In the 84th Session, health care legislation focused on many subject areas including compassionate use, Medicaid, and health care data. Much of the focus in the health care space was on the Sunset review of the Health and Human Services Enterprise. Each of the five agencies that make up the Enterprise was reviewed independently as well as the Office of Inspector General.
Compassionate Use
HB 21 (Kacal/Bettencourt) authorizes the use of non-FDA approved medications for patients with terminal illnesses when other FDA approved drugs have not been shown to be effective. Known as the Right to Try Act, the legislation will allow for the use of drugs which have passed safety testing and are currently in the clinical trial process. Pharmaceutical manufacturers are not required to make the drugs available to patients but if drugs are made available, the manufacturer may not receive compensation. The bill has been signed by the Governor and became effective June 12.
SB 339 (Eltife/Klick) authorizes the medical use of low-THC cannabis for patients with intractable epilepsy, a seizure disorder, which has not been controlled by multiple antiepileptic drugs. Only licensed physicians who specialize in epilepsy may prescribe the drugs. The Department of Public Safety is charged with the licensing of dispensing organizations which will cultivate, process, and dispense the low-THC cannabis product to patients. The bill has been signed by the Governor and became effective June 1.
Medicaid
HB 839 (Naishtat/Rodriguez) requires HHSC to develop a process for determining presumptive eligibility for Medicaid/CHIP for children under the age of 19. Children who are determined presumptively eligible would be waived from the Medicaid/CHIP waiting period. Currently, children who are committed to a juvenile justice facility lose their Medicaid/CHIP eligibility when they are committed. When they are released there is a coverage gap for benefits until the waiting period is over. This legislation effectively closes the coverage gap for these children. The bill was filed without the Governor’s signature and became effective June 18.
HB 3523 (Raymond/Perry) extends the deadline for transition of health services for individuals with intellectual and developmental disabilities into Medicaid managed care. The bill also expands the role of the Intellectual and Developmental Disability System Redesign Advisory Committee and requires more detailed reporting to the legislature on implementation of system redesign. The bill has been signed by the Governor and became effective June 19.
SB 760 (Schwertner/Price) requires HHSC to establish minimum provider access standards for the provider network of a Managed Care Organization that provides Medicaid services through a contract with HHSC. The bill requires access standards for individual specialties including primary care, specialty care, chronic care, etc. The bill also requires standards to distinguish between access to urban and rural providers and requires that standards consider the geographic distribution of Medicaid enrollees in each service area. The bill provides that HHSC may require an MCO to pay liquidated damages if found to be in noncompliance or to not retain or renew the MCO contract. In the bill, MCOs are required to post their provider network directories online and update them monthly with accurate information. The bill includes provisions requiring MCOs to implement expedited credentialing processes. The bill has been signed by the Governor and becomes effective September 1.
Health Care Data
HB 764 (S. King/Rodriguez) requires health care providers to notify patients whose data is collected by the Texas Health Care Information Collection. THCIC collects information including health care charges, utilization data, provider quality data, and more. The information distributed through THCIC must not reveal the identity of a patient or physician. The legislation requires the Department of State Health Services, the agency that oversees THCIC, to prepare an annual report describing security measures taken to protect data collected by THCIC and to develop best practices for use of the data which can only be used for the benefit of the public. The bill has been signed by the Governor and becomes effective September 1.
HB 2171 (Sheffield/Zaffirini) authorizes a person’s immunization data to be held in the state registry from the time a person turns 18 until they turn 26 without additional consent. Currently a parent or guardian may consent for immunization data to be collected for their child. Once the child turns 18 their information is expunged unless additional consent is given by the child after their 18th birthday. The legislation effectively gives the person additional time to consent to their information being kept in the registry. Once the person turns 26, and if no additional consent is given, their information would then be expunged. Consent can be withdrawn at any time. The bill has been signed by the Governor and becomes effective September 1.
HB 2641 (Zerwas/Schwertner) sets regulations for sending or receiving health information through a health information exchange. The legislation requires the HHSC executive commissioner to ensure standards for using the exchanges meet national standards and that interoperability standards are established. The bill has been signed by the Governor and becomes effective September 1.
Other Issues
HB 1212 (Price/Schwertner) allows the Department of State Health Services to designate a product as an “abusable synthetic substance” and allows the DSHS commissioner to issue an emergency order to schedule that product as a controlled substance. Currently, synthetic drugs evolve at a pace that makes it hard for regulations to keep up. These products can be dangerous and formulas can be altered quickly to avoid regulation. The legislation effectively gives DSHS the necessary tools to help protect the public from these potentially harmful synthetic drugs. The bill has been signed by the Governor and becomes effective September 1.
HB 2950 (Klick/V. Taylor) permanently establishes a task force on infectious disease preparedness and response. The task force is charged with advising DSHS and would provide recommendations related to state responses to infectious diseases such as Ebola. The task force is also charged with developing a comprehensive plan to ensure Texas is prepared for the potential of widespread outbreak of infectious diseases. The bill has been signed by the Governor and became effective June 19.
HB 3433 (Sheffield/Kolkhorst) would delay the implementation date for state designations of neonatal care and maternal care at neonatal intensive care units. The bill also adds rural representation to the Perinatal Advisory Council which is responsible for developing rules related to designation. Through the legislation, hospitals are now required to have their neonatal designation by September of 2018 and maternal designation by September 2020. The bill has been signed by the Governor and becomes effective September 1.
SB 97 (Hinojosa/Alvarado) regulates “vapor products” by including electronic cigarettes among the products to which provisions regulating the sale and distribution of cigarettes and tobacco products apply. The bill prohibits a person from selling or giving an e-cigarette to a minor. The bill also makes changes to warning signs prohibiting purchase of tobacco products by a minor that are required to be posted. The bill has been signed by the Governor and becomes effective October 1.
SB 133 (Schwertner/Coleman) expands the types of employees eligible to receive mental health first aid training to include school district employees and school resource officers, rather than just educators. The bill also makes changes to the grant program through which local mental health authorities can receive funding to provide mental health first aid training. The bill has been signed by the Governor and became effective June 17.
SB 195 (Schwertner/Crownover) transfers responsibility of the state’s Prescription Drug Monitoring Program from the Department of Public Safety to the Texas State Board of Pharmacy. The bill ensures DPS will have unrestricted access to prescription information and authorizes the Board to allow health care providers and pharmacists to access the system at the time they obtain or renew their license or certification. The bill also authorizes the Board to enter into interoperability agreements with other states in order to share information across the country. The bill has been signed by the Governor and became effective June 20.
SB 1753 (Campbell/S. Davis) specifies terminology for license types on identification badges to ensure that hospital patients know the qualifications of their health care providers. Legislation passed last session requiring identification badges to include a picture of the health care professional as well as their license type. This new legislation prescribes the specific occupational designations that must be included on the badge as well. Hospitals will have until September 1, 2019 to comply. The bill was filed without the Governor’s signature and becomes effective September 1.
Sunset Legislation
SB 200 (Nelson/Price) is the Sunset bill for the Health and Human Services Commission. The bill calls for the consolidation of functions of the Health and Human Services System through a phased transfer of those functions. The bill establishes a legislative oversight committee to monitor the consolidation which must be fully implemented by September 1, 2017. The bill abolishes multiple outdated and duplicative advisory committees and councils while requiring the executive commissioner to establish and maintain advisory committees for a number of different subject areas. The bill also includes provisions strengthening the oversight of Managed Care Organizations providing Medicaid services. The bill has been signed by the Governor and becomes effective September 1.
SB 202 (Nelson/Price) is the Sunset bill for the Department of State Health Services. The bill transfers thirteen regulatory programs from DSHS to the Texas Department of Licensing and Regulation and transfers four other regulatory programs to the Texas Medical Board. The bill discontinues from regulatory oversight eight programs currently under the purview of DSHS. The bill has been signed by the Governor and takes effect on September 1, 2015 except for the transfer of six regulatory programs to TDLR which would be effective September 1, 2017.
SB 206 (Schwertner/Burkett) is the Sunset bill for the Department of Family and Protective Services. The bill streamlines statutory requirements of the agency and requires Child Protective Services to implement an annual business planning process. The bill requires the agency to develop a foster care redesign implementation plan and a strategic plan for prevention and intervention services. The bill allows for the homeschooling of foster children in certain circumstances and continues the agency for twelve years. The bill has been signed by the Governor and goes into effect September 1, 2015 but allows an additional two years for development of certain rules for child care licensing.
SB 207 (Hinojosa/Gonzales) is the Sunset bill for the Office of Inspector General. The bill places responsibility for all administrative support services necessary to operate OIG with the HHSC executive commissioner. The bill calls for regular audits of the OIG by the HHSC internal audit division. The bill requires close coordination with HHSC in the performance of functions related to the prevention of fraud, waste and abuse. The bill makes numerous changes to provisions of statute related to payment holds placed on Medicaid providers and subsequent SOAH hearings. The bill would require the OIG to undergo a special Sunset review in six years. The bill has been signed by the Governor and becomes effective September 1.
HB 2463 (Raymond/Campbell) is the Sunset bill for the Department of Assistive and Rehabilitative Services. The bill creates the Transition Legislative Oversight Committee to facilitate and report on the transfer of functions contained both in the bill and in other health and human service enterprise bills. The bill also requires the integration into one program of the independent living services program for the blind and independent living services program for those with disabilities other than blindness. The bill grants DARS authorization to provide comprehensive rehabilitation services and autism services. The bill abolishes and transfers the functions of DARS that are not transferred in other legislation to HHSC by September 1, 2016. The bill has been signed by the Governor and becomes effective September 1.
Funding
All funds appropriated in Article II for Health and Human Services total $77.2 billion ($32.2 billion GR), an increase of $2.7 billion over the previous biennium. Across all HHS agencies, $61.2 billion ($25 billion GR) was appropriated for the Texas Medicaid Program, an increase of $2.1 billion. Medicaid appropriations include $1.7 billion in GR for projected caseload growth including the transition of some children from CHIP to Medicaid. These amounts maintain fiscal year 2015 average costs for most programs.
Appropriations to individual agencies include the following:
- $8.8 billion ($3.6 billion GR) to the Department of Aging and Disability Services, a $2.8 billion decrease mainly due to STAR+PLUS services being shifted to HHSC
- $957.1 million ($176 million GR) to the Department of Assistive and Rehabilitative Services, a $275.4 million decrease mainly due to program transfers to the Texas Workforce Commission
- $3.5 billion ($1.8 billion GR) to the Department of Family and Protective Services, a $363.4 million increase related to CPS caseload growth
- $6.4 billion ($2.7 billion GR) to the Department of State Health Services, a $56.8 million decrease mainly sue to trauma funding being shifted to HHSC
- $56.6 billion ($22.6 billion GR) to the Health and Human Services Commission, a $5.1 billion increase mostly due to increases in Medicaid program needs
The Federal Medical Assistance Percentage or the percentage at which federal funds are drawn down and matched with state funds for the Medicaid program is less favorable than that from the previous biennium. This has resulted in a higher proportion of the program being funded with GR, an estimated increase of $797.3 million. $587.7 million is provided in the budget to reimburse MCOs for the cost of the required Affordable Care Act Health Insurance Providers Fee and associated federal income tax. Funding includes $130.1 million for the Office of the Inspector General, an increase of $3.1 million over the previous biennium. The increase includes additional funds for the Medical Fraud and Abuse Detection Systems and is offset by a decrease due to the ending of the fraud case management system contract.
The budget provides $712.6 million for increases to hospital payments including those to rural ($58.1 million), trauma ($294 million), and safety net ($355.5 million) hospitals. Slots for an additional 5,601 long-term care waiver clients are funded in the budget with $327.6 million. Funding reflects the transfer of Vocational Rehabilitation to the Texas Workforce Commission in 2017. Funding for behavioral health and substance abuse includes $2.7 billion, an increase of 2.3 percent over the previous biennium. Funding assumes discontinuation of NorthSTAR, the behavioral health program for North Texas. Funding has been transferred to the appropriate mental health and Medicaid programs in the budget and funds are provided for the transition period.
The Texas Women’s Health Program, Expanded Primary Health Care Program and Family Planning Program have been combined into one strategy within the Health and Human Services Commission and renamed Women’s Health Services. Total funding for the strategy is $260.9 million which includes an additional $50 million to increase the number of clients served.
The budget includes $33.6 million for Ebola and other infectious diseases. This amount includes funding for epidemiological surveillance and response capacity, infectious disease response training and exercises, public health preparedness and response communications and coordination, personal protective equipment and chemical event preparedness.
