TITLE 1. ADMINISTRATION

PART 15. TEXAS HEALTH AND HUMAN SERVICES COMMISSION

CHAPTER 352. QUALITY ASSURANCE FEE

1 TAC §§352.1 - 352.9

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Texas Health and Human Services Commission (HHSC) proposes the repeal of Chapter 352, §§352.1 - 352.9, concerning Quality Assurance Fee.

Background and Justification

This chapter includes rules regarding the assessment and collection of a provider tax, also known as a quality assurance fee (QAF), from Intermediate Care Facilities for Persons with Mental Retardation (ICF-MR). This chapter is being repealed so that these rules can be transferred from Health and Human Services Commission (HHSC) agency rules to Department of Aging and Disability Services (DADS) agency rules. HHSC is responsible for determining Medicaid payment rates. These QAF rules do not determine payment rates, but instead describe the assessment and collection of the QAF, which is the responsibility of DADS. Therefore, these rules will be transferred to DADS. DADS is proposing the QAF rules simultaneously with this repeal in Title 40, Part 1, Chapter 11.

Section-by-Section Summary

This chapter and the rules contained in this chapter are repealed.

Fiscal Note

Gordon E. Taylor, Chief Financial Officer for DADS, has determined that during the first five-year period the repeal is in effect there will be no additional cost to the state for each state fiscal year the repeal of these rules is implemented. The proposed repeal will not result in any fiscal implications for local health and human services agencies. Local governments will incur no additional costs.

Small Business and Micro-business Impact Analysis

HHSC has determined that there is no adverse economic effect on small businesses or micro-businesses as a result of enforcing or administering the repeal of these rules. The repeal of these rules and the subsequent proposal of these same rules by DADS do not result in any fiscal impact and will not require any changes in practice or any additional cost to any small businesses.

HHSC does not anticipate that there will be any economic cost to persons who are required to comply with the repeal. The repeal will not affect local employment.

Public Benefit

Kevin Nolting, Interim Director of Rate Analysis, has determined that, for each year of the first five years the repeal is in effect, the expected public benefit is that these rules will be appropriately assigned as DADS agency rules since DADS has the responsibility for the implementation and enforcement of the requirements in the rules.

Takings Impact Assessment

HHSC has determined that this 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.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Public Comment

Questions about the content of this proposal may be directed to Sarah Hambrick in the HHSC Rate Analysis Department by telephone at (512) 491-1431 or by facsimile at (512) 491-1998. Written comments on the proposal may be submitted to Ms. Hambrick by facsimile, by e-mail to sarah.hambrick@hhsc.state.tx.us, or by mail to HHSC Rate Analysis, Mail Code H-400, P.O. Box 85200, Austin, Texas 78708-5200, within 30 days of publication of this proposal in the Texas Register.

Statutory Authority

The repeal is proposed under Texas Government Code, §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties; Texas 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; and Texas Government Code, §531.021(b), which establishes HHSC as the agency responsible for adopting reasonable rules governing the determination of fees, charges, and rates for medical assistance payments under Texas Human Resources Code, Chapter 32.

The proposed repeal affects Texas Government Code, Chapter 531 and Texas Human Resources Code, Chapter 32. No other statutes, articles, or codes are affected by this proposal.

§352.1.Purpose of Chapter.

§352.2.Definitions.

§352.3.Quality Assurance Fee Determination Methodology.

§352.4.Required reports.

§352.5.Payment and Collection of Quality Assurance Fee.

§352.6.Enforcement.

§352.7.Penalty.

§352.8.Informal review.

§352.9.Appeal of an Informal Review Decision.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 5, 2009.

TRD-200905049

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


CHAPTER 353. MEDICAID MANAGED CARE

SUBCHAPTER A. GENERAL PROVISIONS

1 TAC §353.4

The Texas Health and Human Services Commission (HHSC) proposes to amend §353.4, in Title 1, Part 15, Chapter 353, Subchapter A, General Provisions, concerning Managed Care Organization Requirements Concerning Out-of-Network providers.

Background and Justification

Sections 2.203 and 2.35 of H.B. 2292, 78th Legislature, Regular Session, 2003, directed HHSC to take a number of steps to increase the participation of providers in Medicaid managed care. H.B. 2292 included a requirement that HHSC establish a reasonable reimbursement methodology for Medicaid managed care organizations (MCOs) to use when paying for services rendered by out-of-network, in area providers. The rule containing this provision, 1 TAC §353.4, became effective January 22, 2006.

The rule requires that Medicaid MCOs reimburse out-of-network, in area providers no less than the Medicaid fee-for-service rate minus three (3) percent. This requirement encourages provider participation in Medicaid managed care since the in-network reimbursement rate is generally higher than the out-of-network rate. The rule also encourages Medicaid MCOs to increase access to network providers by tightening out-of-network utilization standards.

In the 2010-11 General Appropriations Act (Article II, Health and Human Services Commission, Rider 59, S.B. 1, 81st Legislature, Regular Session, 2009), the Legislature directed HHSC to achieve $107.1 million General Revenue cost savings in Medicaid. Rider 59 outlined a number of strategies for HHSC to consider in order to achieve these savings, including efforts to increase provider participation in managed care networks. Reducing the minimum MCO rate for out-of-network, in area providers is one way to achieve some of the required cost savings while encouraging provider participation in Medicaid managed care.

Section-by-Section Summary

This proposed rule makes technical corrections to the title and to subsection (h) to clarify applicability.

Proposed subsection (c) changes the minimum out-of-network, in area provider reimbursement rate to be used by Medicaid MCOs from the fee-for-service rate minus three (3) percent to the fee-for-service rate minus five (5) percent.

Proposed subsection (e) reduces the out-of-network utilization standards with which MCOs must comply as follows: out-of-network inpatient admissions are reduced from no more than 25 percent of total admissions to no more than 15 percent; out-of-network emergency room visits are reduced from no more than 30 percent of total emergency room visits to no more 20 percent; and other out-of-network outpatient services are reduced from no more than 30 percent of total dollars billed for such services to no more than 20 percent.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first 5-year period the amended rule is in effect there will be a cost savings to state government. The reimbursement rate reduction will result in savings to state government of $937,440 for State Fiscal Year (SFY) 2010; $1,159,710 for SFY 2011; and $1,272,240 each year for SFY 2012, 2013, 2014, and 2015. The proposed rule will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.

Small and Micro-business Impact Analysis

This rule change may adversely impact small or micro-businesses that provide out-of-network services in Medicaid managed care areas. For various reasons, these providers have opted to provide services out-of-network instead of contracting with the Medicaid MCO(s) in their area. HHSC does not collect data regarding the number of out-of-network providers who are small or micro-businesses, and does not have a way to estimate how many small or micro-businesses may be impacted.

Medicaid MCOs reimburse out-of-network providers for emergency services and, in some cases, for medically necessary non-emergency services that are not available through the MCO's network. Most out-of-network services are related to emergencies. Out-of-network providers include hospital emergency departments, hospital-affiliated physicians, individual physicians and physician groups, laboratories, and related ancillary services.

HHSC considered three alternatives to the proposed rule: (1) no change; (2) imposing a ten percent discount on MCO out-of-network, in area reimbursements; and (3) an across the board provider rate decrease. The first alternative was rejected inasmuch as the Legislature's savings goal could not be realized absent some adjustment to the out-of-network reimbursement rule. The second alternative was deemed as unnecessary in light of estimated additional savings that could be realized through the combination of other Rider 59 initiatives. The third alternative would not encourage provider participation in Texas Medicaid and may cause some providers to withdraw from the program. Retaining a robust statewide Medicaid provider network is a priority of the Legislature and the Texas Medicaid program.

Adopting a Medicaid managed care out-of-network reimbursement rule that requires that rates paid be no less than the prevailing fee-for-service rate minus five percent is the only approach of the three considered above that complies with the Legislature's dual purposes of creating an incentive for providers to contract with MCOs while achieving savings.

Public Benefit

Chris Traylor, Associate Commissioner for Medicaid/CHIP, has determined that for each year of the first five years the section is in effect, the public will benefit from the adoption of the section. The anticipated public benefit, as a result of enforcing the section, will be the increased participation of providers in Texas Medicaid managed care programs.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Government Code.

Public Comment

Written comments on the proposal may be submitted to Gary Young, Texas Health and Human Services Commission, Health Plan Operations, P.O. Box 85200, Mail Code H-320, Austin, Texas 78708-5200; by fax to (512) 491-1972; or by e-mail to gary.young@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

Public Hearing

A public hearing is scheduled for December 16, 2009 from 2:30 p.m. to 3:30 p.m. (central time) in the John H. Winters Building, Public Hearing Room, 125-E, located at 701 W. 51st Street, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Leigh Van Kirk at (512) 491-2813.

Statutory Authority

The amendment is proposed 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; and Texas Government Code §531.021(b), which provides HHSC with the authority to propose and adopt rules governing the determination of Medicaid reimbursements.

The proposed amendment affects the Human Resources Code, Chapter 32, and the Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§353.4.Managed Care Organization Requirements [of STAR and STAR+PLUS Programs] Concerning Out-of-Network Providers.

(a) Network adequacy. The Health and Human Services Commission (HHSC) is the state agency responsible for overseeing and monitoring the Medicaid managed care program. The managed care organizations (MCOs) participating in the Medicaid managed care program must offer a network of providers that is sufficient to meet the needs of the Medicaid population who are MCO members. HHSC will monitor MCO members' access to an adequate provider network through reports from the MCOs and complaints received from providers and members. The reporting requirements are discussed in paragraph (d) of this section.

(b) MCO requirements concerning treatment of members by out-of-network providers.

(1) The MCO shall allow referral of its member(s) to an out-of-network provider, shall timely issue the proper authorization for such referral, and shall timely reimburse the out-of-network provider for authorized services provided when:

(A) Medicaid covered services are medically necessary and these services are not available through an in-network provider;

(B) A provider currently providing authorized services to the member requests authorization for such services to be provided to the member by an out-of-network provider; and

(C) The authorized services are provided within the time period specified in the MCO's authorization. If the services are not provided within the required time period, a new request for referral from the requesting provider must be submitted to the MCO prior to the provision of services.

(2) An MCO may not refuse to reimburse an out-of-network provider for emergency or post-stabilization services provided as a result of the MCO's failure to arrange for and authorize a timely transfer of a member.

(3) MCO requirements concerning emergency services.

(A) The MCO shall allow its members to be treated by any emergency services provider for emergency services and/or for services to determine if an emergency condition exists.

(B) The MCO is prohibited from requiring an authorization for emergency services or for services to determine if an emergency condition exists.

(4) MCOs may be required by contract with HHSC to allow members to obtain services from out-of-network providers in circumstances other than those described above.

(c) Reasonable Reimbursement Methodology

(1) The MCO shall reimburse an out-of-network, in area service provider no less than the prevailing Medicaid Fee-For-Service (FFS) rate less 5 [3] percent. The Medicaid Fee-For-Service rates are defined as those rates for providers of services in the Texas Medicaid Program for which reimbursement methodologies are specified in the Texas Administrative Code (TAC) at Title 1, Part 15, Chapter 355, exclusive of the rates and payment structures in Medicaid Managed Care.

(2) The MCO shall reimburse an out-of-network, out-of-area service provider at no less than 100 percent of the Medicaid Fee-For-Service rate.

(3) In accordance with Subsections 533.005 (a)(12) and (b) of the Government Code, all post stabilization services provided to a member by an out-of-network provider must be reimbursed by the MCO at the rates for providers of services in the Texas Medicaid Program for which reimbursement methodologies are specified in the Texas Administrative Code (TAC) at Title 1, Part 15, Chapter 355 until the MCO arranges for the timely transfer of the member, as determined by the member's attending physician, to a provider in the MCO's network.

(d) Reporting requirements

(1) Each MCO that contracts with HHSC to provide health care services to members in a health care service region must submit quarterly information in its Out-of-Network quarterly report to HHSC.

(2) Each report submitted by an MCO must contain information about members enrolled in each HHSC Medicaid managed care program provided by the MCO. The report shall include the following information:

(A) The types of services provided by out-of-network providers for members of the MCO's Medicaid managed care plan.

(B) The scope of services provided by out-of-network providers to members of the MCO's Medicaid managed care plan.

(C) Total number of hospital admissions, as well as number of admissions that occur at each out-of-network hospital. Each out-of-network hospital must be identified.

(D) Total number of emergency room visits, as well as total number of emergency room visits that occur at each out-of-network hospital. Each out-of-network hospital must be identified.

(E) Total dollars billed for other outpatient services, as well as total dollars billed by out-of-network providers for other outpatient services.

(F) Any additional information required by HHSC.

(3) HHSC will determine the specific form of the report described above and will include the report form as part of the Medicaid managed care contract between HHSC and the MCOs.

(e) Utilization

(1) Upon review of the reports described in paragraph (d) of this section that are submitted to HHSC by the MCOs, HHSC may determine that an MCO exceeded maximum Out-of-Network usage standards set by HHSC for out-of-network access to health care services during the reporting period.

(2) Out-of-Network Usage Standards

(A) Inpatient Admissions: No more than 15 [25 ] percent of an MCO's total hospital admissions, by service delivery area, may occur in out-of-network facilities.

(B) Emergency Room Visits: No more than 20 [30 ] percent of an MCO's total emergency room visits, by service delivery area, may occur in out-of-network facilities.

(C) Other Outpatient Services: No more than 20 [30 ] percent of total dollars billed to an MCO for "other outpatient services" may be billed by out-of-network providers.

(3) Special Considerations in Calculating MCO Out-of-Network Usage of Inpatient Admissions and Emergency Room Visits.

(A) In the event that an MCO exceeds the maximum Out-of-Network usage standard set by HHSC for Inpatient Admissions or Emergency Room Visits, HHSC may modify the calculation of that MCO's Out-of-Network usage for that standard if:

(i) The admissions or visits to a single out-of-network facility account for 25% or more of the MCO's admissions or visits in a reporting period; and

(ii) HHSC determines that the MCO has made all reasonable efforts to contract with that out-of-network facility as a network provider without success.

(B) In determining whether the MCO has made all reasonable efforts to contract with the single out-of-network facility described above in Subparagraph (A) of this paragraph, HHSC will consider at least the following information:

(i) How long the MCO has been trying to negotiate a contract with the out-of-network facility;

(ii) The in-network payment rates the MCO has offered to the out-of-network facility;

(iii) The other, non-financial contractual terms the MCO has offered to the out-of-network facility, particularly those relating to prior authorization and other utilization management policies and procedures;

(iv) The MCO's history with respect to claims payment timeliness, overturned claims denials, and provider complaints;

(v) The MCO's solvency status; and

(vi) The out-of-network facility's reasons for not contracting with the MCO.

(C) If the conditions described in subparagraph (A) of this paragraph are met, HHSC may modify the calculation of the MCO's Out-of-Network usage for the relevant reporting period and standard by excluding from the calculation the Inpatient Admissions or Emergency Room Visits to that single out-of-network facility.

(f) Provider Complaints.

(1) HHSC will accept provider complaints regarding reimbursement for or overuse of out-of-network providers and will conduct investigations into any such complaints.

(2) When a provider files a complaint regarding out-of-network payment, HHSC will require the relevant MCO to submit data to support its position on the adequacy of the payment to the provider. The data will include at a minimum a copy of the claim for services rendered and an explanation of the amount paid and of any amounts denied.

(3) Not later than the 60th day after HHSC receives a provider complaint, HHSC shall notify the provider who initiated the complaint of the conclusions of HHSC's investigation regarding the complaint. The notification to the complaining provider will include:

(A) A description of the corrective actions, if any, required of the MCO in order to resolve the complaint; and

(B) If applicable, a conclusion regarding the amount of reimbursement owed to an out-of-network provider.

(4) If HHSC determines through investigation that an MCO did not reimburse an out-of-network provider based on a reasonable reimbursement methodology as described within subsection (c) of this section, HHSC shall initiate a corrective action plan. Refer to subsection (g) of this section for information about the contents of the corrective action plan.

(5) If, after an investigation, HHSC determines that additional reimbursement is owed to an out-of-network provider, the MCO must:

(A) Pay the additional reimbursement owed to the out-of-network provider within 90 days from the date the complaint was received by HHSC or 30 days from the date the clean claim, or information required that makes the claim clean, is received by the MCO, whichever comes first; or,

(B) Submit a reimbursement payment plan to the out-of-network provider within 90 days from the date the complaint was received by HHSC. The reimbursement payment plan provided by the MCO must provide for the entire amount of the additional reimbursement to be paid within 120 days from the date the complaint was received by HHSC.

(6) If the MCO does not pay the entire amount of the additional reimbursement within 90 days from the date the complaint was received by HHSC, HHSC may require the MCO to pay interest on the unpaid amount. If required by HHSC, interest accrues at a rate of 18 percent simple interest per year on the unpaid amount from the 90th day after the date the complaint was received by HHSC, until the date the entire amount of the additional reimbursement is paid.

(7) HHSC will pursue any appropriate remedy authorized in the contract between the MCO and HHSC if the MCO fails to comply with a corrective action plan under subsection (g) of this section.

(g) Corrective Action Plan.

(1) A corrective action plan is required by HHSC in the following situations:

(A) The MCO exceeds a maximum standard established by HHSC for out-of-network access to health care services described in subsection (e) of this section; or

(B) The MCO does not reimburse an out-of-network provider based on a reasonable reimbursement methodology as described within subsection (c) of this section.

(2) A corrective action plan imposed by HHSC will require one of the following:

(A) Reimbursements by the MCO to out-of-network providers at rates that equal the allowable rates for the health care services as determined under Sections 32.028 and 32.0281, Human Resources Code, for all health care services provided during the period:

(i) the MCO is not in compliance with a utilization standard established by HHSC; or

(ii) the MCO is not reimbursing out-of-network providers based on a reasonable reimbursement methodology, as described in subsection (c) of this section.

(B) Initiation of an immediate freeze by HHSC on the enrollment of additional recipients in the MCO's managed care plan until HHSC determines that the provider network under the managed care plan can adequately meet the needs of the additional recipients;

(C) Education by the MCO of recipients enrolled in the managed care plan regarding the proper use of the provider network under the health care plan; or

(D) Any other actions HHSC determines are necessary to ensure that Medicaid recipients enrolled in managed care plans provided by the MCO have access to appropriate health care services and that providers are properly reimbursed by the MCO for providing medically necessary health care services to those recipients.

(h) The requirements of this rule apply to an MCO contract with HHSC that is in effect on or after September 1, 2006.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 2, 2009.

TRD-200904975

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6900


CHAPTER 354. MEDICAID HEALTH SERVICES

SUBCHAPTER A. PURCHASED HEALTH SERVICES

DIVISION 2. MEDICAID VISION CARE PROGRAM

1 TAC §354.1015, §354.1017

The Texas Health and Human Services Commission (HHSC) proposes to amend Title 1, Part 15, Chapter 354, Subchapter A, Division 2, §354.1015, Benefits and Limitations and §354.1017, Specifications for Eyewear, relating to the Medicaid Vision Care Program.

Background and Justification

HHSC proposes to amend the non-surgical vision policy for adults to mirror the Medicaid state plan for certain vision services provided to the under 21 population and align with current standard of care practices.

The Health and Human Services Commission, in conjunction with the Department of State Health Services and the Texas Medicaid & Healthcare Partnership, periodically assesses benefits provided by the Medicaid program in Texas. As a result of this assessment, recommendations were made to update the vision care program benefits for recipients 21 years old or older.

Section-by-Section Summary

Section 354.1015(c)(2)(A) is amended to allow recipients age 21 and older more than one eye exam within a 24-month period if medically necessary for diagnostic purposes and/or treatment of the eye for medical conditions.

Section 354.1015(c)(2)(B) is amended to specify that recipients are eligible for prosthetic eyewear if prescribed for a congenital abnormality or defect, or an acquired condition as a result of trauma or cataract removal.

Sections 354.1015(c)(2)(B)(v) and (c)(2)(C)(iii) are amended to clarify that minor repairs on prosthetic and non-prosthetic eyewear for which the cost of materials is $2 or less are the responsibility of the provider, are not separately reimbursable, and the provider may not bill the recipient for these repairs. The cost of these repairs is included in the rate for the eyewear.

Section 354.1017(2) is amended to include metal frames or metal/zylonite combination frames as a benefit.

Section 354.1017(3) is amended to include metal frames or metal/zylonite combination frames in the selection of frames providers are required to show eligible recipients.

Section 354.1017(8) is amended to correct a typographical error by changing 7%6125 to 7/25.

Section 354.1017(10) is amended to clarify the language for when repair materials can be billed to Texas Medicaid.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that during the first 5-year period the proposed rule amendments are in effect, there will be no fiscal impact to state government. The proposed amended rules will not result in any fiscal implications for local health and human services agencies. Local governments will not incur additional costs.

Small and Micro-business Impact Analysis

Ms. Rymal has also determined that there will be no effect on small businesses or micro businesses that are Medicaid providers. Providers will not be required to alter their business practices as a result of the amendments. There are no significant other costs to persons who are required to comply with the proposed amendments. There is no anticipated negative impact on local employment.

Public Benefit

Chris Traylor, Associate Commissioner for Medicaid and CHIP, has determined that for each year of the first five years the proposed amendments are in effect, the public will benefit from the adoption of the rules. The anticipated public benefit of enforcing the proposed amendments will be improved vision care services for Medicaid-eligible adults.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. A "major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risk to human health from environmental exposure and that may adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Government Code.

Public Comment

Written comments on the proposal may be submitted to JoAnne Talavera, Senior Policy Analyst, Medicaid/CHIP Division, Health and Human Services Commission, at P.O. Box 13247, Mail Code H-390, Austin, Texas 78711; by fax to (512) 249-3725; or by e-mail to joanne.talavera@hhsc.state.tx.us within 30 days of publication of this proposal in the Texas Register.

Public Hearing

A public hearing is scheduled for December 16, 2009 from 1:30 p.m. to 2:30 p.m. (central time) in the John H. Winters Building, Public Hearing Room, 125-E, located at 701 W. 51st Street, Austin, Texas. Persons requiring further information, special assistance, or accommodations should contact Leigh A. Van Kirk at (512) 491-2813.

Statutory Authority

The amendments are proposed under Texas Government Code §531.033, which provides the Executive Commissioner of HHSC with broad rulemaking authority; and Texas 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.

The proposed amendments affect Texas Human Resources Code Chapter 32, and Texas Government Code Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1015.Benefits and Limitations.

(a) Except as specified in §354.1023, Optometric Services Provider, the services addressed in this subchapter are those optometric services available to Medicaid recipients who are 21 years old or older. Services are available to Medicaid recipients under 21 years old through the Early and Periodic Screening, Diagnosis, and Treatment (EPSDT) Program, Benefits and Limitations, described in 1 TAC [T.A.C.] §363.502.

(b) The amount, duration, and scope of optometric services available through the Texas Medicaid Program are established according to applicable federal regulations, the Texas state plan for medical assistance under Title XIX of the Social Security Act, state law, and Commission rules. Information regarding benefits and limitations is available to providers of these services through the Texas Medicaid Provider Procedures Manual issued to each provider upon enrollment in the Texas Medicaid Program.

(c) The benefits and limitations applicable to optometric services available through the Texas Medicaid Program to eligible recipients who are 21 years old or older are as follows:

(1) Provider eligibility. A provider must be a physician or optometrist and enrolled in the Texas Medicaid Program at the time the service is provided in order to be eligible for reimbursement by the program.

(2) Reimbursable services.

(A) Examination. One examination of the eyes by refraction may be provided to each eligible recipient every 24 months. This limit does not apply to diagnostic or other treatment of the eye for medical conditions.

(B) Prosthetic eyewear. Prosthetic eyewear, including contact lenses and glass or plastic lenses in frames, is a program benefit provided to an eligible recipient if the eyewear is prescribed for a congenital abnormality or defect, or an acquired condition as a result of trauma or cataract removal [post-cataract surgery, congenital absence of the eye lens, or loss of an eye lens because of trauma]. The following benefits and limitations apply to prosthetic eyewear:

(i) Medically necessary temporary lenses are reimbursed during post-surgical cataract convalescence. The convalescence period is considered to be the four-month period following the date of cataract surgery.

(ii) Only one pair of permanent prosthetic lenses may be dispensed as a program benefit.

(iii) Replacement of prosthetic eyewear is reimbursed when the eyewear is lost, stolen, or damaged beyond repair.

(iv) Prosthetic eyewear is reimbursed when the eyewear is required due to a change in visual acuity of .5 diopters or more.

(v) Repairs to prosthetic eyewear are reimbursable if the cost of materials exceeds $2.00. Repairs for which the cost of materials is $2.00 or less [ costing less than $2.00] are not separately reimbursable , but are the responsibility of the provider and are included in the rate for eyewear. The [ and the] provider may not bill the recipient for these services.

(C) Non-prosthetic eyewear. Non-prosthetic eyewear includes contact lenses and glass or plastic lenses in frames. Non-prosthetic eyewear is a program benefit when the eyewear is medically necessary to correct defects in vision. This eyewear is provided to an eligible recipient only once every 24 months unless the recipient experiences a visual acuity change of .5 diopters or more. A new 24-month benefit period for eyewear begins with the replacement of non-prosthetic eyewear due to a change in visual acuity of .5 diopters or more.

(i) Contact lenses require prior authorization by the Commission or its designee. Prior authorization decisions are based on the provider's written documentation supporting the need for contact lenses as the only means of correcting the vision defect.

(ii) Non-prosthetic eyewear that is lost or stolen is not reimbursed by the program.

(iii) Repairs to non-prosthetic eyewear for which the cost of materials exceeds $2.00 are not reimbursable [by the Texas Medicaid Program]. Repairs for which the cost of materials is $2.00 or less are not separately reimbursable, but are the responsibility of the provider and are included in the rate for eyewear. The provider may not bill the recipient for repairs for which the cost of materials is $2.00 or less.

§354.1017.Specifications for Eyewear.

The provider must ensure that eyewear meets the following specifications.

(1) Lenses are clear glass or plastic, meet federal and state specifications, and meet all standards of the American standard prescription requirements for first quality glass and plastic lenses dress eyewear.

(2) Frames are zylonite, metal, or combination metal/zylonite.

(3) Standard sizes of the frames are dispensed at no cost to the eligible recipient. An eyeglass supplier must show each eligible recipient a choice of: three styles of zylonite, metal, or a combination of zylonite/metal frames appropriate for male and female in a choice of three colors.

(4) Frames are only those manufactured in the United States of America, unless foreign-made frames are comparable in quality to and less expensive than American made-frames. Lenses are only those manufactured in the United States of America, unless foreign-made lenses are comparable in quality to and less expensive than American-made lenses.

(5) Frames are serviceable and meet prescription quality standards.

(6) Lenses and frame materials are new.

(7) Bifocal lenses are a minimum kryptoc 22 MM flat top lens or equivalent.

(8) Trifocal lenses are a minimum flat top 7/25 [7%6125 ] lens or equivalent.

(9) Supplies are at least equivalent in quality to program eyewear provided under this chapter at no cost to the eligible recipients.

(10) All repair materials billed to Texas Medicaid must be [Repair materials for which a charge is made are] new and at least equivalent to the original item and meet the specifications for prosthetic eyewear cited in these provisions.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 2, 2009.

TRD-200904976

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6900


CHAPTER 354. MEDICAID HEALTH SERVICES

The Health and Human Services Commission (HHSC) proposes the repeal of Subchapter D, §§354.1530, 354.1531, and 354.1533, concerning Presumptive Medicaid for Pregnant Women; Subchapter E, Medically Needy and Children and Pregnant Women Programs, consisting of Division 1, §354.1550, concerning definitions; Division 2, §§354.1555 - 354.1563, concerning Medically Needy Program requirements; and Division 3, §§354.1574 - 354.1582, concerning Children and Pregnant Women Program requirements; Subchapter G, §354.2101 and §354.2103, concerning emergency Medicaid for aliens ineligible for regular Medicaid; Subchapter H, §354.2120 and §354.2125, concerning medical assistance for breast and cervical cancer; and Subchapter L, Medicaid for Transitioning Foster Care Youth, consisting of Division 1, §§354.2451 - 354.2453, concerning overview and purpose; Division 2, §§354.2461 - 354.2466, concerning eligibility requirements; Division 3, §354.2481 and §354.2482, concerning certification and coverage; and Division 4, §354.2491, concerning appeals, in Chapter 354, Medicaid Health Services.

Background and Purpose

The purpose of the repeals is to remove the existing rules governing Medicaid programs for women, children, youth, and needy families from Chapter 354 and place them in their own chapter. Repeal of the existing rules will allow the simultaneous adoption of new rules in Chapter 366 that are updated with correct agency names and rule cross-references and are easier to find and use.

HHSC is proposing the new rules governing these Medicaid programs in Chapter 366 elsewhere in this issue of the Texas Register.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (the Administrative Procedure Act). HHSC has reviewed all sections in Subchapters D, E, G, H, and L of Chapter 354 and has determined that, although the reasons for adopting rules continue to exist, the rules need updating and would be better located in another chapter of the Texas Administrative Code with similar rules. As a result of this review, HHSC is proposing these repeals.

Section-by-Section Summary

The proposed repeals delete Subchapters D, E, G, H, and L in their entirety.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for the first five years after the repeals, there are no foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-Business Impact Analysis

Ms. Rymal has also determined that the proposed repeals will have no adverse economic effect on small businesses or micro-businesses, because the repeals do not require them to alter their business practices. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.

Public Benefit

Joanne Molina, Deputy Executive Commissioner for Social Services, has determined that, for each year of the first five years after the repeals, the public benefit expected as a result of repealing the sections is that the repealed sections will be replaced with new rules that provide the public with current information and are easier to use.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Texas Government Code.

Public Comment

Written comments on the proposal may be submitted to Regina Perez, Health and Human Services Commission, Office of Family Services, MC 2039, 909 West 45th Street, Austin, TX 78751, or by e-mail to gina.perez@hhsc.state.tx.us, within 30 days after publication of this proposal in the Texas Register.

Public Hearing

HHSC will hold a public hearing on December 11, 2009, at 2:00 p.m. (Central Time) to receive public comment on the proposal. The hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring Americans with Disabilities Act (ADA) accommodation or auxiliary aids or services should contact Graciela Reyna by calling (512) 206-4778, at least 72 hours prior to the hearing so appropriate arrangements can be made.

SUBCHAPTER D. PRESUMPTIVE MEDICAID FOR PREGNANT WOMEN PROGRAM

1 TAC §§354.1530, 354.1531, 354.1533

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1530.Client Eligibility Requirements.

§354.1531.Eligibility Requirements for Medical Providers.

§354.1533.Monitoring Medical Providers.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905093

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER E. MEDICALLY NEEDY AND CHILDREN AND PREGNANT WOMEN PROGRAMS

DIVISION 1. DEFINITIONS

1 TAC §354.1550

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1550.Definitions.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905094

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 2. MEDICALLY NEEDY PROGRAM REQUIREMENTS

1 TAC §§354.1555 - 354.1563

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1555.Eligible Groups.

§354.1556.Application Procedures.

§354.1557.Income Eligibility Requirements.

§354.1558.Eligibility Requirements Other Than Income.

§354.1559.Medicaid Eligibility Dates.

§354.1560.Information from Other Agencies.

§354.1561.Requirement to Report Changes.

§354.1562.Right to Appeal.

§354.1563.Availability of Funding.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905095

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 3. CHILDREN AND PREGNANT WOMEN PROGRAM REQUIREMENTS

1 TAC §§354.1574 - 354.1582

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.1574.Eligible Groups.

§354.1575.Application Procedures.

§354.1576.Income Eligibility Requirements.

§354.1577.Eligibility Requirements Other Than Income.

§354.1578.Medicaid Eligibility Dates.

§354.1579.Information from Other Agencies.

§354.1580.Requirement to Report Changes.

§354.1581.Right to Appeal.

§354.1582.Availability of Funding.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905096

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER G. EMERGENCY MEDICAID FOR ALIENS INELIGIBLE FOR REGULAR MEDICAID

1 TAC §354.2101, §354.2103

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2101.Legal Basis.

§354.2103.Eligibility Requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905097

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER H. MEDICAL ASSISTANCE FOR BREAST AND CERVICAL CANCER

1 TAC §354.2120, §354.2125

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2120.Client Eligibility Requirements.

§354.2125.Right to Appeal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905098

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER L. MEDICAID FOR TRANSITIONING FOSTER CARE YOUTH

DIVISION 1. OVERVIEW AND PURPOSE

1 TAC §§354.2451 - 354.2453

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2451.Purpose.

§354.2452.Program Administration.

§354.2453.Legal Basis.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905099

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 2. ELIGIBILITY REQUIREMENTS

1 TAC §§354.2461 - 354.2466

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2461.Eligible Group.

§354.2462.Age Requirement.

§354.2463.Citizenship Requirement.

§354.2464.Resource Requirements.

§354.2465.Income Eligibility.

§354.2466.Residency Requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905100

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 3. CERTIFICATION AND COVERAGE

1 TAC §354.2481, §354.2482

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2481.Initial Certification.

§354.2482.Medicaid Eligibility Dates.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905101

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 4. APPEALS

1 TAC §354.2491

(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§354.2491.Right to Appeal.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905102

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


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

The Health and Human Services Commission (HHSC) proposes new Subchapter B, concerning the Presumptive Medicaid for Pregnant Women Program, consisting of Division 1, General, §366.201 and §366.203; Division 2, Eligibility Requirements, §§366.211, 366.213, 366.215, 366.217, 366.219, 366.221, 366.223, 366.225, 366.227, 366.229, 366.231, 366.233, 366.235, 366.237, 366.239, 366.241, 366.243, and 366.245; and Division 3, Provider Requirements, §366.251 and §366.253; Subchapter C, concerning Pregnant Women's Medicaid, consisting of §§366.301, 366.303, 366.305, 366.307, 366.309, 366.311, 366.313, 366.315, 366.317, 366.319, 366.321, 366.323, 366.325, 366.327, 366.329, 366.331, 366.333, 366.335, 366.337, 366.339, 366.341, and 366.343; Subchapter D, concerning Medicaid for Breast and Cervical Cancer, consisting of §§366.401, 366.403, 366.405, 366.407, 366.409, 366.411, 366.413, 366.415, 366.417, 366.419, and 366.421; Subchapter E, concerning Children's Medicaid, consisting of §§366.501, 366.503, 366.505, 366.507, 366.509, 366.511, 366.513, 366.515, 366.517, 366.519, 366.521, 366.523, 366.525, 366.527, 366.529, 366.531, 366.533, 366.535, 366.537, 366.539, 366.541, 366.543, 366.545, 366.547, 366.549, 366.551, and 366.553; Subchapter F, concerning Medicaid for Transitioning Foster Care Youth, consisting of §§366.601, 366.603, 366.605, 366.607, 366.609, 366.611, 366.613, 366.615, 366.617, 366.619, 366.621, 366.623, 366.625, 366.627, 366.629, 366.631, 366.633, 366.635, 366.637, 366.639, 366.641, 366.643, 366.645, and 366.647; Subchapter G, concerning TANF-level medical assistance, consisting of §§366.701, 366.703, 366.705, 366.707, 366.709, 366.711, 366.713, 366.715, 366.717, 366.719, 366.721, 366.723, 366.725, 366.727, 366.729, 366.731, 366.733, 366.735, 366.737, 366.739, 366.741, 366.743, 366.745, 366.747, 366.749, 366.751, 366.753, 366.755, 366.757, 366.759, and 366.761; Subchapter H, concerning the Medically Needy Program, consisting of §§366.801, 366.803, 366.805, 366.807, 366.809, 366.811, 366.813, 366.815, 366.817, 366.819, 366.821, 366.823, 366.825, 366.827, 366.829, 366.831, 366.833, 366.835, 366.837, 366.839, 366.841, 366.843, 366.845, 366.847, 366.849, 366.851, 366.853, 366.855, and 366.857; and Subchapter I, concerning emergency medical services for aliens ineligible for regular Medicaid, consisting of §366.901 and §366.903, in new Chapter 366, Medicaid Eligibility for Women, Children, Youth, and Needy Families.

Background and Justification

The existing rules that govern the criteria HHSC uses to determine a person eligible for various Medicaid programs for women, children, youth, and needy families are currently found in Title 1 of the Texas Administrative Code (TAC), Chapters 354 and 374. Many of the eligibility requirements in Chapter 354 and Chapter 374 cite to requirements of the Temporary Assistance for Needy Families Program (TANF), which now are found in Chapter 372.

Proposals to repeal the existing rules governing Medicaid programs for women, children, youth, and needy families in Chapter 354 and Chapter 374 appear elsewhere in this issue of the Texas Register. Repeal of the existing rules will allow the simultaneous adoption of new rules in Chapter 366.

The new rules are proposed to update agency names made obsolete during the consolidation of health and human services agencies in 2004, incorporate current policies, and de-link the Medicaid program rules from the TANF rules. Having the specific eligibility requirements for each program in each program's rules, rather than citing to another program's rules, will make the requirements for the Medicaid programs for women, children, youth, and needy families easier to find and use.

The new rules are also proposed to implement provisions of the federal Children's Health Insurance Program Reauthorization Act of 2009 (CHIPRA 2009), specifically those provisions concerning continuous Medicaid eligibility for newborns and allowing Medicaid coverage for additional qualified aliens 18 years of age and under.

Further, the new rules incorporate a revised income exclusion regarding payments under the Workforce Investment Act of 1998 (WIA), so that HHSC will exclude all income a person receives under WIA, in accordance with 29 U.S.C. §2931(a)(2).

Unless otherwise indicated in this proposal, the new rules do not impose any new requirements that are not already in policy and in use.

Section-by-Section Summary

Subchapter B is entitled Presumptive Medicaid for Pregnant Women Program and is further divided into three divisions. Division 1 is entitled General and contains §366.201 and §366.203. These sections set out the purpose and scope of the subchapter and the definitions of words and terms used in the subchapter. Division 2 is entitled Eligibility Requirements and contains §§366.211, 366.213, 366.215, 366.217, 366.219, 366.221, 366.223, 366.225, 366.227, 366.229, 366.231, 366.233, 366.235, 366.237, 366.239, 366.241, 366.243, and 366.245. These sections set out HHSC's rules governing eligibility for the Presumptive Medicaid for Pregnant Women Program, which provides limited medical coverage, for a limited time, to pregnant women presumed to be eligible by a qualified provider to ensure early access to prenatal care. Proposed new §366.217 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.233(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA. Division 3 is entitled Provider Requirements and contains §366.251 and §366.253. These sections set out HHSC's rules governing the requirements medical providers must follow to provide services under the program.

Subchapter C is entitled Pregnant Women's Medicaid and contains §§366.301, 366.303, 366.305, 366.307, 366.309, 366.311, 366.313, 366.315, 366.317, 366.319, 366.321, 366.323, 366.325, 366.327, 366.329, 366.331, 366.333, 366.335, 366.337, 366.339, 366.341, and 366.343. These sections set out HHSC's eligibility requirements for pregnant women who have income equal to or less than 185% of the Federal Poverty Income Limit to receive services under Medicaid. Proposed new §366.313 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.329(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA.

Subchapter D is entitled Medicaid for Breast and Cervical Cancer and contains §§366.401, 366.403, 366.405, 366.407, 366.409, 366.411, 366.413, 366.415, 366.417, 366.419, and 366.421. These sections set out HHSC's eligibility requirements for a woman to receive medical assistance for treatment of breast and cervical cancer, a program that is operated cooperatively with the Texas Department of State Health Services. Proposed new §366.407(2) provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)).

Subchapter E is entitled Children's Medicaid and contains §§366.501, 366.503, 366.505, 366.507, 366.509, 366.511, 366.513, 366.515, 366.517, 366.519, 366.521, 366.523, 366.525, 366.527, 366.529, 366.531, 366.533, 366.535, 366.537, 366.539, 366.541, 366.543, 366.545, 366.547, 366.549, 366.551, and 366.553. These sections set out HHSC's eligibility criteria and participation requirements for Children's Medicaid, which provides medical assistance to eligible children 18 years of age and under. Proposed new §366.513 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.535(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA. Proposed new §366.539 provides continuous eligibility for a newborn through the month of the newborn's first birthday, as allowed under Section 2112 of CHIPRA 2009.

Subchapter F is entitled Medicaid for Transitioning Foster Care Youth and contains §§366.601, 366.603, 366.605, 366.607, 366.609, 366.611, 366.613, 366.615, 366.617, 366.619, 366.621, 366.623, 366.625, 366.627, 366.629, 366.631, 366.633, 366.635, 366.637, 366.639, 366.641, 366.643, 366.645, and 366.647. These sections set out HHSC's eligibility criteria for the Medicaid for Transitioning Foster Care Youth Program, which provides medical assistance to eligible youths as they leave foster care and transition into the community. Proposed new §366.617 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.633(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA.

Subchapter G is entitled TANF-level Medical Assistance and contains §§366.701, 366.703, 366.705, 366.707, 366.709, 366.711, 366.713, 366.715, 366.717, 366.719, 366.721, 366.723, 366.725, 366.727, 366.729, 366.731, 366.733, 366.735, 366.737, 366.739, 366.741, 366.743, 366.745, 366.747, 366.749, 366.751, 366.753, 366.755, 366.757, 366.759, and 366.761. These sections set out HHSC's eligibility criteria and participation requirements for TANF-level medical assistance, which provides Medicaid coverage to households eligible for TANF. Proposed new §366.713 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.737(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA.

Subchapter H is entitled Medically Needy Program and contains §§366.801, 366.803, 366.805, 366.807, 366.809, 366.811, 366.813, 366.815, 366.817, 366.819, 366.821, 366.823, 366.825, 366.827, 366.829, 366.831, 366.833, 366.835, 366.837, 366.839, 366.841, 366.843, 366.845, 366.847, 366.849, 366.851, 366.853, 366.855, and 366.857. These sections set out HHSC's eligibility criteria and participation requirements for the Medically Needy Program, which provides Medicaid benefits to eligible persons with high medical bills whose family income is too high to qualify for other Medicaid programs and who use their excess income to help pay unpaid medical bills. Proposed new §366.813 provides coverage under this program for a qualified alien 18 years of age and under, as allowed under Section 214 of CHIPRA 2009 (§1903(v)(4) of the Social Security Act (42 U.S.C. §1396b(v)(4)). Proposed new §366.835(6) removes the specific income exclusion for on-the-job training payments made to children under WIA, so that HHSC can exclude all payments under WIA.

Subchapter I is entitled Emergency Medical Services for Aliens Ineligible for Regular Medicaid and consists of §366.901 and §366.903. These sections set out HHSC's rules governing the program administered under Title XIX of the Social Security Act (42 U.S.C. §1396 et seq.) and 42 CFR §435.139, which require the state to provide medical services for the treatment of an emergency medical condition to an alien who is ineligible for regular Medicaid due to immigration status.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for the first five years the rule changes are in effect, the proposed changes would have a cost to state government of $10.8 million General Revenue ($36.8 million All Funds) in year one, $36.1 million General Revenue ($129.3 million All Funds) in year two, $35.9 million General Revenue ($129.3 million All Funds) in years three, four and five. The changes do not have foreseeable implications relating to costs or revenues of local governments or local human service agencies except that those agencies that provide services to qualified alien children will now be eligible to receive Medicaid reimbursement for covered services. This rule only shows the Medicaid impact for the implementation of legal permanent residents and not the CHIP impact, which is anticipated to use federal funds instead of only general revenue. Those rules have not been finalized for consideration.

Small Business and Micro-business Impact Analysis

Ms. Rymal has determined that there will be no effect on small businesses or micro-businesses to comply with the proposal, because the rules do not require them to alter their business practices. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.

Public Benefit

Joanne Molina, Deputy Executive Commissioner for Social Services, has determined that, for each year of the first five years the new sections are in effect, the anticipated public benefit expected as a result of enforcing the new sections is that HHSC's rules governing Medicaid eligibility for women, children, youth, and needy families will be easier for the public to find and use. The new provisions resulting from CHIPRA 2009 will allow more children in Texas to receive needed medical services.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Texas Government Code.

Public Comment

Written comments on the proposal may be submitted to Regina Perez, Health and Human Services Commission, Office of Family Services, MC 2039, 909 West 45th Street, Austin, TX 78751, or by e-mail to gina.perez@hhsc.state.tx.us, within 30 days after publication of this proposal in the Texas Register.

Public Hearing

HHSC will hold a public hearing on December 11, 2009, at 2:00 p.m. (Central Time) to receive public comment on the proposal. The hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring Americans with Disabilities Act (ADA) accommodation or auxiliary aids or services should contact Graciela Reyna by calling (512) 206-4778, at least 72 hours prior to the hearing so appropriate arrangements can be made.

SUBCHAPTER B. PRESUMPTIVE MEDICAID FOR PREGNANT WOMEN PROGRAM

DIVISION 1. GENERAL

1 TAC §366.201, §366.203

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.201.Purpose and Scope.

(a) This subchapter establishes the criteria:

(1) for a pregnant woman to receive medical care under the Presumptive Medicaid for Pregnant Women Program; and

(2) for a medical provider to provide services under the Presumptive Medicaid for Pregnant Women Program.

(b) In accordance with 42 U.S.C. §1396r-1, the Presumptive Medicaid for Pregnant Women Program provides medical coverage as described in subsection (c) of this section, for a limited time, to ensure early access to prenatal care to pregnant women presumed to be eligible by a qualified provider. The Texas Health and Human Services Commission administers the program through contracts with third-party medical providers, as provided in §366.251 of this subchapter (relating to Eligibility Requirements for Medical Providers).

(c) Medicaid coverage for presumptive eligibility covers, for a limited time, medically necessary services, except labor, delivery, inpatient services, and Texas Health Steps services.

(d) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.203.Definitions.

In this subchapter, the following words and terms have the following meanings, unless the context clearly indicates otherwise.

(1) Applicant--A person seeking assistance under the Presumptive Medicaid for Pregnant Women Program 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 whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(3) Budget group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for Medicaid. The budget group may include both members who are eligible for Medicaid and those who are not.

(4) Certified group--Members of a budget group who are eligible for and receiving Medicaid.

(5) Child--A household member under 19 years of age.

(6) CFR--Code of Federal Regulations.

(7) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(8) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(9) Eligible group--A category of people who are eligible for the Presumptive Medicaid for Pregnant Women Program. In other Medicaid programs, an eligible group may be called a coverage group.

(10) Federal Poverty Income Limit (FPIL)--The household income guidelines issued annually and published in the Federal Register by the U.S. Department of Health and Human Services. Percentages of these guidelines are used to determine income eligibility for the Presumptive Medicaid for Pregnant Women Program and certain other public assistance programs. In other programs, the FPIL may be referred to as the Federal Poverty Level or the Federal Poverty Guidelines.

(11) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(12) Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an individual who is incompetent or incapacitated if the person is determined by the Texas Health and Human Services Commission (HHSC) to be acting responsibly on behalf of the applicant.

(13) Qualified provider--A health care practitioner, institution, or other entity enrolled in the medical assistance program and authorized to submit claims for payment or reimbursement of medical assistance.

(14) Recipient--A person receiving Presumptive Medicaid for Pregnant Women Program services.

(15) Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

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

(17) Unearned income--Income that is not earned income.

(18) U.S.C.--United States Code.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905103

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 2. ELIGIBILITY REQUIREMENTS

1 TAC §§366.211, 366.213, 366.215, 366.217, 366.219, 366.221, 366.223, 366.225, 366.227, 366.229, 366.231, 366.233, 366.235, 366.237, 366.239, 366.241, 366.243, 366.245

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.211.General Eligibility Requirements.

To be eligible for benefits under the Presumptive Medicaid for Pregnant Women Program, a person must:

(1) meet the criteria for an eligible group as described in §366.213 of this division (relating to Eligible Group);

(2) comply with the application requirements in this division; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.213.Eligible Group.

To qualify for the Presumptive Medicaid for Pregnant Women Program, an applicant must be a pregnant woman with countable income less than or equal to 185% of the Federal Poverty Income Limit.

§366.215.Application Requirements and Processing.

(a) An applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) applies at a qualified provider site.

(b) A qualified provider certifies an eligible applicant for the month of determination and the following month, as required by §1920(b)(1) of the Social Security Act (42 U.S.C. §1396r-1(b)(1)).

(c) The qualified provider then submits the application for assistance to the Texas Health and Human Services Commission for an eligibility determination for regular Medicaid.

(d) A recipient is limited to one eligibility period per pregnancy.

§366.217.Citizenship.

In accordance with 42 CFR §435.406, to be eligible for the Presumptive Medicaid for Pregnant Women Program, a person must be:

(1) a citizen of the U.S.;

(2) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(3) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(A) the alien is an honorably discharged veteran or active duty military personnel;

(B) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(C) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(D) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, Item A-343, How to Determine Eligibility for Battered Aliens; or

(E) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(4) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b).

§366.219.Social Security Number.

An applicant must provide or apply for a social security number (SSN) (including children referred to the Children's Health Insurance Program (CHIP)), except that the Texas Health and Human Services Commission:

(1) refers a Medicaid-eligible mother directly to the Social Security Administration to obtain an SSN for her newborn, if her newborn was certified for Medicaid as a result of a notice from an authorized medical provider (for example, a hospital or clinic); and

(2) requests, but does not require, budget group members who are not eligible for Medicaid to provide or apply for an SSN.

§366.221.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.223.Child Support and Medical Support.

If an applicant volunteers to receive services provided by the Office of Attorney General of Texas (OAG), the Texas Health and Human Services Commission must collect absent parent information and refer the child's case to the OAG.

§366.225.Resources.

The Texas Health and Human Services Commission does not request or verify resources for the Presumptive Medicaid for Pregnant Women Program.

§366.227.Income Limit.

To be eligible for benefits under the Presumptive Medicaid for Pregnant Women Program, an applicant must meet the income requirement established in §366.213 of this division (relating to Eligible Group).

§366.229.Determining Whose Income Counts.

To determine income eligibility for the Presumptive Medicaid for Pregnant Women Program, the Texas Health and Human Services Commission (HHSC) counts the income of:

(1) the members of the certified group (that is, the applicant);

(2) the applicant's siblings under 19 years of age, if the applicant is a minor;

(3) the applicant's children under 19 years of age;

(4) the applicant's spouse;

(5) stepparents living with the certified group, if the applicant is a minor;

(6) in the case of an unmarried minor parent recipient, parents of the minor who live with the minor; and

(7) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

§366.231.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income for each employed person whose needs are included in the budget group or certified group or who is a disqualified member;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the person incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments made by a member of the budget group; and

(6) up to $75 per month in regular child support disregard payments received per household, except HHSC counts all child support payments a household received if HHSC determines the household has violated an agreement to assign child support to the State.

§366.233.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) funds from educational assistance payments (but only during the quarter, semester, or applicable period that the payment is intended to cover);

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid; and

(32) crime victim's compensation payments.

§366.235.Third-party Resources.

Medicaid is considered the payor of last resort for a person's medical expenses. As a condition of eligibility, in accordance with 42 CFR §§433.138 - 433.148, an applicant or recipient must:

(1) assign to the Texas Health and Human Services Commission (HHSC) the applicant's or recipient's right to recover any third-party resources available for payment of medical expenses covered under the Texas State Plan for Medical Assistance; and

(2) report to HHSC any third-party resource within 60 days after learning about the third-party resource.

§366.237.Medicaid Eligibility Effective Date.

(a) The Medicaid eligibility effective date is the date the qualified provider receives the application for presumptive eligibility and makes the presumptive eligibility determination.

(b) In accordance with 42 U.S.C. §1396r-1(b)(1), coverage under the Presumptive Eligibility for Pregnant Women Program ends with (and includes) the earlier of:

(1) the date the Texas Health and Human Services Commission makes an eligibility determination for regular Medicaid; or

(2) the last day of the month after the month the qualified provider made the presumptive eligibility determination.

§366.239.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.241.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.243.Requirement to Report Changes.

(a) A recipient must report:

(1) a change of address; and

(2) termination of the pregnancy.

(b) If a recipient reports a change described in subsection (a) of this section, the Texas Health and Human Services Commission takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.245.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905104

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


DIVISION 3. PROVIDER REQUIREMENTS

1 TAC §366.251, §366.253

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.251.Eligibility Requirements for Medical Providers.

(a) A medical provider that wishes to contract with the Texas Health and Human Services Commission (HHSC) to provide services under the Presumptive Medicaid for Pregnant Women Program must apply on the form prescribed by HHSC. The form is available from HHSC, Attn: Texas Works Policy, MC 2039, P.O. Box 12668, Austin, TX 78711-2668.

(b) A medical provider applicant must:

(1) be an eligible Medicaid provider;

(2) offer services provided by outpatient hospitals, rural health clinics, or clinics, either provided or directed by physicians (clinics may be administered by someone who is not a physician), as further described in §1905(a)(2)(A) or (B) of the Social Security Act (42 U.S.C. §1396d(a)(2)(A) or (B)), or §1905(a)(9) of the Social Security Act (42 U.S.C. §1396d(a)(9)), or both; and

(3) receive funds from, or participate in, one of the following programs:

(A) health centers for medically underserved populations providing primary health services, including migrant health centers, under 42 U.S.C. §254b;

(B) rural health outreach networks, under 42 U.S.C. §254c;

(C) maternal and child health services block grant programs, under 42 U.S.C. §701 et seq.);

(D) the Indian Health Care Improvement Act, Public Law 94-437, as amended (25 U.S.C. §1651 et seq.);

(E) Special Supplemental Food Program for Women, Infants, and Children (WIC), under 42 U.S.C. §1786;

(F) Commodity Supplemental Food Program of the Agriculture and Consumer Protection Act of 1973, Public Law 93-86, as amended (7 U.S.C. §612c note);

(G) a state perinatal program; or

(H) the Indian Health Service or a health program or facility operated by a tribe or tribal organization under the Indian Self-Determination Act, Public Law 93-638, as amended (25 U.S.C. §450f et seq.).

(c) A medical provider applicant must demonstrate the capability to make presumptive eligibility determinations and receive:

(1) preliminary HHSC approval of the criteria in subsection (b) of this section; and

(2) final HHSC approval, based on an operating plan as described in subsection (d) of this section, which is developed with the HHSC regional director responsible for Medicaid programs for pregnant women.

(d) The operating plan contains the details of the operating procedures between the local HHSC office and the medical provider. The operating plan must specify how the medical provider will:

(1) meet the basic intent of the Presumptive Medicaid for Pregnant Women Program;

(2) provide access to prenatal care services as a part of the facility's ongoing service package, with the following stipulations:

(A) a provider not offering prenatal care services must, through a referral and tracking system, coordinate access to prenatal care services; and

(B) a provider must ensure that services include a case management approach, which assists pregnant women during the Medicaid application process and prenatal care visits;

(3) provide or assure verification of pregnancy;

(4) ensure that prenatal care appointments are scheduled within 10 working days after a presumptive eligibility decision, unless HHSC gives an exception, in which case a provider must report quarterly on the provider's progress toward meeting the requirement;

(5) provide enough trained staff to interview and process the budget of each pregnant woman;

(6) monitor the accuracy of presumptive eligibility determinations;

(7) ensure that presumptive eligibility application packets are delivered to an HHSC service site within one working day after eligibility decisions;

(8) ensure that medical provider staff are trained by HHSC on how to determine presumptive eligibility;

(9) maintain a record of each presumptive eligibility application decision, both certified and denied, for three years after the decision date;

(10) submit required reports to the HHSC regional director responsible for Medicaid for pregnant women;

(11) prepare an applicant for her HHSC interview by providing her with a list of HHSC-required documents and informing her as to what information HHSC must verify;

(12) keep the financial information of applicants and recipients confidential; and

(13) provide services without discrimination on the grounds of race, color, national origin, age, sex, or disability.

(e) HHSC may verify with a third-party agency that a medical provider applicant meets the criteria specified in subsections (b) - (d) of this section.

(f) HHSC notifies a medical provider applicant of HHSC's approval or disapproval of qualified provider status for the provider.

§366.253.Monitoring Medical Providers.

(a) The Texas Health and Human Services Commission (HHSC) monitors providers of presumptive Medicaid services.

(b) HHSC may discontinue eligibility operating procedures with providers that fail to meet program requirements or to comply with the local operating plan.

(c) HHSC cancels the qualified provider status of providers that intentionally misrepresent program eligibility requirements or are negligent in determining eligibility.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905105

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER C. PREGNANT WOMEN'S MEDICAID

1 TAC §§366.301, 366.303, 366.305, 366.307, 366.309, 366.311, 366.313, 366.315, 366.317, 366.319, 366.321, 366.323, 366.325, 366.327, 366.329, 366.331, 366.333, 366.335, 366.337, 366.339, 366.341, 366.343

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.301.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria and participation requirements for Pregnant Women's Medicaid, in accordance with 42 U.S.C. §1396d(a).

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§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 whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(3) Budget group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for Medicaid. The budget group may include both members who are eligible for Medicaid and those who are not. For Pregnant Women's Medicaid, the needs of the applicant's unborn child are included in the budget group.

(4) Certified group--Members of a budget group who are eligible for and receiving Medicaid.

(5) CFR--Code of Federal Regulations.

(6) Child--Any household member under 19 years of age unless the child is married or legally emancipated.

(7) Continuous coverage--Uninterrupted eligibility for the extent of the certification period.

(8) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(9) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(10) Eligible group--A category of people who are eligible for Pregnant Women's Medicaid. In other Medicaid programs, an eligible group may be called a coverage group.

(11) Federal Poverty Income Limit (FPIL)--The household income guidelines issued annually and published in the Federal Register by the U.S. Department of Health and Human Services. Percentages of these guidelines are used to determine income eligibility for Pregnant Women's Medicaid and certain other public assistance programs. In other programs, the FPIL may be referred to as the Federal Poverty Level or the Federal Poverty Guidelines.

(12) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(13) Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an individual who is incompetent or incapacitated if the person is determined by the Texas Health and Human Services Commission (HHSC) to be acting responsibly on behalf of the applicant.

(14) Recipient--A person receiving Pregnant Women's Medicaid services.

(15) Retroactive coverage--Payment for Medicaid-reimbursable medical services received up to three months before the month of application.

(16) Temporary Assistance for Needy Families (TANF)--A program that provides temporary benefits (cash assistance) and work opportunities to families with needy dependent children, authorized under Title IV of the Social Security Act.

(17) Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

(18) Unearned income--Income that is not earned income, including dividends and withdrawals from excluded resources.

(19) U.S.C.--United States Code.

§366.305.General Eligibility Requirements.

To be eligible for Pregnant Women's Medicaid, a person must:

(1) meet the criteria for an eligible group as described in §366.307 of this subchapter (relating to Eligible Group);

(2) comply with the Texas Health and Human Services Commission's application requirements in this subchapter; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.307.Eligible Group.

To be eligible for Pregnant Women's Medicaid, an applicant must be a pregnant woman with countable income equal to or less than 185% of the Federal Poverty Income Limit.

§366.309.Application Requirements.

(a) To apply for Pregnant Women's Medicaid benefits, an applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) must:

(1) use the application prescribed by the Texas Health and Human Services Commission (HHSC) and complete it according to HHSC instructions:

(A) in writing, using a paper application obtained via telephone, Internet request, or other means;

(B) online, using the application process available over the Internet;

(C) over the telephone, through the State's toll-free telephone number; or

(D) in person, by visiting an HHSC benefits office;

(2) provide all requested information according to HHSC instructions; and

(3) sign the application for assistance under penalty of perjury.

(b) If someone helps an applicant, authorized representative, or person acting responsibly for the applicant complete the application for assistance, the name of the person completing the form must appear as requested on the application.

(c) If HHSC sends an applicant, authorized representative, or person acting responsibly a request for missing information or verification documents, or both, the applicant, authorized representative, or person acting responsibly must provide the requested information to HHSC by the due date given in the request, or eligibility may be denied.

§366.311.Application Processing.

(a) The Texas Health and Human Services Commission (HHSC) allows any office of a state health and human services agency to accept an initial application.

(b) HHSC contracts with third parties to accept applications from hospital districts (including state-owned teaching hospitals), federally qualified health centers, and county health departments.

(c) HHSC may conduct a personal interview with an initial applicant if HHSC has received conflicting information related to household membership, income, or assets that affects eligibility and the information cannot be verified through other means.

(d) HHSC reopens a denied initial application, so long as the household complies with the missed requirements within 60 days after the date the application was submitted. HHSC otherwise requires the household to file a new application.

(e) HHSC may reopen an application for three months prior coverage if:

(1) within two years after the application was filed, the applicant requests that the application be reopened; and

(2) a Medicaid eligibility determination was not previously made for the three-month prior period.

(f) For an applicant who is potentially eligible but unable to provide proof of eligibility, HHSC:

(1) postpones verifications and provides Medicaid coverage to ensure access to medical care within 30 days after the application date;

(2) continues the coverage of an applicant who provides postponed verification by the 30th day after the application date; and

(3) denies the coverage of an applicant who fails to meet the 30-day deadline.

§366.313.Citizenship.

To be eligible for Pregnant Women's Medicaid, an applicant must be:

(1) a citizen or national of the United States (U.S.);

(2) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(3) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(A) the alien is an honorably discharged veteran or active duty military personnel;

(B) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(C) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(D) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, Item A-343, How to Determine Eligibility for Battered Aliens; or

(E) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(4) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b).

§366.315.Social Security Number.

As a condition of eligibility, an applicant must provide or apply for her social security number within 30 days after the application date, in accordance with §366.311(f) of this subchapter (relating to Application Processing).

§366.317.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.319.Child Support and Medical Support.

A pregnant woman receiving Medicaid must provide the name and last known address of the legal or biological father of her unborn child. Applicants and recipients may volunteer to receive child support or medical support services. There is no penalty for noncooperation.

§366.321.Resources.

The Texas Health and Human Services Commission does not request or verify resources for Pregnant Women's Medicaid.

§366.323.Income Limits.

To be eligible for Pregnant Women's Medicaid, an applicant or recipient must meet the income requirement established in §366.307 of this subchapter (relating to Eligible Group).

§366.325.Determining Whose Income Counts.

(a) To determine income eligibility for Pregnant Women's Medicaid, the Texas Health and Human Services Commission (HHSC) counts the income of:

(1) the members of the budget group;

(2) each parent of a child in the certified group who lives in the household;

(3) each sibling, if included in the budget group, of a dependent child in the certified group who lives in the household;

(4) stepparents living with the certified group;

(5) in the case of an unmarried minor parent recipient, parents of the minor who live with the minor; and

(6) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

(b) A child's needs, income, and resources may be excluded when determining eligibility of the child's siblings if the caretaker chooses not to apply for Medicaid for the excluded child.

(c) HHSC does not count the applied income of stepparents or grandparents with whom the child lives if the income resulted in the denial of eligibility for Temporary Assistance for Needy Families.

§366.327.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the person incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments; and

(6) up to $75 per month in regular child support payments, except HHSC counts all child support payments an applicant received if HHSC determines the applicant has violated an agreement to assign child support to the State.

§366.329.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) funds from educational assistance payments (but only during the quarter, semester, or applicable period that the payment is intended to cover);

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid; and

(32) crime victim's compensation payments.

§366.331.Third-party Resources.

Medicaid is considered the payor of last resort for a person's medical expenses. As a condition of eligibility, in accordance with 42 CFR §§433.138 - 433.148, an applicant or recipient must:

(1) assign to the Texas Health and Human Services Commission (HHSC) the applicant's or recipient's right to recover any third-party resources available for payment of medical expenses covered under the Texas State Plan for Medical Assistance; and

(2) report to HHSC any third-party resource within 60 days after learning about the third-party resource.

§366.333.Medicaid Eligibility Effective Date.

The Texas Health and Human Services Commission (HHSC) determines the Medicaid eligibility effective 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 has continuous coverage for Medicaid through the second month after the pregnancy terminates.

§366.335.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.337.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.339.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.341.Requirement to Report Changes.

(a) A recipient must report:

(1) a change of address; and

(2) termination of the pregnancy.

(b) If a recipient reports a change described in subsection (a) of this section, the Texas Health and Human Services Commission takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.343.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905106

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER D. MEDICAID FOR BREAST AND CERVICAL CANCER

1 TAC §§366.401, 366.403, 366.405, 366.407, 366.409, 366.411, 366.413, 366.415, 366.417, 366.419, 366.421

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.401.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria and participation requirements for Medicaid for treatment of breast and cervical cancer, as authorized by 42 United States Code §1396r-1b.

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.403.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 the Medicaid for Breast and Cervical Cancer Program (MBCC) 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) CFR--Code of Federal Regulations.

(3) Creditable coverage--A health insurance plan that covers any aspect of breast or cervical cancer treatment, including:

(A) a group health plan;

(B) health insurance coverage;

(C) Medicare (Part A or B);

(D) armed forces insurance;

(E) a state health benefits risk pool; and

(F) Medicaid coverage other than MBCC.

(4) Eligible group--A category of people who are eligible for MBCC. In other Medicaid programs, an eligible group may be called a coverage group.

(5) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(6) Recipient--A person receiving MBCC services, including a person who is renewing eligibility for MBCC.

(7) Screen--A test for breast or cervical cancer conducted under the Centers for Disease Control and Prevention's Breast and Cervical Cancer Early Detection Program.

(8) Texas Department of State Health Services (DSHS)--The state agency that identifies and refers applicants for MBCC.

(9) Texas Works Handbook--A Texas Health and Human Services Commission manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

(10) U.S.C.--United States Code.

§366.405.Eligible Group.

The eligible group consists of women screened and found to need treatment for breast or cervical cancer through the Centers for Disease Control and Prevention's National Breast and Cervical Cancer Early Detection Program, created by Public Law 101-354 and administered by the Texas Department of State Health Services as Breast and Cervical Cancer Services.

§366.407.Eligibility Requirements.

To be eligible for Medicaid for Breast and Cervical Cancer, an applicant must:

(1) be a woman under 65 years of age;

(2) be:

(A) a citizen or national of the U.S.;

(B) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(C) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(i) the alien is an honorably discharged veteran or active duty military personnel;

(ii) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(iii) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(iv) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, Item A-343, How to Determine Eligibility for Battered Aliens; or

(v) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(D) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b);

(3) be a resident of Texas, as determined by the Texas Health and Human Services Commission in accordance with 42 CFR §435.403;

(4) provide or apply for a social security number before she is certified;

(5) not be otherwise eligible for Medicaid; and

(6) not have creditable coverage.

§366.409.Application Requirements and Processing.

(a) An applicant is identified through the Texas Department of State Health Services Breast and Cervical Cancer Services (BCCS).

(b) A BCCS medical provider screens and diagnoses qualifying medical conditions and either makes a determination of presumptive eligibility, or, if the medical provider is not enrolled as a Medicaid provider, makes a referral to a qualified entity for determination of presumptive eligibility.

(c) BCCS Medicaid providers have been designated as qualified entities for presumptive eligibility determinations.

(d) A BCCS Medicaid provider, or a qualified Medicaid provider to whom a woman is referred, sends the applicant's application packet containing the provider's determination of presumptive eligibility and an application for assistance to the Texas Health and Human Services Commission (HHSC) within five working days after the date the presumptive eligibility determination is made. HHSC determines eligibility no later than the end of the month following the month the presumptive eligibility determination is made.

(e) The period of presumptive Medicaid eligibility is specified in 42 U.S.C. §1396r-1b(b)(1) as beginning with the date a qualified entity determines eligibility under the State Plan, based upon preliminary information, and ends with (and includes) the earlier of:

(1) the date an eligibility determination is made by the Texas Health and Human Services Commission (HHSC); or

(2) the last day of the month following the month presumptive eligibility was determined.

§366.411.Medicaid Eligibility Effective Date.

The period of coverage begins no earlier than the day after screening and diagnosis of the qualifying medical condition, and lasts for the duration of the cancer treatment or until the woman no longer meets all eligibility requirements, whichever is earlier.

§366.413.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.415.Eligibility Renewal.

(a) A recipient who returns a completed renewal application and all necessary documentation continues to receive ongoing Medicaid coverage.

(b) The Texas Health and Human Services Commission reviews a recipient's Medicaid eligibility every six months.

(c) A recipient's certification ends before the end of her six-month certification period if the recipient:

(1) dies;

(2) moves out of state;

(3) reaches 65 years of age;

(4) receives creditable coverage; or

(5) is no longer receiving treatment.

§366.417.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.419.Requirement to Report Changes.

(a) A recipient must report to the Texas Health and Human Services Commission (HHSC) if she:

(1) moves out of state;

(2) receives creditable coverage; or

(3) is no longer receiving treatment.

(b) If a recipient reports a change that affects the recipient's eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.421.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905107

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER E. CHILDREN'S MEDICAID

1 TAC §§366.501, 366.503, 366.505, 366.507, 366.509, 366.511, 366.513, 366.515, 366.517, 366.519, 366.521, 366.523, 366.525, 366.527, 366.529, 366.531, 366.533, 366.535, 366.537, 366.539, 366.541, 366.543, 366.545, 366.547, 366.549, 366.551, 366.553

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.501.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria and participation requirements for Children's Medicaid.

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.503.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 Children'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 whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(3) Budget group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for Medicaid. The budget group may include both members who are eligible for Medicaid and those who are not.

(4) Caretaker--An adult who is present in the home, who supervises and cares for a dependent child, and who meets relationship requirements in §366.519(b) of this subchapter (relating to Relationship and Domicile).

(5) Certified group--Members of a budget group who are eligible for and receiving Medicaid.

(6) CFR--Code of Federal Regulations.

(7) Child--Any household member from birth through the month of the member's 19th birthday unless the child is married or legally emancipated.

(8) Continuous coverage--Uninterrupted eligibility for the extent of the certification period.

(9) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(10) Disqualified member--A person who normally would be considered a participating member of a household but whose needs are not considered because the person failed to meet or comply with a program requirement.

(11) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(12) Eligible group--A category of people who are eligible for Children's Medicaid. In other Medicaid programs, an eligible group may be called a coverage group.

(13) Fair market value--The amount of money an item would bring if sold in the current local market.

(14) Federal Poverty Income Limit (FPIL)--The household income guidelines issued annually and published in the Federal Register by the U.S. Department of Health and Human Services. Percentages of these guidelines are used to determine income eligibility for Children's Medicaid and certain other public assistance programs. In other programs, the FPIL may be referred to as the Federal Poverty Level or the Federal Poverty Guidelines.

(15) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(16) Newborn--A child from birth through 12 months of age.

(17) Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an individual who is incompetent or incapacitated if the person is determined by the Texas Health and Human Services Commission to be acting responsibly on behalf of the applicant.

(18) Recipient--A person receiving Children's Medicaid services, including a person who is renewing eligibility for Children's Medicaid.

(19) Resources--Cash (or its equivalent) and property that is convertible to cash (or its equivalent). Resources include:

(A) cash from income that is not obligated in the month of receipt; and

(B) lump sum payments that may be received intermittently and no more often than once annually.

(20) Retroactive coverage--Payment for Medicaid-reimbursable medical services received up to three months before the month of application.

(21) Temporary Assistance for Needy Families (TANF)--A program that provides temporary benefits (cash assistance) and work opportunities to families with needy dependent children, authorized under Title IV of the Social Security Act.

(22) Texas Health Steps--Federally mandated Medicaid services that provide medical and dental check-ups, diagnosis, and treatment to eligible clients from birth through age 20. Federally, this program is known as the Early Periodic Screening, Diagnostic, and Treatment (EPSDT) Program.

(23) Unearned income--Income that is not earned income, including dividends and withdrawals from excluded resources.

(24) U.S.C.--United States Code.

§366.505.General Eligibility Requirements.

To be eligible for Children's Medicaid, a person must:

(1) meet the criteria for an eligible group as described in §366.507 of this subchapter (relating to Eligible Groups);

(2) comply with the Texas Health and Human Services Commission's initial and renewal application requirements in this subchapter; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.507.Eligible Groups.

(a) To be eligible for Children's Medicaid, an applicant must be:

(1) a newborn with countable income equal to or less than 185% of the Federal Poverty Income Limit (FPIL);

(2) a child one to five years of age with countable income equal to or less than 133% of the FPIL;

(3) a child six to 18 years of age with countable income equal to or less than 100% of the FPIL;

(4) a newborn whose birth mother was a Texas Medicaid recipient when the child was born;

(5) a child born while the child's mother was incarcerated in a Texas criminal justice facility as provided by the Texas Human Resources Code §80.003; or

(6) a child who would be eligible for the Temporary Assistance for Needy Families Program, except for the applied income of the stepparent or grandparents with whom the child lives.

(b) A parent or caretaker may choose to exclude other siblings from the Medicaid budget group. If a child is excluded, the child must remain excluded for all Medicaid programs. A parent or caretaker may not exclude a child from the parent or caretaker's budget group. If a child is excluded from his or her siblings' budget group, the parent or caretaker of the excluded child cannot receive Medicaid.

§366.509.Application Requirements.

(a) To apply for Children's Medicaid benefits, an applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) must:

(1) use the application prescribed by the Texas Health and Human Services Commission (HHSC) and complete it according to HHSC instructions:

(A) in writing, using a paper application obtained via telephone, Internet request, or other means;

(B) online, using the application process available over the Internet;

(C) over the telephone, through the State's toll-free telephone number; or

(D) in person, by visiting an HHSC benefits office;

(2) provide all requested information according to HHSC instructions; and

(3) sign the application for assistance under penalty of perjury.

(b) If someone helps an applicant, authorized representative, or person acting responsibly for the applicant complete the application for assistance, the name of the person completing the form must appear as requested on the application.

(c) If HHSC sends an applicant, authorized representative, or person acting responsibly a request for missing information or verification documents, or both, the applicant, authorized representative, or person acting responsibly must provide the requested information to HHSC by the due date given in the request, or eligibility may be denied.

§366.511.Application Processing.

(a) The Texas Health and Human Services Commission (HHSC) allows any office of a state health and human services agency to accept an initial application.

(b) HHSC contracts with third parties to accept applications from hospital districts (including state-owned teaching hospitals), federally qualified health centers, and county health departments.

(c) HHSC may conduct a personal interview with an initial applicant if HHSC has received conflicting information related to household composition, income, or resources that affects eligibility and the information cannot be verified through other means.

(d) HHSC reopens a denied initial application, so long as the household complies with the missed requirements within 60 days after the date the application was submitted. HHSC otherwise requires the household to file a new application.

(e) HHSC reopens a denied renewal application, so long as the household complies with the missed requirements within 30 days after the last benefit month. HHSC otherwise requires the household to file a new application.

(f) HHSC may reopen an application for three months prior coverage if:

(1) within two years after the application was filed, the applicant requests that the application be reopened; and

(2) a Medicaid eligibility determination was not previously made for the three-month prior period.

§366.513.Citizenship.

To be eligible for Children's Medicaid, an applicant must be:

(1) a citizen or national of the United States (U.S.); or

(2) an alien who meets the definition of a qualified alien at 8 U.S.C. §1641.

§366.515.Social Security Number.

An applicant must provide or apply for a social security number (SSN) (including children referred to the Children's Health Insurance Program (CHIP)), except the Texas Health and Human Services Commission (HHSC):

(1) does not require an SSN for a newborn until the earlier of six months after birth or when HHSC reviews Medicaid eligibility;

(2) refers a Medicaid-eligible mother directly to the Social Security Administration to obtain an SSN for her newborn, if her newborn was certified for Medicaid as a result of a notice from an authorized medical provider (for example, a hospital or clinic); and

(3) requests, but does not require, budget group members who are not eligible for Medicaid to provide or apply for an SSN.

§366.517.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.519.Relationship and Domicile.

(a) An applicant or recipient must live in a home with a caretaker who is present in the home and supervises and cares for the applicant or recipient. A home is a family setting maintained or being established, as evidenced by continuation of responsibility for day-to-day care of the applicant or recipient.

(b) A caretaker must be the applicant's or recipient's:

(1) father or mother;

(2) grandparent, to the degree of a "great, great, great" grandparent;

(3) brother or sister;

(4) uncle or aunt, to the degree of a "great, great" uncle or aunt;

(5) first cousin;

(6) nephew or niece, to the to the degree of a "great, great" nephew or niece;

(7) stepfather or stepmother;

(8) stepbrother or stepsister; or

(9) first cousin once removed.

(c) A recipient who is in the group described in §366.507(a)(6) of this subchapter (relating to Eligible Groups) (that is, a child who would be eligible for the Temporary Assistance for Needy Families Program, except for the applied income of the stepparent or grandparents with whom the child lives) must live or be expected to live with a legal parent.

(d) An independent child in a certified group may live alone or with a person who is not a parent or relative. An independent child is a child who does not live with a parent and who:

(1) is able to apply for Medicaid on his or her own behalf; or

(2) is eligible for Medicaid because a responsible person who is not within the degree of relationship required for eligibility in subsection (b) of this section applies on the child's behalf.

§366.521.Child Support and Medical Support.

If a household applying only for Children's Medicaid volunteers to receive services provided by the Office of Attorney General of Texas (OAG), the Texas Health and Human Services Commission will collect absent parent information and refer the child's case to the OAG.

§366.523.Resources.

(a) Resource limits. A household meets the resources eligibility requirement if the household's countable resources are at or below:

(1) $3,000 for a household with a member who is aged or disabled and meets relationship requirements, even if the aged or disabled member is not part of the Medicaid budget group; or

(2) $2,000 for all other households.

(b) Value of a nonliquid resource. The Texas Health and Human Services Commission (HHSC) considers the value of a nonliquid resource, except for a vehicle, to be its equity value. HHSC determines the equity value by subtracting any money owed on the resource and any reasonable cost associated with selling or transferring the resource from the fair market value.

§366.525.Vehicles.

(a) The Texas Health and Human Services Commission (HHSC) considers the value of a vehicle to be its fair market value.

(b) HHSC exempts the value of the highest valued countable vehicle from countable resources.

(c) HHSC exempts the value of a vehicle from countable resources, if:

(1) it is income producing;

(2) it is used for a disabled household member;

(3) its equity value is equal to or less than $1,500;

(4) it is used for long distance travel for employment;

(5) it is used as the household's home; or

(6) it is necessary to carry fuel or water anticipated to be the primary source of fuel or water for the household during the certification period.

(d) HHSC exempts for each adult budget group member up to $4,650 of the value of any vehicle not exempt under subsection (b) of this section. HHSC exempts any other licensed vehicle a minor (under 18 years of age) drives to work, training, school, or to seek employment if the fair market value (FMV) is less than $4,650. HHSC counts the FMV in excess of $4,650 as a resource.

§366.527.Exempt Resources.

The Texas Health and Human Services Commission (HHSC) exempts the following from countable resources:

(1) funds in a retirement account (even if accessible, so long as the funds remain in the account);

(2) balances in the Texas Guaranteed Tuition Plan (formerly called the Texas Tomorrow Fund) even if accessible, so long as the funds remain in the account;

(3) crime victim's compensation payments;

(4) earned income tax credit (EIC) payments to applicants the month of receipt and the following month, and to recipients the month of receipt and the following 11 months, unless there is a break in certification of more than 30 days, in which case any remaining portion of the EIC payment is counted as a resource;

(5) payments or allowances made under any federal law for the purpose of energy assistance;

(6) federal disaster payments and comparable disaster assistance provided by states, local governments, and disaster assistance organizations if the household is subject to legal penalties if the funds are not used as intended;

(7) transitional living allowances;

(8) any resource federal law excludes;

(9) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(10) the cash value of life insurance policies;

(11) an amount up to $7,500 per person of prepaid burial insurance (or of a prepaid funeral plan);

(12) loans, if the circumstances satisfy HHSC that there exists an understanding the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid;

(13) personal possessions HHSC determines are essential for daily living, such as clothing, jewelry, furniture, livestock, and farm equipment;

(14) burial plots;

(15) the homestead and surrounding real property, including:

(A) any structure, including a houseboat or a motor home, the household uses as its primary residence;

(B) surrounding real property divided by a public right-of-way (such as a street or road) but not divided by real property owned by others; and

(C) the homestead if it is temporarily unoccupied due to employment, training for future employment, illness, casualty, or natural disaster, as long as the household intends to return;

(16) income-producing property (any real or personal property that generates income) that:

(A) is essential to a household member's employment or self-employment (such as tools of a trade, farm machinery, stock, and inventory), including:

(i) during temporary periods of unemployment if the household member expects to return to work; and

(ii) for farmers or fishers, the value of the land or equipment for one year after the date the self-employment ceases;

(B) annually produces income consistent with a fair market value comparable in the community (as determined by HHSC through sources such as local realtors, tax assessors, and the Small Business Administration), even if used only on a seasonal basis such as rental property; or

(C) is that portion of the property that is necessary for the maintenance or use of a vehicle exempted as income-producing or as necessary for transporting a physically disabled household member;

(17) real property HHSC determines the household is making a good faith effort to sell;

(18) resources HHSC determines are not accessible to the household;

(19) funds from educational assistance payments (but only during the quarter, semester, or applicable period the payment is intended to cover);

(20) equity value of resources that are not legally available (inaccessible) to the household;

(21) a nonliquid resource if its equity is less than or equal to $1,500;

(22) a One-Time Temporary Assistance for Needy Families (OTTANF) payment for the month of receipt and any remaining OTTANF benefits the month after receipt;

(23) a TANF One-Time Grandparent payment;

(24) reimbursements earmarked and used for replacing or repairing an exempt resource;

(25) for a household containing a sponsored alien, the resources of a sponsor and the sponsor's spouse to the extent allowed by federal law;

(26) resources of residents in shelters for battered women and children if:

(A) resources are jointly owned by the household in the shelter and members of the former household; and

(B) shelter resident's access to the value of the resource depends on the agreement of a joint owner who still lives in the resident's former household;

(27) resources of a recipient of Supplemental Security Income living in the home; and

(28) liquid resources resulting from the earnings of a certified child who is attending school full time, or less than full time and employed less than 30 hours per week.

§366.529.Income Limits.

To be eligible for Children's Medicaid, an applicant or recipient must meet the applicable income requirements established in §366.507 of this subchapter (relating to Eligible Groups).

§366.531.Determining Whose Income Counts.

(a) To determine income eligibility for Children's Medicaid, the Texas Health and Human Services Commission (HHSC) counts the income of:

(1) the members of the budget group;

(2) each parent of a child in the certified group who lives in the household;

(3) each sibling, if included in the budget group, of a dependent child in the certified group who lives in the household;

(4) stepparents living with the certified group;

(5) in the case of an unmarried minor parent recipient, parents of the minor who live with the minor; and

(6) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

(b) A child's needs, income, and resources may be excluded when determining eligibility of the child's siblings if the caretaker chooses not to apply for Medicaid for the excluded child.

(c) A newborn whose birth mother was a Texas Medicaid recipient when the child was born is not required to meet income eligibility requirements.

(d) HHSC does not count the applied income of stepparents or grandparents with whom the child lives if the income resulted in the denial of eligibility for Temporary Assistance for Needy Families.

§366.533.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income for each employed person whose needs are included in the budget group or certified group or who is a disqualified member;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the person incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments made by a member of the budget group; and

(6) up to $75 per month in regular child support payments per household, except HHSC counts all child support payments a household received if HHSC determines the household has violated an agreement to assign child support to the State.

§366.535.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) funds from educational assistance payments (but only during the quarter, semester, or applicable period that the payment is intended to cover);

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid; and

(32) crime victim's compensation payments.

§366.537.Third-party Resources.

Medicaid is considered the payor of last resort for a person's medical expenses. As a condition of eligibility, in accordance with 42 CFR §§433.138 - 433.148, an applicant or recipient must:

(1) assign to the Texas Health and Human Services Commission (HHSC) the applicant's or recipient's right to recover any third-party resources available for payment of medical expenses covered under the Texas State Plan for Medical Assistance; and

(2) report to HHSC any third-party resource within 60 days after learning about the third-party resource.

§366.539.Medicaid Eligibility Effective Date.

The Texas Health and Human Services Commission (HHSC) determines the Medicaid eligibility effective 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, except that a newborn's coverage begins no earlier than the child's date of birth.

(3) A recipient is continuously eligible for Medicaid through the certification period or through the month of the recipient's 19th birthday, whichever is earlier. A recipient who is a newborn has continuous eligibility through the month of his or her first birthday. If the household is eligible in the application or process month, the child is eligible for continuous coverage beginning the first month the household meets the eligibility criteria.

§366.541.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.543.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.545.Eligibility Renewal.

(a) A recipient who returns a completed renewal application and all necessary documentation will continue to receive Medicaid coverage, if eligible.

(b) The Texas Health and Human Services Commission does not review or change the Medicaid eligibility of a child under 19 years of age whose coverage began on or after January 1, 2002, regardless of changes in resources or income, until the earlier of:

(1) the child's recertification date; or

(2) the child's 19th birthday.

§366.547.Comprehensive Health Care Requirements.

(a) A parent or guardian of an applicant must:

(1) attend a health care orientation;

(2) accompany the child on a visit to a health care provider; or

(3) meet with a Texas Health and Human Services Commission (HHSC) representative to discuss the child's eligibility and, as appropriate, receive counseling on the child's need for comprehensive health care.

(b) The parent or guardian of a recipient who is eligible for Texas Health Steps must:

(1) comply with the Texas Health Steps regimen of health care requirements, as required by the Texas Department of State Health Services in 25 TAC Chapter 33 (relating to Early and Periodic Screening, Diagnosis, and Treatment); or

(2) meet with an HHSC representative to discuss the child's eligibility and, as appropriate, receive counseling on the child's need for comprehensive health care.

§366.549.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.551.Requirement to Report Changes.

(a) A recipient must report:

(1) a change of address;

(2) if a certified child leaves the home, is institutionalized, or dies; and

(3) the addition of a child to the household, if the household wants Medicaid for the child.

(b) If a recipient reports a change described in subsection (a) of this section, the Texas Health and Human Services Commission takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient. A change not described in subsection (a) of this section is documented and handled at the next review.

§366.553.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905108

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER F. MEDICAID FOR TRANSITIONING FOSTER CARE YOUTH

1 TAC §§366.601, 366.603, 366.605, 366.607, 366.609, 366.611, 366.613, 366.615, 366.617, 366.619, 366.621, 366.623, 366.625, 366.627, 366.629, 366.631, 366.633, 366.635, 366.637, 366.639, 366.641, 366.643, 366.645, 366.647

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.601.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria for the Medicaid for Transitioning Foster Care Youth Program, which provides medical assistance to eligible youths who leave foster care and transition into the community.

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.603.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 the Medicaid for Transitioning Foster Care Youth Program (MTFCY) 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 whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(3) CFR--Code of Federal Regulations.

(4) Child--Any household member under 19 years of age.

(5) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(6) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(7) Eligible group--A category of people who are eligible for MTFCY. In other Medicaid programs, an eligible group may be called a coverage group.

(8) Fair market value--The amount of money an item would bring if sold in the current local market.

(9) Federal Poverty Income Limit (FPIL)--The household income guidelines issued annually and published in the Federal Register by the U.S. Department of Health and Human Services. Percentages of these guidelines are used to determine income eligibility for MTFCY and certain other public assistance programs. In other programs, the FPIL may be referred to as the Federal Poverty Level or the Federal Poverty Guidelines.

(10) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(11) Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an individual who is incompetent or incapacitated if the person is determined by the Texas Health and Human Services Commission (HHSC) to be acting responsibly on behalf of the applicant.

(12) Recipient--A person receiving MTFCY services, including a person who is renewing eligibility for MTFCY.

(13) Resources--Cash (or its equivalent) and property that is convertible to cash (or its equivalent). Resources include:

(A) cash from income that is not obligated in the month of receipt; and

(B) lump sum payments that may be received intermittently and no more often than once annually.

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

(15) Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

(16) Unearned income--Payments received without performing work-related activities, including benefits from other programs.

(17) U.S.C.--United States Code.

§366.605.Program Administration.

The Texas Health and Human Services Commission administers the Medicaid for Transitioning Foster Care Youth Program in cooperation with the Texas Department of Family and Protective Services.

§366.607.Legal Basis.

The Medicaid for Transitioning Foster Care Youth Program finds its legal authority in the following statutes:

(1) 42 U.S.C. §1396d(w);

(2) 42 U.S.C. §1396a(10)(A)(ii)(XVII);

(3) the Texas Human Resources Code, §32.0247; and

(4) the Foster Care Independence Act of 1999 (42 U.S.C. §677).

§366.609.General Eligibility Requirements.

To be eligible for the Medicaid for Transitioning Foster Care Youth Program, a person must:

(1) meet the criteria for an eligible group as described in §366.611 of this subchapter (relating to Eligible Group);

(2) comply with the Texas Health and Human Services Commission's initial and renewal application requirements in this subchapter; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.611.Eligible Group.

To be eligible for the Medicaid for Transitioning Foster Care Youth Program, an applicant must:

(1) be in foster care when he or she leaves conservatorship of a State;

(2) be 18 - 20 years of age (coverage continues through the month of his or her 21st birthday); and

(3) not be covered by a health benefits plan offering adequate benefits, as the Texas Health and Human Services Commission defines adequate benefits.

§366.613.Application Requirements.

(a) Except for an applicant described in subsection (b) or (c) of this section, the Texas Department of Family and Protective Services certifies that an applicant's income and resources meet eligibility requirements and notifies the Texas Health and Human Services Commission (HHSC) to authorize Medicaid coverage.

(b) An applicant who, on his or her 18th birthday, was in foster care under the responsibility of a State other than Texas applies for Medicaid for Transitioning Foster Care Youth (MTFCY) as described in subsections (d) - (f) of this section.

(c) An applicant who previously received MTFCY benefits, and desires to reapply for MTFCY, reapplies for MTFCY as described in subsections (d) - (f) of this section.

(d) For an applicant described in subsection (b) or (c) of this section, the applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) must:

(1) use the application for assistance prescribed by HHSC and complete it according to HHSC instructions:

(A) in writing, using a paper application obtained via telephone or other means;

(B) over the telephone, through the State's toll-free telephone number; or

(C) in person, by visiting an HHSC benefits office;

(2) provide all requested information according to HHSC instructions; and

(3) sign the application for assistance under penalty of perjury.

(e) If someone helps an applicant, authorized representative, or person acting responsibly for the applicant complete the application for assistance, the name of the person completing the form must appear as requested on the application.

(f) If HHSC sends an applicant, authorized representative, or person acting responsibly a request for missing information or verification documents, or both, the applicant, authorized representative, or person acting responsibly must provide the requested information to HHSC by the due date given in the request, or eligibility may be denied.

§366.615.Application Processing.

(a) The Texas Health and Human Services Commission (HHSC) processes Medicaid for Transitioning Foster Care Youth applications by mail or telephone.

(b) HHSC reopens a denied initial application, so long as the applicant complies with the missed requirements within 60 days after the date the application was submitted. HHSC otherwise requires the applicant to file a new application.

(c) HHSC reopens a denied renewal application, so long as the recipient complies with the missed requirements within 30 days after the last benefit month. HHSC otherwise requires the recipient to file a new application.

(d) HHSC reopens an application for three months prior coverage if:

(1) within two years after the application was filed, the applicant requests that the application be reopened; and

(2) a Medicaid eligibility determination was not previously made for the prior three-month period.

§366.617.Citizenship.

To be eligible for Medicaid for Transitioning Foster Care Youth, an applicant must be:

(1) a citizen or national of the United States (U.S.);

(2) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(3) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(A) the alien is an honorably discharged veteran or active duty military personnel;

(B) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(C) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(D) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, Item A-343, How to Determine Eligibility for Battered Aliens; or

(E) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(4) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b).

§366.619.Social Security Number.

An applicant must provide or apply for a social security number (SSN) (including children referred to the Children's Health Insurance Program (CHIP)), except that the Texas Health and Human Services Commission (HHSC):

(1) does not require an SSN for a newborn until the earlier of six months after birth or when HHSC reviews Medicaid eligibility;

(2) refers a Medicaid-eligible mother directly to the Social Security Administration to obtain an SSN for her newborn, if her newborn was certified for Medicaid as a result of a notice from an authorized medical provider (for example, a hospital or clinic); and

(3) requests, but does not require, budget group members who are not eligible for Medicaid to provide or apply for an SSN.

§366.621.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.623.Resources.

(a) Resource limit. An applicant must have countable resources at or below $10,000.

(b) Value of a nonliquid resource. The Texas Health and Human Services Commission (HHSC) considers the value of a nonliquid resource, except for a vehicle, to be its equity value. HHSC determines the equity value by subtracting any money owed on the resource and any reasonable cost associated with selling or transferring the resource from the fair market value.

(c) Consequence of transferring resources. An applicant, if otherwise eligible, is not denied Medicaid for Transitioning Foster Care Youth because the applicant transferred resources to qualify for assistance.

§366.625.Vehicles.

(a) The Texas Health and Human Services Commission (HHSC) considers the value of a vehicle to be its fair market value.

(b) HHSC exempts the value of the highest valued countable vehicle from countable resources.

(c) HHSC exempts the value of a vehicle from countable resources, if:

(1) it is income producing;

(2) it is used for a disabled household member;

(3) its equity value is equal to or less than $1,500;

(4) it is used for long distance travel for employment;

(5) it is used as the household's home; or

(6) it is necessary to carry fuel or water anticipated to be the primary source of fuel or water for the household during the certification period.

(d) HHSC exempts up to $4,650 of the value of any vehicle not exempt under subsection (b) of this section. HHSC exempts any other licensed vehicle a minor (under 18 years of age) drives to work, training, school, or to seek employment if the fair market value (FMV) is less than $4,650. HHSC counts the FMV in excess of $4,650 as a resource.

§366.627.Exempt Resources.

The Texas Health and Human Services Commission (HHSC) exempts the following from countable resources:

(1) funds in a retirement account (even if accessible, so long as the funds remain in the account);

(2) balances in the Texas Guaranteed Tuition Plan (formerly called the Texas Tomorrow Fund) even if accessible, so long as the funds remain in the account;

(3) crime victim's compensation payments;

(4) earned income tax credit (EIC) payments to applicants the month of receipt and the following month, and to recipients the month of receipt and the following 11 months, unless there is a break in certification of more than 30 days, in which case any remaining portion of the EIC payment is counted as a resource;

(5) payments or allowances made under any federal law for the purpose of energy assistance;

(6) federal disaster payments and comparable disaster assistance provided by states, local governments, and disaster assistance organizations if the household is subject to legal penalties if the funds are not used as intended;

(7) transitional living allowances;

(8) any resource federal law excludes;

(9) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(10) the cash value of life insurance policies;

(11) an amount up to $7,500 per person of prepaid burial insurance (or of a prepaid funeral plan);

(12) loans, if the circumstances satisfy HHSC that there exists an understanding the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid;

(13) personal possessions HHSC determines are essential for daily living, such as clothing, jewelry, furniture, livestock, and farm equipment;

(14) burial plots;

(15) the homestead and surrounding real property, including:

(A) any structure, including a houseboat or a motor home, the household uses as its primary residence;

(B) surrounding real property divided by a public right-of-way (such as a street or road) but not divided by real property owned by others; and

(C) the homestead if it is temporarily unoccupied due to employment, training for future employment, illness, casualty, or natural disaster, as long as the household intends to return;

(16) income-producing property (any real or personal property that generates income) that:

(A) is essential to a household member's employment or self-employment (such as tools of a trade, farm machinery, stock, and inventory), including:

(i) during temporary periods of unemployment if the household member expects to return to work; and

(ii) for farmers or fishers, the value of the land or equipment for one year after the date the self-employment ceases;

(B) annually produces income consistent with a fair market value comparable in the community (as determined by HHSC through sources such as local realtors, tax assessors, and the Small Business Administration), even if used only on a seasonal basis such as rental property; or

(C) is that portion of the property that is necessary for the maintenance or use of a vehicle exempted as income-producing or as necessary for transporting a physically disabled household member;

(17) real property HHSC determines the household is making a good faith effort to sell;

(18) resources HHSC determines are not accessible to the household;

(19) any financial benefit used for the purpose of educational or vocational training, such as scholarships, student loans, or grants;

(20) equity value of resources that are not legally available (inaccessible) to the household;

(21) a nonliquid resource if its equity is less than or equal to $1,500;

(22) a One-Time Temporary Assistance for Needy Families (OTTANF) payment for the month of receipt and any remaining OTTANF benefits the month after receipt;

(23) a TANF One-Time Grandparent payment;

(24) reimbursements earmarked and used for replacing or repairing an exempt resource;

(25) for a household containing a sponsored alien, the resources of a sponsor and the sponsor's spouse to the extent allowed by federal law;

(26) resources of residents in shelters for battered women and children if:

(A) resources are jointly owned by the household in the shelter and members of the former household; and

(B) shelter resident's access to the value of the resource depends on the agreement of a joint owner who still lives in the resident's former household;

(27) resources of a recipient of Supplemental Security Income living in the home;

(28) liquid resources resulting from the earnings of a certified child who is attending school full time, or less than full time and employed less than 30 hours per week;

(29) any grants or subsidies obtained as a result of the Foster Care Independence Act of 1999 (42 United States Code §677); and

(30) any financial benefit used for the purpose of housing.

§366.629.Income Limits.

To be eligible for the Medicaid for Transitioning Foster Care Youth Program, an applicant or recipient must have countable income that is equal to or less than 400% of the Federal Poverty Income Limit.

§366.631.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the applicant incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments; and

(6) up to $75 per month in regular child support disregard payments received.

§366.633.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) any financial benefit used for the purpose of educational or vocational training, such as scholarships, student loans, or grants, is excluded from income;

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid;

(32) any financial benefit used for the purpose of housing; and

(33) crime victim's compensation payments.

§366.635.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 or receiving other Medicaid coverage.

(b) A person eligible for Medicaid for Transitioning Foster Care Youth is also eligible for retroactive coverage.

§366.637.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.639.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.641.Eligibility Renewal.

At 12 months, the Texas Health and Human Services Commission determines if the recipient is still eligible to receive ongoing Medicaid coverage.

§366.643.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.645.Requirement to Report Changes.

(a) A recipient must report:

(1) a change of address; and

(2) the start of adequate health coverage.

(b) If a recipient reports a change described in subsection (a) of this section, the Texas Health and Human Services Commission takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient. A change not described in subsection (a) of this section is documented and handled at the next review.

§366.647.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905109

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER G. TANF-LEVEL MEDICAL ASSISTANCE

1 TAC §§366.701, 366.703, 366.705, 366.707, 366.709, 366.711, 366.713, 366.715, 366.717, 366.719, 366.721, 366.723, 366.725, 366.727, 366.729, 366.731, 366.733, 366.735, 366.737, 366.739, 366.741, 366.743, 366.745, 366.747, 366.749, 366.751, 366.753, 366.755, 366.757, 366.759, 366.761

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.701.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria and participation requirements for TANF-level medical assistance, which provides Medicaid coverage to households eligible for Temporary Assistance for Needy Families (TANF).

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.703.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 TANF-level medical assistance 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 whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(3) Budget group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for Medicaid. The budget group may include both members who are eligible for Medicaid and those who are not.

(4) Budgetary needs--The full basic needs amount, as defined by the Texas Health and Human Services Commission, that is necessary for a family to obtain food, clothing, housing, utilities, and incidentals such as telephone, laundry, and recreation.

(5) Caretaker--A person who cares for a dependent child, who meets relationship requirements in §366.719(c) of this subchapter (relating to Relationship and Domicile), whom the Texas Health and Human Services Commission includes in the certified group, and who ordinarily receives and manages benefits for the certified group.

(6) Certified group--Members of a budget group who are eligible for and receiving Medicaid.

(7) CFR--Code of Federal Regulations.

(8) Child--Any household member from birth through the month of the member's 19th birthday unless the child is married or legally emancipated.

(9) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(10) Disqualified member--A person who normally would be considered a participating member of a household but whose needs are not considered because the person failed to meet or comply with a program requirement.

(11) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(12) Eligible group--A category of people who are eligible for TANF-level medical assistance. In other Medicaid programs, an eligible group may be called a coverage group.

(13) Fair market value--The amount of money an item would bring if sold in the current local market.

(14) Federal Poverty Income Limit (FPIL)--The household income guidelines issued annually and published in the Federal Register by the U.S. Department of Health and Human Services. Percentages of these guidelines are used to determine income eligibility for certain public assistance programs. In other programs, the FPIL may be referred to as the Federal Poverty Level or the Federal Poverty Guidelines.

(15) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(16) Person acting responsibly--A person, other than a provider, who may apply for Medicaid on behalf of an individual who is incompetent or incapacitated if the person is determined by the Texas Health and Human Services Commission (HHSC) to be acting responsibly on behalf of the applicant.

(17) Recipient--A person receiving TANF-level medical assistance, including a person who is renewing eligibility for TANF-level medical assistance.

(18) Resources--Cash (or its equivalent) and property that is convertible to cash (or its equivalent). Resources include:

(A) cash from income that is not obligated in the month of receipt; and

(B) lump sum payments that may be received intermittently and no more often than once annually.

(19) Retroactive coverage--Payment for Medicaid-reimbursable medical services received up to three months before the month of application.

(20) Review--Evaluative interview that must take place before a recipient receives his or her seventh month of TANF-level medical assistance.

(21) TANF--Temporary Assistance for Needy Families. A program that provides temporary benefits (cash assistance) and work opportunities to families with needy dependent children, authorized under Title IV of the Social Security Act.

(22) Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

(23) Unearned income--Income that is not earned income, including dividends and withdrawals from excluded resources.

(24) U.S.C.--United States Code.

§366.705.General Eligibility Requirements.

To be eligible for TANF-level medical assistance, a person must:

(1) meet the criteria for an eligible group as described in §366.707 of this subchapter (relating to Eligible Group);

(2) comply with the Texas Health and Human Services Commission's initial and renewal application requirements in this subchapter; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.707.Eligible Group.

(a) Households eligible for Temporary Assistance for Needy Families benefits also qualify for medical assistance under Medicaid, as provided by §1931 of the Social Security Act (42 U.S.C. §1396u-1).

(b) To be eligible for TANF-level medical assistance, a person must be a caretaker or second parent of a dependent child under 19 years of age who:

(1) meets TANF eligibility criteria; and

(2) receives Medicaid.

(c) The caretaker or second parent is ineligible if the dependent child receives benefits under the Children's Health Insurance Program.

§366.709.Application Requirements.

(a) To receive TANF-level medical assistance, an applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) must:

(1) use the application prescribed by the Texas Health and Human Services Commission (HHSC) and complete it according to HHSC instructions:

(A) in writing, using a paper application obtained via telephone, Internet request, or other means;

(B) online, using the application process available over the Internet;

(C) over the telephone, through the State's toll-free telephone number; or

(D) in person, by visiting an HHSC benefits office;

(2) provide all requested information according to HHSC instructions; and

(3) sign the application for assistance under penalty of perjury.

(b) If someone helps an applicant, authorized representative, or person acting responsibly for the applicant complete the application for assistance, the name of the person completing the form must appear as requested on the application.

(c) If HHSC sends an applicant, authorized representative, or person acting responsibly a request for missing information or verification documents, or both, the applicant, authorized representative, or person acting responsibly must provide the requested information to HHSC by the due date given in the request, or eligibility may be denied.

§366.711.Application Processing.

(a) The Texas Health and Human Services Commission (HHSC) allows any office of a state health and human services agency to accept an initial application.

(b) HHSC contracts with third parties to accept applications from hospital districts (including state-owned teaching hospitals), federally qualified health centers, and county health departments.

(c) HHSC requires a personal interview with an initial applicant, unless the only applicant is a child.

(d) HHSC reopens a denied initial application, so long as the household complies with the missed requirements within 60 days after the date the application was submitted. HHSC otherwise requires the household to file a new application.

(e) HHSC reopens a denied review application, so long as the household complies with the missed requirements within 30 days after the last benefit month. HHSC otherwise requires the household to file a new application.

(f) HHSC may reopen an application for three months prior coverage if:

(1) within two years after the application was filed, the applicant requests that the application be reopened; and

(2) a Medicaid eligibility determination was not previously made for the three-month prior period.

§366.713.Citizenship.

To be eligible for TANF-level medical assistance, an applicant must be:

(1) a citizen or national of the United States (U.S.);

(2) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(3) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(A) the alien is an honorably discharged veteran or active duty military personnel;

(B) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(C) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(D) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, ItemA-343, How to Determine Eligibility for Battered Aliens; or

(E) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(4) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b).

§366.715.Social Security Number.

An applicant must provide or apply for a social security number (SSN) before certification. If the household cannot provide proof of an application for an SSN, a newborn may receive benefits with the household for the later of:

(1) six months after birth; or

(2) the next recertification or complete review.

§366.717.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.719.Relationship and Domicile.

(a) To be eligible for TANF-level medical assistance:

(1) a caretaker must live in a home with and care for a child for which the caretaker has the required degree of relationship as described in subsection (c) of this section; and

(2) a child must live in a home with a relative who is within the required degree of relationship as described in subsection (c) of this section.

(b) A home is a family setting maintained or being established, as evidenced by continuation of responsibility for day-to-day care of a child.

(c) A person meets the relationship requirement, if the person is by law, marriage, or adoption a child's:

(1) father or mother;

(2) grandparent, to the degree of a "great, great, great" grandparent;

(3) brother or sister;

(4) uncle or aunt, to the degree of a "great, great" uncle or aunt;

(5) first cousin;

(6) nephew or niece, to the to the degree of a "great, great" nephew or niece;

(7) stepfather or stepmother;

(8) stepbrother or stepsister; or

(9) first cousin once removed.

§366.721.Medical Support.

As a condition of eligibility, a recipient must comply with medical support requirements, as provided by §1912(a)(1) of the Social Security Act, (42 U.S.C. §1396k(a)(1)).

§366.723.Resources.

(a) Resource limits. A household meets the resources eligibility requirement if the household's countable resources are at or below:

(1) $3,000 for a household with a member who is aged or disabled and meets relationship requirements, even if the aged or disabled member is not part of the Medicaid budget group; or

(2) $2,000 for all other households.

(b) Value of a nonliquid resource. The Texas Health and Human Services Commission (HHSC) considers the value of a nonliquid resource, except for a vehicle, to be its equity value. HHSC determines the equity value by subtracting any money owed on the resource and any reasonable cost associated with selling or transferring the resource from the fair market value.

(c) Consequence of transferring resources. An applicant, if otherwise eligible, is not denied TANF-level medical assistance because the applicant transferred resources to qualify for assistance.

§366.725.Determining Whose Resources Count.

To determine resource eligibility for TANF-level medical assistance, the Texas Health and Human Services Commission (HHSC) counts the resources of:

(1) the members of the certified group;

(2) disqualified persons;

(3) a stepparent:

(A) in full, if the stepparent is in the certified group; and

(B) only the legal parent's half of a jointly owned resource, if the stepparent is not in the certified group; and

(4) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

§366.727.Vehicles.

(a) The Texas Health and Human Services Commission (HHSC) considers the value of a vehicle to be its fair market value (FMV).

(b) HHSC exempts the value of a vehicle from countable resources, if:

(1) it is income producing; or

(2) it is used for a disabled household member.

(c) For a household with one certified parent, HHSC exempts up to $4,650 of the FMV of each vehicle not exempt under subsection (b) of this section, and counts the FMV in excess of $4,650 as a resource.

(d) For a household with two certified parents, HHSC:

(1) exempts up to $15,000 of the FMV of one vehicle owned by a member of the household not exempt under subsection (b) of this section, and counts the FMV in excess of $15,000 as a resource; and

(2) exempts up to $4,650 of the FMV of all other vehicles not exempt under subsection (b) of this section, and counts the FMV in excess of $4,650 as a resource.

§366.729.Exempt Resources.

The Texas Health and Human Services Commission (HHSC) exempts the following from countable resources:

(1) funds in a retirement account (even if accessible, so long as the funds remain in the account);

(2) balances in the Texas Guaranteed Tuition Plan (formerly called the Texas Tomorrow Fund) even if accessible, so long as the funds remain in the account;

(3) crime victim's compensation payments;

(4) earned income tax credit (EIC) payments to applicants the month of receipt and the following month, and to recipients the month of receipt and the following 11 months, unless there is a break in certification of more than 30 days, in which case any remaining portion of the EIC payment is counted as a resource;

(5) payments or allowances made under any federal law for the purpose of energy assistance;

(6) federal disaster payments and comparable disaster assistance provided by states, local governments, and disaster assistance organizations if the household is subject to legal penalties if the funds are not used as intended;

(7) transitional living allowances;

(8) any resource federal law excludes;

(9) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(10) the cash value of life insurance policies;

(11) an amount up to $7,500 per person of prepaid burial insurance (or of a prepaid funeral plan);

(12) loans, if the circumstances satisfy HHSC that there exists an understanding the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid;

(13) personal possessions HHSC determines are essential for daily living, such as clothing, jewelry, furniture, livestock, and farm equipment;

(14) burial plots;

(15) the homestead and surrounding real property, including:

(A) any structure, including a houseboat or a motor home, the household uses as its primary residence;

(B) surrounding real property divided by a public right-of-way (such as a street or road) but not divided by real property owned by others; and

(C) the homestead if it is temporarily unoccupied due to employment, training for future employment, illness, casualty, or natural disaster, as long as the household intends to return;

(16) business property (any real or personal property that generates income) that:

(A) is essential to a household member's employment or self-employment (such as tools of a trade, farm machinery, stock, and inventory), including:

(i) during temporary periods of unemployment if the household member expects to return to work; and

(ii) for farmers or fishers, the value of the land or equipment for one year after the date the self-employment ceases;

(B) annually produces income consistent with a fair market value comparable in the community (as determined by HHSC through sources such as local realtors, tax assessors, and the Small Business Administration), even if used only on a seasonal basis such as rental property; or

(C) is that portion of the property that is necessary for the maintenance or use of a vehicle exempted as income-producing or as necessary for transporting a physically disabled household member;

(17) real property if the household is making a good faith effort to sell it;

(18) resources HHSC determines are not accessible to the household;

(19) funds from educational assistance payments (but only during the quarter, semester, or applicable period the payment is intended to cover);

(20) equity value of resources that are not legally available (inaccessible) to the household;

(21) a nonliquid resource if its equity is less than or equal to $1,500;

(22) a One-Time Temporary Assistance for Needy Families (OTTANF) payment for the month of receipt and any remaining OTTANF benefits the month after receipt;

(23) a TANF One-Time Grandparent payment;

(24) reimbursements earmarked and used for replacing or repairing an exempt resource;

(25) for a household containing a sponsored alien, the resources of a sponsor and the sponsor's spouse to the extent allowed by federal law;

(26) resources of residents in shelters for battered women and children if:

(A) resources are jointly owned by the household in the shelter and members of the former household; and

(B) shelter resident's access to the value of the resource depends on the agreement of a joint owner who still lives in the resident's former household;

(27) resources of a recipient of Supplemental Security Income living in the home; and

(28) liquid resources resulting from the earnings of a certified child who is attending school full time, or less than full time and employed less than 30 hours per week.

§366.731.Income Eligibility.

(a) The Texas Health and Human Services Commission (HHSC) determines income eligibility for TANF-level medical assistance:

(1) for a household that has not received TANF in the last four months, by applying a budgetary needs test; and

(2) for all applicants and certified households, by applying the recognizable needs test in accordance with the table in subsection (b) of this section.

(b) A household meets the income eligibility requirement for recognizable needs if, based on the persons in the certified group and whether the household includes a second parent, the household's total income under §366.733 of this subchapter (relating to Determining Whose Income Counts), minus all applicable deductions in §366.735 of this subchapter (relating to Allowable Income Deductions), is equal to or less than the applicable recognizable needs amount in the following table:

Figure: 1 TAC §366.731(b)

§366.733.Determining Whose Income Counts.

To determine income eligibility for TANF-level medical assistance, the Texas Health and Human Services Commission counts the income of:

(1) the members of the budget group; and

(2) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

§366.735.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income for each employed person whose needs are included in the budget group or certified group or who is a disqualified member;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the person incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments made by a member of the budget group;

(6) up to $75 per month in regular child support payments per household, except HHSC counts all child support payments a household received if HHSC determines the household has violated an agreement to assign child support to the State;

(7) a 90% earned income deduction; and

(8) for applicants, a one-third earned income disregard.

§366.737.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) funds from educational assistance payments (but only during the quarter, semester, or applicable period that the payment is intended to cover);

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid; and

(32) crime victim's compensation payments.

§366.739.Third-party Resources.

Medicaid is considered the payor of last resort for a person's medical expenses. As a condition of eligibility, in accordance with 42 CFR §§433.138 - 433.148, an applicant or recipient must:

(1) assign to the Texas Health and Human Services Commission (HHSC) the applicant's or recipient's right to recover any third-party resources available for payment of medical expenses covered under the Texas State Plan for Medical Assistance; and

(2) report to HHSC any third-party resource within 60 days after learning about the third-party resource.

§366.741.Medicaid Eligibility Effective Date.

The Texas Health and Human Services Commission determines the Medicaid eligibility effective date as the earliest day of the application month on which the applicant meets all eligibility criteria.

§366.743.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.745.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.747.Retroactive Coverage.

To qualify for retroactive coverage, applicants and recipients must meet the requirements of §1902(a)(34) of the Social Security Act (42 U.S.C. §1396a(a)(34)).

§366.749.Four Months Post-Medicaid Eligibility.

A household is eligible for four months post-Medicaid coverage, as provided by §1931 of the Social Security Act (42 U.S.C. §1396u-1), if the household received TANF or Medicaid only under §1931 of the Social Security Act and then was denied TANF or Medicaid because of receipt of child support.

§366.751.Twelve-Month Transitional Medicaid.

(a) A recipient, certified as required by §1931 of the Social Security Act (42 U.S.C. §1396u-1) and §32.0255 of the Texas Human Resources Code, who is denied because of new or increased earnings or loss of earned income deductions, may be eligible for 12-month transitional Medicaid, as provided by §1925 of the Social Security Act (42 U.S.C. §1396r-6).

(b) To remain eligible for 12-month transitional Medicaid, a recipient must report changes in the fourth, seventh, and tenth months.

(c) A recipient who reports changes is denied only for one or more of the following reasons:

(1) no eligible child is in the home;

(2) on the seventh- or tenth-month report, the caretaker relative had no earnings in one of the previous three months; or

(3) the average monthly income, minus child-care costs, exceeds 185% of the Federal Poverty Income Limit on the seventh- or tenth-month report.

§366.753.Work Requirement.

A recipient receiving TANF-level medical assistance only (no cash assistance) is not subject to a work requirement.

§366.755.Eligibility Review.

(a) In some cases, the Texas Health and Human Services Commission (HHSC) elects to review eligibility every 12 months, but in most cases, HHSC reviews eligibility every six months.

(b) Before the end of the eligibility period, HHSC mails a review form to the household. HHSC schedules an appointment for an eligibility interview when the recipient returns the application.

(c) A recipient who returns a completed review application, completes an eligibility interview, provides all necessary documentation and meets eligibility criteria continues to receive ongoing Medicaid coverage.

§366.757.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the recipient.

§366.759.Requirement to Report Changes.

A recipient must report the following changes within 10 days after learning of the change:

(1) residence;

(2) a source of income;

(3) household composition;

(4) ownership of a licensed vehicle;

(5) wage rate or status for employed household members;

(6) the amount of non-exempt unearned income of any household member;

(7) private medical insurance coverage;

(8) circumstances other than employment that affect a recipient's eligibility;

(9) address, job, or other information related to an absent parent; and

(10) available cash, stocks, bonds, or money in a bank or savings account if the total is over $2,000, or over $3,000 if the household has an aged or disabled member.

§366.761.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905110

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER H. MEDICALLY NEEDY PROGRAM

1 TAC §§366.801, 366.803, 366.805, 366.807, 366.809, 366.811, 366.813, 366.815, 366.817, 366.819, 366.821, 366.823, 366.825, 366.827, 366.829, 366.831, 366.833, 366.835, 366.837, 366.839, 366.841, 366.843, 366.845, 366.847, 366.849, 366.851, 366.853, 366.855, 366.857

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.801.Purpose and Scope.

(a) This subchapter establishes the eligibility criteria and participation requirements for the Medically Needy Program, which provides Medicaid benefits to eligible persons whose family income is too high to qualify for other Medicaid programs in accordance with 42 U.S.C. §1396a(a)(10)(C).

(b) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

(c) The Medically Needy Program is subject to the availability of appropriated funds.

§366.803.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 the Medically Needy Program 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) Applied income--A portion of a legal parent's income applied or counted to meet the needs of a minor applicant.

(3) Authorized representative--A person whom a budget group authorizes to apply for Medicaid benefits on behalf of a certified group but who is not included in the certified group.

(4) Budget group--Members of a household whose needs, income, resources, and medical expenses are considered in determining eligibility for Medicaid. The budget group may include both members who are eligible for Medicaid and those who are not.

(5) Caretaker--A person who supervises and cares for a dependent child. A caretaker must be related to the child.

(6) Certified group--Members of a budget group who are eligible for and receiving Medicaid.

(7) CFR--Code of Federal Regulations.

(8) Countable income--The receipt of cash or its equivalent, either earned or unearned, that a person may directly or indirectly use to meet basic needs (such as food, clothing, and shelter), including TANF cash payments.

(9) Disqualified member--A person who normally would be considered a participating member of a household but whose needs are not considered because the person failed to meet or comply with a program requirement.

(10) Earned income--Compensation received from employment or job training, including military and flight pay, allowances for housing and food, and receipts from self-employment (but not receipts from ownership of property involving less than 20 hours of work per week, which are unearned income).

(11) Eligible group--A category of people who are eligible for the Medically Needy Program. In other Medicaid programs, an eligible group may be called a coverage group.

(12) Fair market value--The amount of money an item would bring if sold in the current local market.

(13) Good cause--An acceptable reason that exempts an applicant or recipient from a Medicaid requirement.

(14) Medicaid--A state and federal cooperative program, authorized under Title XIX of the Social Security Act and the Texas Human Resources Code, that pays for certain medical and health care costs for people who qualify. Also known as the medical assistance program.

(15) Medically Needy (MN) Program--A program the Texas Health and Human Services Commission (HHSC) administers that provides Medicaid benefits to pregnant women, children, and parents or caretakers of children whose income is too high to qualify for other Medicaid programs and who have high medical expenses.

(16) Newborn--A child from birth through 12 months of age.

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

(18) Provider--A health care practitioner, institution, or other entity that is enrolled with the state Medicaid claims administrator to provide Medicaid services in Texas and is authorized to submit claims for payment or reimbursement of medical assistance.

(19) Recipient--A person receiving Medically Needy Program services, including a person who is renewing eligibility for the Medically Needy Program.

(20) Resources--Cash (or its equivalent) and property that is convertible to cash (or its equivalent). Resources include:

(A) cash from income that is not obligated in the month of receipt; and

(B) lump sum payments that may be received intermittently and no more often than once annually.

(21) Retroactive coverage--Payment for Medicaid-reimbursable medical services received up to three months before the month of application.

(22) Spend down--The amount of income that an applicant must apply toward incurred medical bills before the applicant can be certified for the Medically Needy Program.

(23) Temporary Assistance for Needy Families (TANF)--A program that provides temporary benefits (cash assistance) and work opportunities to families with needy dependent children, authorized under Title IV of the Social Security Act.

(24) Texas Works Handbook--An HHSC manual containing policies and procedures used to determine eligibility for SNAP food benefits, TANF, and Medicaid programs for children and families. The Texas Works Handbook is found on the Internet at www.hhsc.state.tx.us/Programs/Programs.shtml#handbooks.

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

(26) Unearned income--Income that is not earned income, including dividends and withdrawals from excluded resources.

(27) U.S.C.--United States Code.

§366.805.General Eligibility Requirements.

To be eligible for the Medically Needy Program, a person must:

(1) meet the criteria for an eligible group as described in §366.807 of this subchapter (relating to Eligible Groups);

(2) comply with the Texas Health and Human Services Commission's initial and renewal application requirements in this subchapter; and

(3) meet all other eligibility and participation requirements in this subchapter.

§366.807.Eligible Groups.

(a) To qualify for Medically Needy Program benefits, an applicant must:

(1) be:

(A) a pregnant woman with no child eligible for the Temporary Assistance for Needy Families (TANF) Program;

(B) a child under 19 years of age; or

(C) an adult caretaker, whom HHSC includes in the certified group, and who ordinarily receives and manages the benefits for the certified group, except that:

(i) the caretaker's countable income exceeds TANF limits;

(ii) the caretaker's 60-month time-limited TANF benefits are exhausted;

(iii) the caretaker chooses Medicaid-only benefits; or

(iv) the caretaker is disqualified from TANF for a reason that is not applicable to Medicaid; and

(2) have countable income that meets the applicable income limit in §366.829 of this subchapter (relating to Income Limits).

(b) When determining eligibility for a pregnant applicant or recipient, HHSC includes the needs of her unborn child.

(c) A child's needs, income, and resources may be excluded when determining eligibility of the child's siblings if the caretaker chooses not to apply for Medicaid for the excluded child.

§366.809.Application Requirements.

(a) To receive Medically Needy Program benefits, an applicant, authorized representative, or someone acting responsibly for the applicant (if the applicant is incompetent or incapacitated) must:

(1) use the application prescribed by the Texas Health and Human Services Commission (HHSC) and complete it according to HHSC instructions:

(A) in writing, using a paper application obtained via telephone, Internet request, or other means;

(B) online, using the application process available over the Internet;

(C) over the telephone, through the State's toll-free telephone number; or

(D) in person, by visiting an HHSC benefits office;

(2) provide all requested information according to HHSC instructions; and

(3) sign the application for assistance under penalty of perjury.

(b) If someone helps an applicant, authorized representative, or person acting responsibly for the applicant complete the application for assistance, the name of the person completing the form must appear as requested on the application.

(c) If HHSC sends an applicant, authorized representative, or person acting responsibly a request for missing information or verification documents, or both, the applicant, authorized representative, or person acting responsibly must provide the requested information to HHSC by the due date given in the request, or eligibility may be denied.

§366.811.Application Processing.

(a) The Texas Health and Human Services Commission (HHSC) allows any office of a state health and human services agency to accept an initial application.

(b) HHSC contracts with third parties to accept applications from hospital districts (including state-owned teaching hospitals), federally qualified health centers, and county health departments.

(c) HHSC may conduct a personal interview with an initial applicant if HHSC has received conflicting information related to household membership, income, or assets that affects eligibility and the information cannot be verified through other means.

(d) HHSC reopens a denied initial application, so long as the household complies with the missed requirements within 60 days after the date the application was submitted. HHSC otherwise requires the household to file a new application.

(e) HHSC reopens a denied renewal application, so long as the household complies with the missed requirements within 30 days after the last benefit month. HHSC otherwise requires the household to file a new application.

(f) HHSC may reopen an application for three months prior coverage if:

(1) within two years after the application was filed, the applicant requests that the application be reopened; and

(2) a Medicaid eligibility determination was not previously made for the three-month prior period.

(g) For a pregnant applicant who is potentially eligible but unable to provide proof of eligibility, HHSC:

(1) postpones verifications and provides Medicaid coverage to ensure access to medical care within 30 days after the application date;

(2) continues the coverage of women who provide postponed verifications by the 30th day after the application date; and

(3) denies the coverage of those who fail to meet the 30-day deadline.

(h) There are no conditions limiting the designation of an authorized representative.

§366.813.Citizenship.

In accordance with 42 CFR §435.406, to be eligible for the Medically Needy Program, a person must be:

(1) a citizen or national of the United States (U.S.);

(2) an alien who legally entered the U.S. before August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1641(b) or (c);

(3) an alien who legally entered the U.S. on or after August 22, 1996, and who meets the eligibility criteria in 8 U.S.C. §1612(b) and §1613, except that a legal permanent resident alien is eligible after residing in the U.S. for five years only if the alien meets one of the following eligibility requirements:

(A) the alien is an honorably discharged veteran or active duty military personnel;

(B) the alien is a spouse, unmarried surviving spouse, or minor unmarried child of an honorably discharged veteran or active duty military personnel (if a surviving spouse of a deceased veteran or active duty military person, the surviving spouse must not have remarried);

(C) the alien entered the U.S. before August 22, 1996, and remained continuously present in the U.S. (a single absence from the U.S. of more than 30 days or a combined absence of more than 90 days interrupts the "continuous presence") since at least August 21, 1996, until obtaining qualifying immigrant status (an alien who entered the U.S. without proper documents or overstayed his or her visa, is treated the same as an alien who entered and remained in the U.S. with valid immigration documents);

(D) the alien entered the U.S. with a status described in the Texas Works Handbook, Item A-342, Chart C and meets those eligibility criteria, or meets the criteria in the Texas Works Handbook, Item A-343, How to Determine Eligibility for Battered Aliens; or

(E) the alien meets the 40 qualifying quarters requirements in the Texas Works Handbook, Item A-354, Verifying 40 "Qualifying Quarters," and five years have passed since the alien's legal date of entry; or

(4) an alien child 18 years of age or under who meets the definition of a qualified alien at 8 U.S.C. §1641(b).

§366.815.Social Security Number.

An applicant must provide or apply for a social security number (SSN) (including children referred to the Children's Health Insurance Program (CHIP)), except the Texas Health and Human Services Commission (HHSC):

(1) does not require an SSN for a newborn until the earlier of six months after birth or when HHSC reviews Medicaid eligibility;

(2) refers a Medicaid-eligible mother directly to the Social Security Administration to obtain an SSN for her newborn, if her newborn was certified for Medicaid as a result of a notice from an authorized medical provider (for example, a hospital or clinic); and

(3) requests, but does not require, budget group members who are not eligible for Medicaid to provide or apply for an SSN.

§366.817.Residence.

An applicant or recipient must be a resident of Texas. The Texas Health and Human Services Commission follows 42 CFR §435.403 in determining a person's state residence.

§366.819.Relationship and Domicile.

(a) An applicant or recipient must live in a home with a caretaker who is present in the home and supervises and cares for the applicant or recipient. A home is a family setting maintained or being established, as evidenced by continuation of responsibility for day-to-day care of the applicant or recipient.

(b) A caretaker must be the applicant's or recipient's:

(1) father or mother;

(2) grandparent, to the degree of a "great, great, great" grandparent;

(3) brother or sister;

(4) uncle or aunt, to the degree of a "great, great" uncle or aunt;

(5) first cousin;

(6) nephew or niece, to the to the degree of a "great, great" nephew or niece;

(7) stepfather or stepmother;

(8) stepbrother or stepsister; or

(9) first cousin once removed.

(c) An independent child in a certified group may live alone or with a person who is not a parent or relative. An independent child is a child who does not live with a parent and who:

(1) is able to apply for Medicaid on his or her own behalf; or

(2) is eligible for Medicaid because a responsible person who is not within the degree of relationship required for eligibility in subsection (b) of this section applies on the child's behalf.

§366.821.Child Support and Medical Support.

(a) An applicant must cooperate in obtaining child or medical support from absent parents in accordance with this section.

(b) Pregnant women must provide the names and last known addresses of the legal or biological father, or both, of unborn children.

(c) Households applying only for a child under 19 years of age are not required to cooperate to find absent parents to obtain child or medical support. However, caretakers of eligible children qualify for Medicaid coverage for themselves only if they:

(1) cooperate in obtaining medical support from the certified child's absent parent, if the child is deprived of parental support due to absence, as provided by §1912(a)(1) of the Social Security Act, (42 U.S.C. §1396k(a)(1)); or

(2) have good cause not to cooperate, as described in subsection (d) of this section.

(d) Good cause for noncooperation exists if:

(1) the child was conceived as a result of incest or rape;

(2) adoption proceedings for the child are pending;

(3) the parent of the child, for three months or less, has been working with an agency to decide whether to place the child for adoption;

(4) the child may be physically or emotionally harmed by cooperation;

(5) the parent may be physically harmed, or emotionally harmed to the extent of impairing the parent's ability to care for the child, by cooperation; or

(6) the requirement is waived under 45 CFR §260.52(c) in accordance with the requirements of the Texas Human Resources Code, §31.0322.

§366.823.Resources.

(a) Determining whose resources count. In determining eligibility, the Texas Health and Human Services Commission (HHSC) counts the resources of:

(1) the members of the certified group;

(2) each parent of a child in the certified group who lives in the household and is ineligible or disqualified from receiving benefits;

(3) each sibling of a dependent child in the certified group who lives in the household and is disqualified from receiving benefits; and

(4) in the case of a household containing a sponsored alien, the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

(b) Exemption for pregnant women. HHSC does not count resources in determining eligibility for pregnant women.

(c) Value of a nonliquid resource. HHSC considers the value of a nonliquid resource, except for a vehicle, to be its equity value. HHSC determines the equity value by subtracting any money owed on the resource and any reasonable cost associated with selling or transferring the resource from the fair market value.

(d) Resource limits. A household meets the resources eligibility requirement if the household's countable resources are at or below:

(1) $3,000 for a household with a member who is aged or disabled and meets relationship requirements, even if the aged or disabled member is not part of the Medicaid budget group; or

(2) $2,000 for all other households.

(e) Consequence of transferring resources. An applicant, if otherwise eligible, is not denied Medically Needy Program services because the applicant transferred resources to qualify for Medicaid.

§366.825.Vehicles.

(a) The Texas Health and Human Services Commission (HHSC) considers the value of a vehicle to be its fair market value.

(b) HHSC exempts the value of the highest valued countable vehicle from countable resources.

(c) HHSC exempts the value of a vehicle from countable resources, if:

(1) it is income producing;

(2) it is used for a disabled household member;

(3) its equity value is equal to or less than $1,500;

(4) it is used for long distance travel for employment;

(5) it is used as the household's home; or

(6) it is necessary to carry fuel or water anticipated to be the primary source of fuel or water for the household during the certification period.

(d) HHSC exempts for each adult budget group member up to $4,650 of the value of any vehicle not exempt under subsection (b) of this section. HHSC exempts any other licensed vehicle a minor (under 18 years of age) drives to work, training, school, or to seek employment if the fair market value (FMV) is less than $4,650. HHSC counts the FMV in excess of $4,650 as a resource.

§366.827.Exempt Resources.

The Texas Health and Human Services Commission (HHSC) exempts the following from countable resources:

(1) funds in a retirement account (even if accessible, so long as the funds remain in the account);

(2) balances in the Texas Guaranteed Tuition Plan (formerly called the Texas Tomorrow Fund) even if accessible, so long as the funds remain in the account;

(3) crime victim's compensation payments;

(4) earned income tax credit (EIC) payments to applicants the month of receipt and the following month, and to recipients the month of receipt and the following 11 months, unless there is a break in certification of more than 30 days, in which case any remaining portion of the EIC payment is counted as a resource;

(5) payments or allowances made under any federal law for the purpose of energy assistance;

(6) federal disaster payments and comparable disaster assistance provided by states, local governments, and disaster assistance organizations if the household is subject to legal penalties if the funds are not used as intended;

(7) transitional living allowances;

(8) any resource federal law excludes;

(9) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(10) the cash value of life insurance policies;

(11) an amount up to $7,500 per person of prepaid burial insurance (or of a prepaid funeral plan);

(12) loans, if the circumstances satisfy HHSC that there exists an understanding the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid;

(13) personal possessions HHSC determines are essential for daily living, such as clothing, jewelry, furniture, livestock, and farm equipment;

(14) burial plots;

(15) the homestead and surrounding real property, including:

(A) any structure, including a houseboat or a motor home, the household uses as its primary residence;

(B) surrounding real property divided by a public right-of-way (such as a street or road) but not divided by real property owned by others; and

(C) the homestead if it is temporarily unoccupied due to employment, training for future employment, illness, casualty, or natural disaster, as long as the household intends to return;

(16) income-producing property (any real or personal property that generates income) that:

(A) is essential to a household member's employment or self-employment (such as tools of a trade, farm machinery, stock, and inventory), including:

(i) during temporary periods of unemployment if the household member expects to return to work; and

(ii) for farmers or fishers, the value of the land or equipment for one year after the date the self-employment ceases;

(B) annually produces income consistent with a fair market value comparable in the community (as determined by HHSC through sources such as local realtors, tax assessors, and the Small Business Administration), even if used only on a seasonal basis such as rental property; or

(C) is that portion of the property that is necessary for the maintenance or use of a vehicle exempted as income-producing or as necessary for transporting a physically disabled household member;

(17) real property HHSC determines the household is making a good faith effort to sell;

(18) resources HHSC determines are not accessible to the household;

(19) funds from educational assistance payments (but only during the quarter, semester, or applicable period the payment is intended to cover);

(20) equity value of resources that are not legally available (inaccessible) to the household;

(21) a nonliquid resource if its equity is less than or equal to $1,500;

(22) a One-Time Temporary Assistance for Needy Families (OTTANF) payment for the month of receipt and any remaining OTTANF benefits the month after receipt;

(23) a TANF One-Time Grandparent payment;

(24) reimbursements earmarked and used for replacing or repairing an exempt resource;

(25) for a household containing a sponsored alien, the resources of a sponsor and the sponsor's spouse to the extent allowed by federal law;

(26) resources of residents in shelters for battered women and children if:

(A) resources are jointly owned by the household in the shelter and members of the former household; and

(B) shelter resident's access to the value of the resource depends on the agreement of a joint owner who still lives in the resident's former household;

(27) resources of a recipient of Supplemental Security Income living in the home; and

(28) liquid resources resulting from the earnings of a certified child who is attending school full time, or less than full time and employed less than 30 hours per week.

§366.829.Income Limits.

(a) To be eligible for the Medically Needy Program, an applicant or recipient must meet the applicable Medically Needy Income Limit (MNIL) as provided in the following table:

Figure: 1 TAC §366.829(a)

(b) An applicant whose net income exceeds the applicable MNIL may, in accordance with 42 CFR §435.831, spend down the excess amount of income to pay unpaid medical bills and qualify for the Medically Needy Program with spend down.

§366.831.Determining Whose Income Counts.

(a) To determine income eligibility for the Medically Needy Program, the Texas Health and Human Services Commission (HHSC) counts the income of:

(1) the members of the budget group;

(2) each parent of a child in the certified group who lives in the household;

(3) each sibling, if included in the budget group, of a dependent child in the certified group who lives in the household;

(4) stepparents living with the certified group;

(5) in the case of an unmarried minor parent recipient, parents of the minor who live with the minor; and

(6) in the case of a household containing a sponsored alien, the income of the alien's sponsor and the sponsor's spouse to the extent allowed by federal law.

(b) A newborn whose legal mother was a Texas Medicaid recipient when the child was born is not required to meet income eligibility requirements.

(c) HHSC does not count the applied income of stepparents or grandparents with whom the child lives if the income resulted in the denial of eligibility for Temporary Assistance for Needy Families.

§366.833.Allowable Income Deductions.

The Texas Health and Human Services Commission (HHSC) allows the following deductions when determining countable income:

(1) a work-related expense deduction of up to $120 of earned income for each employed person whose needs are included in the budget group or certified group or who is a disqualified member;

(2) a dependent care deduction of $200 per month for each child under two years of age, and $175 per month for each dependent two years of age or older, including an earned income deduction for the actual costs of unreimbursed payments if the person incurs an expense for the care of a child or incapacitated adult (even when the child or incapacitated adult is not included in the certified group) or transportation of a child to and from day care or school;

(3) payments to dependents living outside the home;

(4) alimony;

(5) child support payments made by a member of the budget group; and

(6) up to $75 per month disregard in regular child support payments received per household, except HHSC counts all child support payments a household received if HHSC determines the household has violated an agreement to assign child support to the State.

§366.835.Exempt Income.

The Texas Health and Human Services Commission (HHSC) exempts the following as countable income:

(1) any income that federal law excludes;

(2) the earnings of a child:

(A) who is 18 years of age and is:

(i) a full-time student, including a home-schooled student, or a part-time student employed less than 30 hours a week; and

(ii) considered a child; or

(B) who is under 18 years of age and is:

(i) a full-time student, including a home-schooled student; or

(ii) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions that are from private, nonprofit organizations and are based on need;

(4) proceeds from claims on insurance policies to compensate for a loss or that are used to pay medical expenses;

(5) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(6) payments under the Workforce Investment Act of 1998;

(7) the value of any benefits received under a government nutrition assistance program that is based on need, including benefits under the Supplemental Nutrition Assistance Program (SNAP) (formerly the Food Stamp Program), the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(8) foster care payments;

(9) payments made under a government housing assistance program based on need;

(10) energy assistance payments;

(11) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item that is covered by budgetary needs;

(12) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(13) reimbursements for monies spent on items not covered by budgetary needs;

(14) amounts deducted from royalties for production expenses and severance taxes;

(15) all income of Supplemental Security Income recipients;

(16) third-party funds received and used for a third-party beneficiary who is not a household member;

(17) vendor payments made from funds not legally obligated to the household;

(18) veterans benefits for special needs that are not items covered by budgetary needs;

(19) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(20) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(21) up to $2,000 of gifts annually from tax-exempt organizations provided to children with life-threatening conditions;

(22) independent living payments to youths who are leaving foster care, as provided by the Social Security Act, Title IV-E (42 U.S.C. §670 et seq.);

(23) funds from payments of up to $2,000 to Native Americans made under the federal Old Age Assistance Claims Settlement Act (25 U.S.C. §2301) or the federal Alaska Native Claims Settlement Act (43 U.S.C. §1601);

(24) funds from payments made to volunteers under Title I of the Domestic Volunteer Services Act of 1973;

(25) funds from adoption subsidy payments made under Title IV-A and Title IV-E of the Social Security Act;

(26) funds from insurance policy dividends;

(27) funds from veterans payments earmarked as a housebound allowance or as an aid and attendance allowance;

(28) earned income tax credit payments;

(29) federal, state, or local government payments provided to rebuild a home or replace personal possessions damaged in a disaster, including payments under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. §5121 et seq.), if the recipient is subject to legal sanction if the payment is not used as intended;

(30) funds from educational assistance payments (but only during the quarter, semester, or applicable period that the payment is intended to cover);

(31) loans, if the circumstances satisfy HHSC that there exists an understanding that the money will be repaid, and the applicant or recipient reasonably explains to HHSC how the money will be repaid; and

(32) crime victim's compensation payments.

§366.837.Pursuit and Acceptance of Income.

(a) Household members must pursue and accept all income to which they are legally entitled. The Texas Health and Human Services Commission (HHSC) may determine that a certified group is ineligible for benefits due to a household member's failure to comply with this requirement.

(b) HHSC may grant good cause for failure to comply with this requirement if:

(1) the potential income is Supplemental Security Income (SSI), the person is physically or mentally unable to apply for the SSI, and HHSC fails to assist the person with the SSI application process; or

(2) if HHSC determines that pursuing or accepting the income:

(A) would cause financial hardship to the household;

(B) would not be cost-effective;

(C) would endanger the health or safety of a household member; or

(D) would require the assistance of an attorney, which the person was unable to obtain after making a reasonable effort.

§366.839.Third-party Resources.

Medicaid is considered the payor of last resort for a person's medical expenses. As a condition of eligibility, in accordance with 42 CFR §§433.138 - 433.148, an applicant or recipient must:

(1) assign to the Texas Health and Human Services Commission (HHSC) the applicant's or recipient's right to recover any third-party resources available for payment of medical expenses covered under the Texas State Plan for Medical Assistance; and

(2) report to HHSC any third-party resource within 60 days after learning about the third-party resource.

§366.841.Medicaid Eligibility Effective Date.

The Texas Health and Human Services Commission (HHSC) determines Medicaid eligibility 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, except that:

(A) a pregnant woman's coverage begins no earlier than the first day of the month in which the pregnancy began (coverage ends the second month after the month in which the pregnancy terminates); and

(B) a newborn's coverage begins no earlier than the child's date of birth (coverage ends the month of the child's first birthday).

(3) The Medicaid coverage of an applicant whose net 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.

§366.843.Resident of an Institution for Mental Diseases.

A person who lives in an institution for mental diseases, as defined in 42 CFR §435.1010, is only eligible for Medicaid payment for Medicaid covered services received while residing in the institution for mental diseases to the extent allowed by federal law.

§366.845.Inmates of Public Institutions.

An inmate of a public institution, including a jail, prison, reformatory, or other correctional or holding facility, as defined in 42 CFR §435.1009 and §435.1010, is not eligible for Medicaid payment for Medicaid-covered services received while residing in the public institution.

§366.847.Exemption for Newborns.

(a) Except as described in subsection (b) of this section, a newborn is exempt from the following:

(1) resources requirements in §366.823 of this subchapter (relating to Resources);

(2) child support and medical support requirements in §366.821 of this subchapter (relating to Child Support and Medical Support);

(3) school attendance; and

(4) social security number requirements in §366.815 of this subchapter (relating to Social Security Number).

(b) If a pregnant woman received assistance under the Medically Needy Program with spend down, her newborn is not exempt as described in subsection (a) of this section.

§366.849.Comprehensive Health Care Requirements.

(a) A parent or guardian of an applicant must:

(1) attend a health care orientation;

(2) accompany the child on a visit to a health care provider; or

(3) meet with a Texas Health and Human Services Commission (HHSC) representative to discuss the child's eligibility and, as appropriate, receive counseling on the child's need for comprehensive health care.

(b) The parent or guardian of a recipient who is eligible for Texas Health Steps must:

(1) comply with the Texas Health Steps regimen of health care requirements, as required by the Texas Department of State Health Services in 25 TAC Chapter 33 (relating to Early and Periodic Screening, Diagnosis, and Treatment); or

(2) meet with an HHSC representative to discuss the child's eligibility and, as appropriate, receive counseling on the child's need for comprehensive health care.

§366.851.Eligibility Renewal.

(a) Texas Health and Human Services Commission (HHSC) may elect to review eligibility every 12 months, but in most cases, HHSC reviews eligibility every six months.

(b) Before the end of the eligibility period, HHSC mails a review form to the household. HHSC schedules an appointment for an eligibility interview when the recipient returns the application.

§366.853.Information from Other Agencies.

(a) Periodically, the Texas Health and Human Services Commission (HHSC) and other state and federal agencies compare the information they have stored on computer files.

(b) After comparing information with another agency, HHSC contacts the Medicaid recipient if the information does not match, so that HHSC can confirm the correct information.

(1) If the mismatch of information does not affect eligibility, HHSC does not take action to adjust or deny Medicaid.

(2) If the mismatch of information affects eligibility, HHSC takes appropriate action to adjust or deny Medicaid and sends a written notice of action taken to the Medicaid recipient.

§366.855.Requirement to Report Changes.

(a) A recipient must report the following changes within 10 days after the household learns of a change:

(1) in income, including the source of income and the amount of countable income;

(2) in resources, including the amount of countable resources, changes in vehicle ownership, and the receipt of a lump sum payment or settlement;

(3) in household composition, including new household members and household members who leave the home;

(4) of address;

(5) to medical insurance;

(6) in information relating to an absent parent (such as a new job or residence address); and

(7) in circumstances, other than employment, that affects benefits.

(b) A recipient who is pregnant must report the termination of pregnancy.

(c) A recipient under 19 years of age must report a change in address, and a child leaving or joining the household. The child is continuously eligible, regardless of reported income and resource changes, until Medicaid eligibility is reviewed.

§366.857.Right to Appeal.

(a) An applicant or recipient has the right to appeal Texas Health and Human Services Commission (HHSC) decisions. Appeals are governed by HHSC's fair hearing rules contained in Chapter 357 of this title (relating to Hearings).

(b) HHSC provides an action notice regarding an HHSC decision to applicants and recipients. The action notice includes information about how to file an appeal and the availability of free legal representation.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905111

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


SUBCHAPTER I. EMERGENCY MEDICAL SERVICES FOR ALIENS INELIGIBLE FOR REGULAR MEDICAID

1 TAC §366.901, §366.903

Statutory Authority

The new sections are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The new sections affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§366.901.Legal Basis.

(a) Title XIX of the Social Security Act (42 U.S.C. §1396 et seq.) and 42 CFR §435.139 require the state to provide Medicaid for the treatment of an emergency medical condition to an alien who is ineligible for regular Medicaid due to immigration status. The Texas Health and Human Services Commission administers the program in Texas.

(b) To qualify for Medicaid for the treatment of an emergency medical condition, an applicant must meet the eligibility requirements in this subchapter.

(c) Nothing in these rules shall be construed to violate the maintenance of eligibility requirements of section 5001 of the American Recovery and Reinvestment Act of 2009 (Public Law 111-5) and make eligibility standards, methodologies, or procedures under the Texas State Plan for Medical Assistance (or any waiver under section 1115 of the Social Security Act (42 U.S.C. §1315)) more restrictive than the eligibility standards, methodologies, or procedures, respectively, under such plan (or waiver) that were in effect on July 1, 2008.

§366.903.Application and Eligibility Requirements.

(a) To apply for Medicaid for the treatment of an emergency medical condition, a person completes an application for assistance and returns it to a Texas Health and Human Services Commission office or representative.

(b) To qualify for Medicaid for treatment of an emergency medical condition, a person must:

(1) be:

(A) a qualified alien as defined in 8 U.S.C. §1641 who does not meet the requirements to receive Medicaid under the Texas State Plan for Medical Assistance, which is a document describing the Medicaid-funded services provided in Texas in accordance with §1902 of the Social Security Act (42 U.S.C. §1396a); or

(B) an undocumented non-qualified alien as described in 8 U.S.C. §1611;

(2) be otherwise eligible for regular Medicaid services; and

(3) require treatment of an emergency medical condition as described in 42 CFR §440.255(c).

(c) An undocumented non-qualified alien applying for Medicaid for the treatment of an emergency medical condition is exempt from providing proof of alien status or providing a Social Security number as described in 42 CFR §435.406(b).

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905112

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


CHAPTER 372. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES AND SUPPLEMENTAL NUTRITION ASSISTANCE PROGRAMS

SUBCHAPTER B. ELIGIBILITY

DIVISION 7. INCOME

1 TAC §372.404

The Health and Human Services Commission (HHSC) proposes an amendment to §372.404, concerning countable and excluded income in the Temporary Assistance for Needy Families (TANF) Program, in Chapter 372, Temporary Assistance for Needy Families and Supplemental Nutrition Assistance Programs.

Background and Justification

The purpose of the amendment is to revise a TANF income exclusion regarding payments under the Workforce Investment Act of 1998 (WIA). The current rule excludes certain WIA on-the-job training payments from a person's income for the purpose of determining eligibility and calculating benefits for TANF. Recent guidance from the U.S. Department of Health and Human Services, Administration for Children and Families, has clarified that all income a person receives under WIA should be excluded, in accordance with 29 U.S.C. §2931(a)(2).

Section-by-Section Summary

The amendment to §372.404(8) removes the specific exclusion for on-the-job training payments made to children under WIA. The remaining language will allow HHSC to exclude all payments under WIA.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for the first five years the proposed amendment is in effect, enforcing or administering the amendment does not have significant fiscal impact relating to costs or revenues of state or local governments.

Small Business and Micro-business Impact Analysis

Ms. Rymal has determined that there will be no effect on small businesses or micro-businesses to comply with the proposal, because the proposal does not require them to alter their business practices. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.

Public Benefit

Joanne Molina, Deputy Executive Commissioner for Social Services, has determined that, for each year of the first five years the amendment is in effect, the anticipated public benefit expected as a result of enforcing the amendment is that HHSC will be in compliance with federal guidelines.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Texas Government Code.

Public Comment

Written comments on the proposal may be submitted to Hilary Davis, Health and Human Services Commission, Texas Works Policy, MC 2039, 909 West 45th Street, Austin, TX 78751, or by e-mail to hilary.davis@hhsc.state.tx.us, within 30 days after publication of this proposal in the Texas Register.

Legal Authority

The amendment is proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and Texas Human Resources Code, Chapter 31, which authorizes HHSC to administer financial assistance programs.

The amendment affects Texas Government Code, Chapter 531; and Texas Human Resources Code, Chapter 31.

§372.404.Countable and Excluded Income in TANF.

In the TANF program, the Texas Health and Human Services Commission (HHSC) counts all income of a person described in §372.403 of this division (relating to Determining Whose Income Counts in TANF), except HHSC excludes the following:

(1) any income federal law excludes;

(2) the earned income of a child who is:

(A) a full-time student, as defined by the school (regardless of how many hours the child works); or

(B) a part-time student employed less than 30 hours a week;

(3) up to $300 per federal fiscal quarter in cash gifts and contributions from private, nonprofit organizations and based on need;

(4) up to $75 per month in regular child support payments per household, except HHSC counts all child support payments a household receives if HHSC determines the household violated an agreement to assign child support to the State;

(5) income legally diverted before actual receipt, such as payments a parent makes for alimony, child support, and to dependents outside the home;

(6) proceeds from claims on insurance policies to compensate a loss or used to pay medical expenses;

(7) payments from federal volunteer programs for volunteer service, such as payments:

(A) for volunteer service in a senior citizen volunteer program, under the Domestic Volunteer Service Act (42 U.S.C. §5000 et seq.);

(B) for volunteer service to Volunteers in Service to America (VISTA), under 42 U.S.C. §§4951 - 4960; and

(C) for volunteer service under the National and Community Service Act (42 U.S.C. §§12511 - 12656);

(8) payments [from federal programs for on-the-job training made to a child under 19 years of age and under the parental control of another household member, including payments made under any law described in paragraph (7) of this section, or] under the Workforce Investment Act of 1998;

(9) the value of any benefits received under a government nutrition assistance program based on need, including benefits under SNAP, the Child Nutrition Act of 1966, the National School Lunch Act, and the Older Americans Act of 1965;

(10) foster care payments;

(11) payments made under a government housing assistance program based on need;

(12) energy assistance payments;

(13) job training payments that:

(A) are earmarked as reimbursement for training-related expenses; and

(B) do not duplicate payment for an item covered by budgetary needs;

(14) a lump sum provided and used to pay burial, legal, or medical bills, or to replace damaged or lost possessions, except HHSC does not exclude amounts from lump sums used for another purpose;

(15) reimbursements for monies spent on items not covered by budgetary needs;

(16) amounts deducted from royalties for production expenses and severance taxes;

(17) all income of Supplemental Security Income recipients;

(18) third-party funds received and used for a third-party beneficiary who is not a household member;

(19) vendor payments from funds not legally obligated to the household;

(20) veterans benefits for special needs items not covered by budgetary needs;

(21) workers' compensation payments legally obligated to the recipient that are earmarked and used for medical expenses;

(22) the amount of any nonfarm self-employment income offsetting a tax deduction taken that year for a farm loss, for households with farms generating income of at least $1,000 annually;

(23) any income described in §372.355(d) of this subchapter (relating to Treatment of Resources in SNAP);

(24) any income described in §372.354(c)(4), (13), (17), and (18) of this subchapter (relating to Treatment of Resources in TANF);

(25) crime victim's compensation payments; and

(26) the earned income of a person who marries a caretaker or payee, for the first six months from the date of the marriage, if:

(A) the caretaker or payee is receiving TANF benefits on the date of the marriage; and

(B) the combined income of the person and the caretaker or payee, countable under this section, not exceeding 200% of the Federal Poverty Guidelines, as calculated based on the total number of the following persons:

(i) the caretaker or payee;

(ii) the person who marries the caretaker or payee;

(iii) each child living in the household who is related to the caretaker, payee, or person within the degree described in §372.108 of this chapter (relating to Relationship Requirement); and

(iv) a required member if not disqualified or ineligible.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905113

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576


1 TAC §372.410

The Texas Health and Human Services Commission (HHSC) proposes an amendment to §372.410, concerning allowable deductions from countable income in SNAP, in Chapter 372, Temporary Assistance for Needy Families and Supplemental Nutrition Assistance Programs.

Background and Justification

The amendment mandates the use of the standard utility allowance (SUA) or basic utility allowance (BUA) when calculating the shelter expense deduction for purposes of determining net income for the Supplemental Nutrition Assistance Program (SNAP), as allowed by the Code of Federal Regulations, Title 7, §273.9(d)(6)(iii)(E). The current rule allows a household with utility expenses to choose the option of using either the SUA or actual utility expenses, which requires verification of expenses. Additionally, the current rule requires proration of utility expenses between households living together and sharing utility expenses and also certain households with disqualified members. Currently, HHSC staff must act on changes in the source or amount of heating or cooling costs when reported between certification periods.

The proposal will consolidate and simplify HHSC's SNAP shelter utility policies. The change will eliminate the option of allowing actual utility expenses and also eliminate the proration of utility standards. Ending the use of actual expenses will also eliminate the requirement that staff act on changes in the source or amount of heating or cooling costs reported between certification periods. The new policy will mean higher SNAP benefit amounts for approximately 120,000 households, although it will also decrease benefits for approximately 16,000 households who currently deduct actual utility expenses and have excess shelter costs greater than $325.

Additionally, the amendment clarifies other parts of the rule to ensure that the rule accurately reflects current policy and practice.

Section-by-Section Summary

The amendment to §372.410 clarifies that HHSC does not allow a deduction for expenses related to any type of income from illegal activities; eliminates the requirement that households qualify for the SUA based on out-of-pocket heating and cooling costs; provides for a deduction for a telephone allowance for a household with a telephone expense that does not qualify for either the SUA or the BUA; and states that HHSC does not allow a deduction for actual utility expenses.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for the first five years the proposed amendment is in effect, there are foreseeable implications relating to revenue coming into the state. There are no foreseeable implications relating to costs or revenues of local governments.

There is no effect on state government for the first five years the proposed amendment is in effect since these benefits are paid directly by the federal government and are not part of the state budget. The additional federal SNAP benefits that would enter the Texas economy are estimated to be $85.6 million each fiscal year the policy is in effect.

Small Business and Micro-business Impact Analysis

Ms. Rymal has determined that there will be no effect on small businesses or micro-businesses to comply with the proposal because the proposal does not require them to alter their business practices.

There is no anticipated negative impact on local employment.

Public Benefit

Joanne Molina, Deputy Executive Commissioner for Social Services, has determined that, for each year of the first five years the amendment is in effect, the anticipated public benefit expected as a result of enforcing the amendment is that additional SNAP benefits will be available to low-income households in Texas. In addition, the reduced workload and policy simplification that this proposal facilitates will allow HHSC staff to serve their clients with greater efficiency and fewer errors.

Ms. Rymal anticipates the new policy will mean higher SNAP benefit amounts for approximately 120,000 households, although it will also decrease benefits for approximately 16,000 households who currently deduct actual utility expenses and have excess shelter costs greater than $325.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Texas Government Code.

Public Comment

Written comments on the proposal may be submitted to Lynn Graves, HHSC Office of Family Services, Texas Works Policy MC-2039, 909 West 45th Street, Austin, Texas 78751, or by e-mail to lynn.graves@hhsc.state.tx.us, within 30 days after publication of this proposal in the Texas Register.

Public Hearing

HHSC will hold a public hearing on December 11, 2009, at 9:00 a.m. (Central Time) to receive public comment on the proposal. The hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring Americans with Disabilities Act (ADA) accommodation or auxiliary aids or services should contact Graciela Reyna by calling (512) 206-4778, at least 72 hours prior to the hearing so appropriate arrangements can be made.

Legal Authority

The amendment is proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and Texas Human Resources Code, Chapter 33, which authorizes HHSC to administer nutritional assistance programs.

The amendment affects Texas Government Code, Chapter 531; and Texas Human Resources Code, Chapter 33. No other statutes, articles, or codes are affected by this proposal.

§372.410.Allowable Deductions from Countable Income in SNAP.

In SNAP, the Texas Health and Human Services Commission (HHSC) allows a deduction for expenses as required by [follows] 7 CFR §273.9, and HHSC:

(1) allows actual self-employment expenses but does not deduct expenses [costs] related to [ self-employment] income from illegal activities;

(2) allows an uncapped excess shelter deduction for households with an elderly or disabled member, even if the member is disqualified;

(3) deducts a standard utility allowance (SUA) for households that qualify [due to out-of-pocket heating and cooling costs];

(4) deducts a basic utility allowance (BUA) for households with utility expenses that do not qualify for the SUA [standard utility allowance ] in paragraph (3) of this section;

(5) deducts a telephone allowance for households with a telephone expense that do not qualify for the SUA in paragraph (3) of this section or the BUA in paragraph (4) of this section;

(6) [(5)] allows a standard shelter deduction for homeless households [ under 7 CFR §273.9(d)(1)]; [and]

(7) does not allow a deduction for actual utility expenses; and

(8) [(6)] gives elderly or disabled households the option of deducting actual allowable medical expenses (as explained in 7 CFR §273.9(d)(3)) or[ ,] using a standard medical deduction of an [, whichis a set ] amount HHSC negotiates annually with the U.S. Department of Agriculture, Food and Nutrition Service.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 9, 2009.

TRD-200905147

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6900


CHAPTER 374. TEMPORARY ASSISTANCE FOR NEEDY FAMILIES (TANF)-LEVEL MEDICAL ASSISTANCE

SUBCHAPTER A. PROGRAM REQUIREMENTS

1 TAC §§374.1 - 374.11

(Editor's note: The text of the following sections proposed for repeal will not be published. The sections may be examined in the offices of the Texas Health and Human Services Commission or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin, Texas.)

The Health and Human Services Commission (HHSC) proposes the repeal of Chapter 374, §§374.1 - 374.11, concerning eligibility and participation requirements for Temporary Assistance for Needy Families (TANF)-Level Medical Assistance.

Background and Purpose

The existing rules in Chapter 374 provide eligibility and participation criteria HHSC uses to determine a person eligible for TANF-level medical assistance. Repeal of the existing rules will allow the simultaneous adoption of new rules in Chapter 366, Subchapter G that are updated with correct agency names and rule cross-references and are easier to find and use.

HHSC is proposing new rules governing TANF-level medical assistance in Chapter 366 elsewhere in this issue of the Texas Register.

Government Code, §2001.039, requires that each state agency review and consider for re-adoption each rule adopted by that agency pursuant to the Government Code, Chapter 2001 (the Administrative Procedure Act). HHSC has reviewed all sections in Chapter 374 and has determined that, although the reasons for adopting rules governing TANF-level medical assistance continue to exist, the rules need updating and would be better located in another chapter of the Texas Administrative Code with similar rules. As a result of this review, HHSC is proposing these repeals.

Section-by-Section Summary

The proposed repeals delete Chapter 374 in its entirety.

Fiscal Note

Greta Rymal, Deputy Executive Commissioner for Financial Services, has determined that, for the first five years after the repeals, there are no foreseeable implications relating to costs or revenues of state or local governments.

Small Business and Micro-Business Impact Analysis

Ms. Rymal has also determined that the proposed repeals will have no adverse economic effect on small businesses or micro-businesses, because the repeals do not require them to alter their business practices. There are no anticipated economic costs to persons who are required to comply with the proposed rules. There is no anticipated negative impact on local employment.

Public Benefit

Joanne Molina, Deputy Executive Commissioner for Social Services, has determined that, for each year of the first five years after the repeals, the public benefit expected as a result of repealing the sections is that the repealed sections will be replaced with new rules that provide the public with current information and are easier to use.

Regulatory Analysis

HHSC has determined that this proposal is not a "major environmental rule" as defined by §2001.0225 of the Texas Government Code. "Major environmental rule" is defined to mean a rule the specific intent of which is to protect the environment or reduce risks to human health from environmental exposure and that may adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, or the public health and safety of a state or a sector of the state. This proposal is not specifically intended to protect the environment or reduce risks to human health from environmental exposure.

Takings Impact Assessment

HHSC has determined that this 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 §2007.043 of the Texas Government Code.

Public Comment

Written comments on the proposal may be submitted to Regina Perez, Health and Human Services Commission, Office of Family Services, MC 2039, 909 West 45th Street, Austin, TX 78751, or by e-mail to gina.perez@hhsc.state.tx.us, within 30 days after publication of this proposal in the Texas Register.

Public Hearing

HHSC will hold a public hearing on December 11, 2009, at 2:00 p.m. (Central Time) to receive public comment on the proposal. The hearing will be held in the Lone Star Conference Room of the Health and Human Services Commission, Braker Center, Building H, 11209 Metric Boulevard, Austin, Texas. Entry is through Security at the main entrance of the building, which faces Metric Boulevard. Persons requiring Americans with Disabilities Act (ADA) accommodation or auxiliary aids or services should contact Graciela Reyna by calling (512) 206-4778, at least 72 hours prior to the hearing so appropriate arrangements can be made.

Legal Authority

The repeals are proposed under Texas Government Code, §531.0055, which provides the Executive Commissioner of HHSC with rulemaking authority; and §531.021, which authorizes HHSC to administer the federal medical assistance (Medicaid) program in Texas.

The repeals affect Texas Government Code, Chapter 531. No other statutes, articles, or codes are affected by this proposal.

§374.1.Eligibility Requirement.

§374.2.Resources.

§374.3.Three Months Prior Medicaid Coverage.

§374.4.Four Months Post-Medicaid Eligibility.

§374.5.Twelve-Month Transitional Medicaid.

§374.6.Third-Party Resources.

§374.7.Failure to Comply with Third-Party Resources.

§374.8.Medical Support.

§374.9.Failure to Comply with Medical Support.

§374.10.Work Requirement.

§374.11.Failure to Comply with Work Requirements.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State on November 6, 2009.

TRD-200905114

Steve Aragon

General Counsel

Texas Health and Human Services Commission

Earliest possible date of adoption: December 20, 2009

For further information, please call: (512) 424-6576