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Texas Women's Health Program Abortion Affiliate Rules

Texas Women's Health Program Abortion Affiliate Rules

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Published by Andrea Grimes

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Published by: Andrea Grimes on Oct 19, 2012
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 Adoption Preamble - 1
New §39.31 - 39.45
Adoption Preamble
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC), onbehalf of the Department of State Health Services (DSHS), adopts new §§39.31 - 39.45
concerning the Texas Women’s Health Program (TWHP).
The following sections are adoptedwithout changes to the proposed text as published in the July 6, 2012, issue of the
Texas Register 
 (37 TexReg 5074) and will not be republished: §39.31, Introduction; §39.32, Non-entitlementand Availability; §39.34, Client Eligibility; §39.36, Financial Eligibility Requirements; §39.37,Denial, Suspension, or Termination of Services; Client appeals; §39.39, Covered Services;§39.40, Non-
covered Services; §39,42, Provider’s Request for Review of Claim Denial;
§39.43,Confidentiality, and §39.44, Audits; Reports.The following sections are adopted with changes to the proposed text as published in the July 6,2012, issue of the
Texas Registe
r (37 TexReg 5074) and will be republished: §39.33, Definitions;§39.35, Application Procedures; §39.38, Health-Care Providers; §39.41, Reimbursement; and§39.45, Severability.The changes respond to comments received and do not materially alter issues raised by aproposed rule. Accordingly, HHSC, on behalf of DSHS, may adopt the new text withoutrepublishing as a proposed rule.
See Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex.
,136 S.W.3d 643, 650 (Tex. 2003);
Tex. Med. Ass’n v. Tex. Worker’s Comp. Comm’n
, 137S.W.3d 342, 355 (Tex. App.
Austin 2004, no writ);
State Bd. of Ins. v. Deffebach
, 631 S.W.2d794, 801 (Tex. App.
 —Austin 1982, writ ref’d n.r.e.).
Background and Justification
In 2005, the Texas Legislature enacted Human Resources Code, §32.0248, which directed HHSCto seek a five-year Medicaid demonstration waiver to implement a project to expand access topreventive health and family planning services for non-pregnant, non-sterile women who werenot eligible to receive Medicaid services but who, following pregnancy, would be presumptivelyeligible for Medicaid services along with their newborn infant(s). In accordance with thestatutory directive, HHSC requested a waiver from the Secretary of Health and Human Servicespursuant to section 1115 of the Social Security Act (42 U.S.C. §1315). The Secretary approvedthe request for a five-year period beginning December 21, 2006. Human Resources Code,§32.0248 expired by its terms on September 1, 2011.The 82
Texas Legislature enacted two laws to govern the Medicaid Women’s Health Program
or a successor to that program following the expiration of Human Resources Code, §32.0248.The first was a contingency rider to the General Appropriations Act (Rider 62 to Article II) that
instructs HHSC to continue providing Women’s Health Program services contingent upon the
 Adoption Preamble - 2federal Centers for Medicare and Medicaid Services (CMS) granting a waiver. The second lawwas an amendment to Human Resources Code, §32.024, which requires HHSC to ensure that
any funds spent for purposes of the Medicaid Women’s Health Program “or a similar successor 
program is not be used to perform or promote elective abortions, or to contract with entities thatperform or promote elective abortions or affiliate with entities that perform or promote elective
abortions.” Tex. Hum. Res. Code §32.024(c
-1).HHSC submitted a request to CMS to renew the demonstration project waiver in the fall of 2011.The waiver renewal notified CMS that HHSC intended to implement the requirements of statelaw in administering the program. Those requirements were codified in administrative rules thatHHSC proposed in September 2011. The proposed rules established qualifications for providersto participate in the Medicaid
Women’s Health Program. The proposed rules disqualified a
provider that performs or promotes elective abortions or that affiliates with another entity thatperforms or promotes elective abortions from participating in the program.CMS notified HHSC in December 2011 that it would not approve the waiver renewal applicationif HHSC adopted the proposed limitations on provider participation. CMS agreed to extend the
waiver to permit CMS and HHSC to resolve CMS’ objection to HHSC’s proposed policy. The
d Women’s Health Program is, as of the date of the order adopting these rules, still
operating.HHSC adopted the proposed rules, effective March 14, 2012. On March 15, 2012, CMS denied
HHSC’s waiver renewal application and requested a plan to transition
clients of the Medicaid
Women’s Health Program to other services, if available.
 Following the CMS denial, Governor Rick Perry directed the Executive Commissioner of HHSCto develop a plan to implement a program funded by state general revenue to replace the
Medicaid Women’s Health Program. That plan proposed placing the general revenue
 program within the DSHS Preventive and Primary Care Unit’s (PPCU) Primary Health Care
Services Program. The Primary Health Care Services Program is operated in accordance withHealth and Safety Code, Chapter 31, which authorizes DSHS to establish a primary health careservices program to provide to eligible individuals primary health care services, including familyplanning services and health screenings. The new pro
gram was named the Texas Women’s
Health Program and will be funded by general revenue originally appropriated to HHSC
consisting of (1) general revenue appropriated to fund the Medicaid Women’s Health Program;
(2) administrative savings resulting from unexpended appropriations for the completed TexasIntegrated Eligibility and Redesign System (TIERS); (3) general revenue savings resulting froma targeted hiring freeze; and (4) the general revenue share of collections of Medicaid fraud,abuse, and waste. HHSC received approval of the Legislative Budget Board to transfer suchfunds for this purpose in May 2012.
These rules are intended to transition the Medicaid Women’s Health Program to the TWHP,
operated by DSHS or its designee through the DSHS PPCU Primary Health Care Services
Program. DSHS has determined that, in light of the federal government’s denial of the State’srequest to extend the Medicaid Women’s Health Program waiver and its decision to terminate
federal funding for this purpose, there is a need for the services that this program will provide
 Adoption Preamble - 3across the state, as directed by Health and Safety Code, §31.003(d). DSHS further hasdetermined that the classes of women who will be served may be, without the establishment of the TWHP, unable to obtain the preventive health care, contraceptives, and screenings thisprogram will provide. As a consequence, the State would require more funds to pay Medicaidcosts for prenatal care, births, and health-care problems that might otherwise be averted orminimized.
DSHS and HHSC have reviewed and prepared responses to comments received regarding theproposed rules during the comment period and during the public hearing held on September 4,2012.DSHS received comments in support of the proposed Tex
as Women’s Health Program rules,
either whole or in part, from the following entities: And Then There Were None; San AntonioCoalition for Life; Texas Alliance for Life; and Texas Right to LifeDSHS received comments opposed to the proposed TWHP rules, either in whole or in part, fromthe following entities: Texas Planned Parenthood; American Civil Liberties Union of Texas;League of Women Voters of Texas; Texas Policy Evaluation Project; Legacy Community HealthServices; National Council of Jewish Women, Austin Section; NARAL Pro-Choice of Texas;Texas Medical Association (TMA); Texas Association of Obstetricians and Gynecologists(TAOG); Texas Academy of Family Physicians (TAFP); American Congress of Obstetriciansand Gynecologists (ACOG); Texas Pediatric Society (TPS); Center for Public Policy Priorities
(CPPP); Healthy Futures Alliance; and People’s Community Clinic.
 DSHS received comments from the following entities requesting changes to the proposed TWHPrules: Texas Association of Community Health Centers (TACHC) and Texas HospitalAssociation (THA).Numerous comments also were received from interested individuals.In general, the comments received related either to the sufficiency of the Preamble to theproposed rules or the substance of the rules itself.
Comments Received on the Adoption Preamble
Several comments suggest that the Preamble to the proposed rules did not fully comply withrequirements in the Administrative Procedure Act, Government Code, Chapter 2001.Government Code, §
2001.024(a) lists the items that must be included in an agency’s notice of a
proposed rule. Among other things, section 2001.024(a) requires:(3) a statement of the statutory or other authority under which the rule is proposed to be adopted,including:

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