred to 26 TAC, Health and Human Services, as appropriate. Until such action is taken, the rules in 40 TAC, Part 1, govern functions previously performed by DADS that have transferred to HHSC. Texas Government Code §531.0055 requires the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services system, including rules in 40 TAC, Part 1. Therefore, the Executive Commissioner of HHSC proposes new 26 TAC, Part 1, Chapter 110, concerning Hearings Under the Administrative Procedure Act, comprised of §§110.1, 110.3, 110.5, 110.7, 110.9, 110,11, 110.13, and 110.15.

BACKGROUND AND PURPOSE

The purpose of the proposal is to move appeals for Home and Community-based Services (HCS) and Texas Home Living (TxHmL) administrative penalties, contract terminations, vendor holds, recoupments, and denial of payment appeal cases from the HHSC Appeals Division to the Texas State Office of Administrative Hearings (SOAH). The proposal makes HCS and TxHmL consistent with other long-term care regulation programs that are heard by SOAH. The project will also update outdated rule references, change references to DADS to HHSC, and improve readability.

SECTION-BY-SECTION SUMMARY

The proposed new rules relocate content from the proposed repeal of 40 TAC, Chapter 91, to 26 TAC, Chapter 110, as well as change references to DADS to HHSC, change references to Commissioner to Executive Commissioner, update outdated rule references, and improve readability.

Proposed new §110.5(a)(5) and (6) adds the HCS and TxHmL programs to the list of contested cases heard by SOAH.

Proposed new §110.5(a)(21) clarifies that both long-term care regulation and provider investigations employee misconduct registry cases will be heard by SOAH.

FISCAL NOTE

Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.

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 create new rules;

(6) the proposed rules will not repeal existing rules;

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

(8) the proposed rules will not affect the state's economy.

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

Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities because the proposed rules do not require a change to current business practices.

LOCAL EMPLOYMENT IMPACT

The proposed rules will not affect a local economy.

COSTS TO REGULATED PERSONS

Texas Government Code §2001.0045 does not apply to these rules because the rules do not impose a cost on regulated persons.

PUBLIC BENEFIT AND COSTS

Stephen Pahl, Deputy Executive Commissioner for Regulatory Services, has determined that for each year of the first five years the rules are in effect, the public will benefit from all long-term care regulation appeal cases being handled consistently.

Trey Wood has also determined that for the first five years the rule repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed repeals because the new rules do not require any change in current business practices or impose any additional fees or costs on those required to comply.

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 Josie Esparza, Program Specialist, Mail Code E-370, 701 W. 51st Street, Austin, Texas 78751; or by email to hhscltcrrules@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) or 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 21R045" in the subject line.

STATUTORY AUTHORITY

The new rules 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 §531.021, which provides HHSC with the authority to administer federal funds and plan and direct the Medicaid program in each agency that operates a portion of the Medicaid program; Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rule-making authority; and Texas Human Resources Code §32.021, which provides that HHSC shall adopt necessary rules for the proper and efficient operation of the Medicaid program.

The new rules implement Texas Government Code §531.0055, §531.021, and Chapter 531, Subchapter A-1; and Texas Human Resources Code §32.021.

§110.1.Purpose.

The purpose of this chapter is to describe procedures for hearings under the Administrative Procedure Act, Texas Government Code, Chapter 2001 (relating to Administrative Procedure).

§110.3.Definitions.

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

(1) Administrative law judge (ALJ)--Unless otherwise specified, ALJ means both a SOAH ALJ and an HHSC ALJ.

(2) Commissioner--The Executive Commissioner of HHSC.

(3) Contested case--A contested case, as defined in Texas Government Code, §2001.003, to which HHSC is a party.

(4) HHSC--The Texas Health and Human Services Commission.

(5) Party--HHSC or another person named or admitted to participate in a contested case.

(6) PFD--Proposal for decision.

(7) SOAH--The State Office of Administrative Hearings.

(8) TAC--Texas Administrative Code.

§110.5.Contested Case Heard by SOAH.

(a) The State Office of Administrative Hearings (SOAH) hears a contested case arising from the following Texas Health and Human Services Commission (HHSC) programs, services, or activities:

(1) primary home care services;

(2) community attendant services;

(3) day activity and health services;

(4) the Community Living Assistance and Support Services Program;

(5) the Home and Community-based Services Program;

(6) the Texas Home Living Program;

(7) the Deaf-Blind Multiple Disabilities Program;

(8) the Medically Dependent Children Program;

(9) social services authorized by Title XX of the Social Security Act (42 United States Code §§1397 - 1397f);

(10) In-Home and Family Support services for a person without a diagnosis of an intellectual disability;

(11) the Program of All-Inclusive Care for the Elderly;

(12) licensure, certification, or contracting of a nursing facility, including a determination related to the Resource Utilization Group Classification System or other utilization review;

(13) hospice services;

(14) licensure or certification of an intermediate care facility for persons with an intellectual disability or related condition;

(15) licensure of a nursing facility administrator;

(16) licensure of an assisted living facility;

(17) licensure of a day activity and health services facility;

(18) licensure of a home and community support services agency;

(19) the nurse aide registry;

(20) the nurse aide training and competency evaluation program;

(21) the long-term care regulation and provider investigation employee misconduct registry; and

(22) the medication aide program.

(b) Before a contested case described in subsection (a) of this section is transferred to SOAH:

(1) the HHSC Appeals Division has exclusive jurisdiction over the case;

(2) Texas Administrative Code (TAC), Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and this chapter govern the case; and

(3) the parties may conduct discovery in accordance with 1 TAC Chapter 357, Subchapter I.

(c) The director of the HHSC Appeals Division transfers a contested case described in subsection (a) of this section to SOAH upon request for a hearing date by either party.

(d) SOAH conducts hearings in accordance with 1 TAC Chapter 155 (relating to Rules of Procedure) and this chapter.

(e) A SOAH administrative law judge issues a proposal for decision (PFD) in accordance with 1 TAC Chapter 155.

(f) If a party files PFD exceptions, or a reply to exceptions, the party must comply with 1 TAC Chapter 155.

§110.7.Contested Case Heard by HHSC.

(a) The Texas Health and Human Services Commission (HHSC) Appeals Division hears a contested case other than one described in §110.5(a) of this chapter (relating to Contested Case Heard by SOAH).

(b) The HHSC Appeals Division conducts a hearing in accordance with Texas Administrative Code (TAC), Title 1, Chapter 357, Subchapter I (relating to Hearings Under the Administrative Procedure Act) and this chapter.

(d) An HHSC ALJ issues a proposal for decision (PFD) in accordance with 1 TAC §357.497 (relating to Proposals for Decision, Exceptions, and Replies) within 60 days after the hearing record is closed.

(e) If a party files PFD exceptions, or a reply to exceptions, the party must comply with 1 TAC §357.497.

§110.9.Review of Proposal for Decision.

(a) The Texas Health and Human Services Commission (HHSC) Executive Commissioner, or the Executive Commissioner's designee, reviews a proposal for decision (PFD) issued by an administrative law judge (ALJ), exceptions to the PFD, and a reply to the exceptions. The HHSC executive commissioner or designee may change a finding of fact or conclusion of law, or may vacate or modify an order issued by the ALJ only if the executive commissioner or designee determines:

(1) that the ALJ did not properly apply or interpret applicable law, rule, policy provided to the ALJ, or prior administrative decision;

(2) that the ALJ relied on a prior administrative decision that is incorrect and should not be relied upon; or

(3) that a technical error in a finding of fact should be corrected.

(b) The HHSC Executive Commissioner or designee states in writing the specific reason and legal basis for a change made in accordance with this section.

§110.11.Issuance and Finality of Decision.

(a) After reviewing a proposal for decision (PFD), the Texas Health and Human Services Commission (HHSC) Executive Commissioner or the Executive Commissioner's designee issues a signed decision in a contested case. The decision either:

(1) adopts the findings of fact and conclusions of law contained in the PFD; or

(2) makes changes in accordance with §110.9 of this chapter (relating to Review of Proposal for Decision).

(b) The HHSC Executive Commissioner or designee mails the decision by first class mail and by certified mail, return receipt requested, to the parties or their representatives to their last known addresses. A party or representative is presumed to have been notified of the decision on the third day after the date on which the decision is mailed.

(1) if a motion for rehearing is not filed in accordance with §110.13 of this chapter (relating to Motion for Rehearing), on the last date a motion for rehearing can be filed in accordance with §110.13 of this chapter;

(2) if a motion for rehearing is filed in accordance with §110.13 of this chapter, on the date:

(A) an order overruling the motion for rehearing is signed; or

(B) the motion for rehearing is overruled by operation of law;

(3) if HHSC finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a decision, on the date the decision is signed; or

(4) on the date specified in the decision, if all parties agree to the specified date in writing or on the record and the specified date is not before the date the decision is signed or later than the 20th day after the date the decision is signed.

(d) If a decision is final under subsection (c)(3) of this section, the HHSC Executive Commissioner or designee recites in the decision the finding made under subsection (c)(3) of this section and the fact that the decision is final and effective on the date signed.

§110.13.Motion for Rehearing.

A motion for rehearing is governed by Texas Government Code §2001.146, as follows.

(1) A party may file a motion for rehearing. A motion for rehearing must be in writing and must be received by the Texas Health and Human Services Commission (HHSC) Executive Commissioner or the Executive Commissioner's designee within 20 days after the date the party or party's representative is notified of a decision in accordance with §110.11(b) of this chapter (relating to Issuance and Finality of Decision).

(2) A party may file a reply to a motion for rehearing. A reply must be in writing and be filed with the HHSC Executive Commissioner or designee not later than the 30th day after the date on which the party or party's representative is notified of a decision in accordance with §110.11(b) of this chapter.

(3) The HHSC Executive Commissioner or designee acts on a motion for rehearing not later than the 45th day after the date on which the party or party's representative is notified of a decision in accordance with §110.11(b) of this chapter, or the motion for rehearing is overruled by operation of law.

(4) The Executive Commissioner or designee may by written order extend the time for filing a motion for rehearing or a reply, or for acting on a motion for rehearing under this section, except an extension may not extend the period for acting on a motion for rehearing beyond the 90th day after the date on which the party or the party's representative is notified of a decision in accordance with §110.11(b) of this chapter.

(5) If the HHSC Executive Commissioner or designee issues an order extending the time for filing a motion for rehearing or a reply, or for acting on a motion for rehearing under this section, the motion for rehearing is overruled by operation of law on the date specified in the order. If the order does not specify a date, the motion for rehearing is overruled by operation of law 90 days after the date on which the party or party's representative is notified of a decision in accordance with §110.11(b) of this chapter.

§110.15.Judicial Review.

(a) In accordance with Texas Government Code §2001.145, a decision that is final under §110.11(c)(2) - (4) of this chapter (relating to Issuance and Finality of Decision) is appealable; however, a timely motion for rehearing is a prerequisite to appeal a decision that is final under §110.11(c)(2) of this chapter.

(b) In accordance with Texas Government Code §2001.171, a person who has exhausted all administrative remedies at the Texas Health and Human Services Commission and who is aggrieved by a final decision in a contested case is entitled to judicial review under Texas Government Code, Chapter 2001.

(c) In accordance with Texas Government Code §2001.176(b)(3), filing a petition to initiate judicial review of a contested case does not affect the enforcement of a final decision for which the manner of review authorized by law is other than trial de novo.

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 August 10, 2022.

TRD-202202972

Karen Ray

Chief Counsel

Health and Human Services Commission

Earliest possible date of adoption: September 25, 2022

For further information, please call: (512) 438-3161