Texas Register, Volume 37, Number 40, Pages 7815-8094, October 5, 2012 Page: 7,997
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jects, as stated previously, to a person being penalized for the
actions of another over whom the person has no control, and
who has no control over the person.
Response: As previously discussed, new federal and state leg-
islation impose some potential liability for certain actions by af-
filiates. No changes are made in response to this comment.
Comment: TMA states that 371.1711(e) provides that the per-
son who is the subject of a recoupment is responsible for paying
the overpayment amounts, "plus OIG's or other HHS program's
costs related to an administrative appeal and all investigative and
administrative costs related to the investigation that resulted in
recoupment, if applicable." TMA strongly objects to and opposes
this provision. This is patently unfair and unreasonable. Further-
more, a provider should not be required to pay for OIG's costs in
an appeal. The appeal is a due process right afforded to the par-
ticipant, and the potential repayment of these costs would effec-
tively chill this important due process protection. There is no pro-
vision included which would require OIG to repay the provider's
costs if the provider's appeal is successful.
Response: The proposed rule does not expand OIG's existing
authority. 1 TAC 371.1705 provides that OIG may recover from
a provider all costs associated with an appeal or other litigation
as well as all costs incurred in recovering overpayments. As
previously discussed, the Appropriations Act also contemplates
that state agencies recover costs of investigation and prosecu-
tion. No changes are made in response to this comment.
Comment: TMA objects to 371.1713(a)(2) for the same rea-
sons previously stated. This subsection penalizes a provider for
a violation committed by an "affiliate." Control is the issue, and
the appropriate definition of affiliate is essential. TMA directs
OIG to its previous comments on this issue.
Response: OIG directs TMA to its previous responses on this
issue. No changes are made in response to this comment.
Comment: TMA and CPL object to 371.1713(a)(2) for the
same reasons previously stated and are generally concerned
regarding sanctions being imposed for actions that occur without
"knowing" conduct or conduct done by affiliates. This subsection
penalizes a provider for a violation committed by an "affiliate."
Control is the issue, and the appropriate definition of affiliate is
essential. TMA directs OIG to its previous comments on this
issue. They object to subsection (e)(3)(C) and (4) for the same
reasons stated previously. Regarding (e)(4), TMA states that a
provider should not be penalized for an administrative appeal
by having the effective date made retroactive. Subsection (d)(1)
states once a person is placed on restricted reimbursement,
payment will be limited or denied indefinitely or for a specified
period of time. The provision does not elaborate what criteria
OIG will use to determine the length of time for the penalty. If
the length of time is "indefinite," how frequently will OIG review
the case to determine when the penalty will cease? TMA rec-
ommends that criteria be established. Regarding (e)(4), again,
a provider should not be penalized for an administrative appeal
by having the effective date made retroactive.
Response: As for the issue relating to the affiliate relationship,
please see discussion under 371.1607(3) above. To the extent
the comment applies to (e)(3) and (4), the retroactive effective
date is limited to instances in which the provider placed a Med-
icaid client's health or safety at risk or refused to grant access to
premises or records.For the reasons previously stated, no changes are made in re-
sponse to this comment.
Comment: TMA states that 371.1715(e) provides the assess-
ment of damages and penalties. TMA is concerned with the
excessiveness of the penalties in subsection (e)(1)(B). OIG is
considering items that may be simple mistakes as program vio-
lations, and providers will be potentially liable for damages and
penalties disproportionate to the "violation" or mistake. TMA is
also concerned with subsection (e)(3) which requires a person
against whom damages or penalties are assessed to pay for
OIG's or other HHS program's costs related to the investigation.
Response: The provisions for this rule are expressly provided in
Texas Human Resources Code 32.039. No changes are made
in response to this comment.
SUBCHAPTER G. LEGAL ACTION RELATING
TO PROVIDERS OF MEDICAL ASSISTANCE
DIVISION 1. FRAUD OR ABUSE AND
ADMINISTRATIVE ENFORCEMENT
INVOLVING MEDICAID AND OTHER HEALTH
AND HUMAN SERVICES PROGRAMS
1 TAC 371.1601, 371.1603, 371.1605, 371.1609, 371.1611
Legal Authority
The repeals are adopted under Texas Government Code
531.033, which provides the Executive Commissioner of
HHSC with broad rulemaking authority; Human Resources
Code 32.021 and Texas Government Code 531.021(a),
which provide HHSC with the authority to administer the federal
medical assistance (Medicaid) program in Texas, to administer
Medicaid funds, and to adopt rules necessary for the proper
and efficient operation of the Medicaid program; and Texas
Government Code 531.021(b), which provides HHSC with the
authority to adopt rules governing the determination of Medicaid
reimbursements.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of the Secretary of State on September 24,
2012.
TRD-201205066
Steve Aragon
Chief Counsel
Texas Health and Human Services Commission
Effective date: October 14, 2012
Proposal publication date: August 10, 2012
For further information, please call: (512) 424-6900
DIVISION 2. MEDICAID PROGRAM
AUTHORITY AND VIOLATIONS
1 TAC 371.1613, 371.1615, 371.1617, 371.1619
Legal Authority
The repeals are adopted under Texas Government Code
531.033, which provides the Executive Commissioner ofADOPTED RULES October 5, 2012 37 TexReg 7997
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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/m1/182/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.