Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,993
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provider for restitution. No changes are made in response to this
comment.
Comment: TMA comments that requiring providers and par-
ticipants to have knowledge of Medicaid laws, manuals,
regulations, bulletins, etc. is overly broad and unattainable.
TMA likens this to requiring a taxpayer to know all of the tax
laws/rules/forms/policies. TMA wants "including" struck from
371.1605(b)(1); (b)(3) to be limited in scope to "published and
publicly available Health and Human Services program and
procedure manuals with which the person participates"; (b)(5) to
only hold a provider accountable to the agreement or application
he/she signs; and (b)(6) not to include the language "or publicly
available policy".
Response: Providers can be responsible for their affiliates which
broadens their accountability beyond the provider agreement.
Providers are also held responsible for the policies that define
their contractual obligations. No changes are made in response
to this comment.
Comment: TMA comments that the definition of "abuse" in
371.1607(1) is overly broad, because it goes beyond the
definition in federal law.
Response: This definition is a verbatim copy of the definition of
"abuse" in the current TAC and very similar to the definition at
42 CFR 455.2. As noted above, both the current and proposed
definitions of "abuse" and "professionally recognized standards
for health care" are identical. OIG is unaware of any issues or
concerns caused by these definitions in the past.
Comment: TMA comments that the definition of "affiliate/affili-
ate relationship" in 371.1607(2) is not defined in the Code of
Federal Regulations and the definition should be removed. In
addition, TMA states that an affiliate should be under the control
of a person for that person to be responsible. TMA also opposes
subparagraph (I) as it is too expansive, and recommends, in the
alternative, that the affiliate be required to share tax identification
numbers, social security numbers, national provider numbers,
Texas provider numbers, or bank accounts.
Response: As previously discussed, the concept of affiliate
liability is established in federal law. Moreover, proposed
rule 371.1607(3) merely combines the current definitions
at 371.1601(2) and 371.1643(d) and (e) into one rule
(371.1607(3)). There is no proposed substantive change to
the current rule. OIG is unaware of any problems or issues that
have been caused in the past by this language. No changes are
made in response to this comment.
Comment: TMA states that the definition of "at the time of re-
quest" in 371.1607(4) is plain English and not necessary, un-
reasonable, and unfair and recommends it be stricken.
Response: This definition exists in the current rules at 1 TAC
371.1601(4) and the new rule does not create any substantive
change. Normally, OIG works with the provider to arrive at an
agreeable production schedule. No changes are made in re-
sponse to this comment.
Comment: TMA states that the definition of "costs related to an
administrative appeal" in 371.1607(17) is broad, so the word
"include" should be replaced with "means." TMA, specifically,
wants subparagraphs (D) through (H) to be stricken.
Response: Paragraph (17)(B) - (H) refers to costs associated
with case preparation, witness preparation, travel, attorney, and
court reporter fees. These are commonly recognized reasonableexpenses similar to court costs related to formal litigation which
are typically assessed against the non-prevailing party. Article
II, Rider 13 directs the allocation of moneys received as a refund
from the claims administrator or any other source. HHSC Budget
has interpreted this to include all OIG recoveries. Article II, Spe-
cial Provision 43 expressly refers to "costs of the investigation
and collection proceedings" in addition to "amounts collected as
reimbursement for claims paid by the agency." No changes are
made in response to this comment.
Comment: TMA states that the definition of "credible allegation
of fraud" in 371.1607(18) is critical to the rules and the defini-
tion as written would be potentially catastrophic to an innocent
provider. TMA strongly urges OIG to adopt a definition that re-
quires a credible allegation of fraud to be verified by the OIG
pursuant to an integrity review which is undergoing a full inves-
tigation by the Medicaid Fraud Control Unit.
Response: This definition tracks the federal definition in 42
C.F.R. 455.2. No changes are made in response to this
comment.
Comment: TMA states that the definition of "knew or should have
known" in 371.1607(38) is overly broad and confusing, has a
plain meaning and, therefore, is not necessary. TMA recom-
mends that the last sentence of the definition be deleted.
Response: This definition is now paragraph (33). It requires
a higher level of scienter than that required by statute. Texas
Human Resources Code allows the state to charge a person
with civil fraud if he or she acted knowingly, with conscious in-
difference, or in reckless disregard. Tex. Hum. Res. Code
36.0011(a). No changes are made in response to this com-
ment.
Comment: TMA requests that the word "indirectly" be removed
from the definition of "managing employee" in 371.1607 as it
makes the definition vague and ambiguous. TMA recommends
the removal of "or who directly or indirectly conducts the day-to-
day operations of the entity."
Response: The concept of indirect control of a managing em-
ployee is set out in 42 CFR 455.101. No changes are made in
response to this comment.
Comment: TMA requests that the word "includes" be re-
placed with "means" in the definition of "Overpayment" in
371.1607(48).
Response: The requested modification would substantially alter
the meaning and intent of the rule, and would cause the definition
to change materially from the federal definition of overpayment.
No changes are made in response to this comment.
Comment: TMA states that the definition of "ownership interest"
in 371.1607(49) should be changed to 10% ownership interest.
Response: This definition is required by federal law. 42 CFR
455.101 establishes the 5% threshold. Federal regulation fur-
ther includes all officers, directors, and partners as indirect own-
ers, regardless of their ownership interest percentage.
Moreover, this is a verbatim copy of the definition for the same
term in the current rule at 1 TAC 371.1601(21). The federal
standard is also applied in existing 1 TAC 371.1681(a) and (b).
No changes are made in response to this comment.
Comment: TMA states that the "Professionally recognized stan-
dards of health care" definition in 371.1607(56) should be re-
moved because the standard of care is defined by the professionADOPTED RULES October 5, 2012 37 TexReg 7993
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Texas. Secretary of State. Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012, periodical, October 5, 2012; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth288982/m1/178/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.