texas women's health program abortion affiliate rules

7/31/2019 Texas Women's Health Program Abortion Affiliate Rules

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Adoption Preamble - 1

TITLE 25. HEALTH SERVICESPART 1. TEXAS DEPARTMENT OF STATE HEALTH SERVICESCHAPTER 39. PRIMARY HEALTH CARE SERVICES PROGRAMSUBCHAPTER B. TEXAS WOMENS HEALTH PROGRAMNew 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 - 39.45concerning the Texas Womens 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, Providers 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 Register (37 TexReg 5074) and will be republished: 39.33, Definitions;39.35, Application Procedures; 39.38, Health-Care Providers; 39.41, Reimbursement; and39.45, 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. Commn v. Patient Advocates of Tex.,136 S.W.3d 643, 650 (Tex. 2003); Tex. Med. Assn v. Tex. Workers Comp. Commn, 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 refd 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 82ndTexas Legislature enacted two laws to govern the Medicaid Womens Health Programor 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) thatinstructs HHSC to continue providing Womens Health Program services contingent upon the


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federal 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 thatany funds spent for purposes of the Medicaid Womens 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 Womens Health Program. The proposed rules disqualified aprovider 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 application

if HHSC adopted the proposed limitations on provider participation. CMS agreed to extend thewaiver to permit CMS and HHSC to resolve CMS objection to HHSCs proposed policy. TheMedicaid Womens Health Program is, as of the date of the order adopting these rules, stilloperating.

HHSC adopted the proposed rules, effective March 14, 2012. On March 15, 2012, CMS deniedHHSCs waiver renewal application and requested a plan to transition clients of the MedicaidWomens 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 theMedicaid Womens Health Program. That plan proposed placing the general revenue-fundedprogram within the DSHS Preventive and Primary Care Units (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 program was named the Texas WomensHealth Program and will be funded by general revenue originally appropriated to HHSCconsisting of (1) general revenue appropriated to fund the Medicaid Womens 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 Womens Health Program to the TWHP,operated by DSHS or its designee through the DSHS PPCU Primary Health Care ServicesProgram. DSHS has determined that, in light of the federal governments denial of the States

request to extend the Medicaid Womens 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


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across 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 ofthe 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 or

minimized.

Comments

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 Texas Womens 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 Life

DSHS 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 Peoples 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 agencys notice of aproposed 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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(A) a concise explanation of the particular statutory or other provisions under which the rule isproposed;

(4) a fiscal note stating for each year of the first five years that the rule will be in effect:

(A) the additional estimated cost to the state and to local governments expected as a result ofenforcing or administering the rule;

(C) the estimated loss or increase in revenue to the state or to local governments as a result ofenforcing or administering the rule; and

(D) if applicable, that enforcing or administering the rule does not have foreseeable implications

relating to cost or revenues of the state or local governments;

(5) a note about public benefits and costs for each year of the first five years that the rule willbe in effect.

Adoption Preamble: Background and Justification

Comment: A commenter stated that the Preamble is insufficient because it fails to indicate (1)that the rules governing the Medicaid Womens Health Program are the subject of a lawsuit; (2)that CMS denied the States request to extend the Medicaid Womens Health Program because,according to the commenter, the rules would exclude Planned Parenthood from participating; and

(3) several other matters related to the pending litigation and the Medicaid Womens HealthProgram.

Response: The comments refer to administrative rules codified at 1 TAC 354.1361-354.1364that currently govern the Medicaid Womens Health Program administered by HHSC and not to

the rules that are the subject of this adoption, which pertain to the TWHP. The specificdeficiencies alleged by the commenter are not requirements of the notice provisions of theAdministrative Procedure Act. Further, pending litigation involving another state agency is notan appropriate subject for a rule adoption. For these reasons, DSHS is unable to respond to thesecomments.

Comment: A commenter suggested that the notice was insufficient because it failed toacknowledge that the rules would effectively violate Rider 52 of the DSHS portion of theGeneral Appropriations Act for the 2012 - 2013 fiscal years. See General Appropriations Act,82nd Leg., R.S., ch. 1355, art. II, rider 52, at II-64 to II-65 (Health and Human Services section,DSHS). Under that rider, an entity otherwise eligible to receive funds under the DSHS StrategyB.1.3, entitled Family Planning Services, will not be disqualified from receiving the funds

because it affiliates with an entity that performs elective abortions if the affiliation complies withstandards set out in the rider.


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Response: DSHS respectfully disagrees. Rider 52 applies to funds that were appropriated to theDSHS under Strategy B.1.3. As noted previously, the funds that will be used to operate theTWHP are derived from appropriations to HHSC and will not be expended pursuant to DSHSStrategy B.1.3. It was therefore unnecessary to refer to Rider 52 in the notice for the TWHP

rules.

Comment: A commenter alleged that the Preamble is insufficient because DSHS has no statutoryauthority, under either the Health and Safety Code or the Human Resources Code, to abandonthe federally subsidized Medicaid Womens Health Program.

Response: This comment, too, refers to the Medicaid Womens Health Program, over whichDSHS has no authority. Furthermore, the Administrative Procedure Act does not require a stateagency, in either the proposal or adoption of an administrative rule, to explain another stateagencys or the federal governments actions. As noted in the Background and Justificationsection above, the federal government, not the State, elected to terminate federal funding for the

Medicaid Womens Health Program. The conditions prescribed by the federal government leftthe State with three choices: (1) operate the Program in contravention of state law (HumanResources Code, 32.024(c-1)); (2) discontinue the Program entirely; or (3) replace the Programwith a wholly state-funded program that could be operated consistently with State law. And asthe Preamble explains, the State elected to pursue the third option, and DSHS has sufficientauthority under state law to operate a fully state-funded family planning program offering theservices currently provided by the Medicaid Womens Health Program.

The published Preamble for the proposed rules listed, as general authority, Health and SafetyCode, 12.001 and 1001.071. Section 12.001 authorizes DSHS generally to supervise andcontrol all matters relating to the health of the citizens of this state and HHSC, on behalf ofDSHS, to adopt rules relating to the performance ofDSHS statutory duties. Section 1001.071designates DSHS as the agency responsible for administering public health programs, withauthority to, among other things, implement its public health care delivery programs; providehealth care services; provide for the prevention and control of communicable diseases; educatethe public on health-related matters; and act as the lead agency to implement state policies andprograms relating to the human immunodeficiency virus and acquired immunodeficiencysyndrome.

The published Preamble listed, as specific authority, Health and Safety Code. 31.002(a)(4)(C)and (H), 31.003, and 31.004. Taken together, these sections explicitly authorize DSHS toestablish a program to provide primary health care services, including family planning, toeligible individuals and to adopt rules to govern and administer the program. These statutesplainly provide adequate authority for DSHS to establish the TWHP within its primary healthcare program.

Comment: Similarly, a commenter stated that the Preamble is insufficient because the creation ofa new, state-funded TWHP will violate Rider 62 of the HHSCs portion of article II of thecurrent General Appropriations Act. See General Appropriations Act, 82nd Leg., R.S., ch 1355,art. II, rider 62, at II-95 (Health and Human Services section, HHSC). Rider 62 states that the


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HHSC shall provide Womens Health Program services under Medicaid out of funds

appropriated to the HHSC under Goal B, Medicaid, contingent upon receiving a waiver from

the CMS under 1115 of the Social Security Act.

Response: By its plain terms, Rider 62 does not apply to the TWHP. Rider 62 expressly applies

to a womens health program that is funded through Medicaid (i.e., the current MedicaidWomens Health Program), but it does not apply to the TWHP, which is not funded throughMedicaid and is not contingent upon the approval of the federal CMS. The comment, therefore,does not relate to the proposed rules, and it would be inappropriate for DSHS to presume thatRider 62 applies to the program established under the adopted rules.

Comment: Other comments express disagreement with the policy behind the States decision tooperate the TWHP as a fully state-funded program, outside the federally subsidized Medicaidprogram.

Response: Because these comments are not directed to the rules per se, but to a decision of

officials that are outside the scope of the adopted rules, it is inappropriate for DSHS to respondto these comments.

Comment: A commenter stated that Texas law does not protect unborn life, and commented thatredirecting money from protecting womens health to unborn life is not consistent with the TexasConstitution and statutes.

Response: The commenter did not specify which provision of the Texas Constitution or Texaslaw the proposed rules allegedly violate. In the absence of such information, DSHS can onlyspeculate that the commenter believes either that the proposed method of finance for the TWHPviolates the state constitution or state law or that the purpose for which the supposed transfer of

funds is illegal or unconstitutional.

Article VIII, 6 of the Texas Constitution provides in pertinent part that, No money shall bedrawn from the Treasury but in pursuance of specific appropriations made by law. As notedabove, the funds for the TWHP will come from transfers from other HHSC programs. Thesetransfers were requested and approved pursuant to the General Appropriations Act.

The General Appropriations Act is a law for purposes of Article VIII, 6 of the TexasConstitution. Rider 12 to the HHSC appropriation provides, Transfers may not be made fromappropriation items in Goal B to appropriation items in other goals without prior writtenapproval from the Legislative Budget Board and the Governor. General Appropriations Act,82nd Leg., R.S., ch. 1355 (H.B. 1), art. II, 12.a.(1) at II-85. Rider 35 to the HHSC appropriationconditions use of unexpended balances of general revenue appropriated for integrated eligibilityand enrollment services on similar approvals. See id. Art. II, 35 at II-92.

HHSC sought and received such approvals. See Letter from Thomas M. Suehs, ExecutiveCommissioner, HHSC, to Jonathan Hurst, Director, Governors Office of Budget, Planning andPolicy, and Ursula Parks, Acting Director, Legislative Budget Board, (May 3, 2012) (requestingapproval of the proposed transfer of funds from HHSC to DSHS); Letter from Ursula Parks,


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Acting Director, Legislative Budget Board, to Thomas Suehs, Executive Commissioner, HHSC,(May 31, 2012) (approving HHSCs request). Accordingly, the proposed method of finance forthe TWHP on its face complies with statutory and constitutional requirements.

Furthermore, DSHS believes that the proposed transfer of funds is for a bona fide statutory

purpose-specifically, the delivery of primary and preventive health care services to non-pregnantwomen under Health and Safety Code, Chapter 31,in a manner that complies with the legislativemandate in Human Resources Code 32.024(c-1). Consequently, DSHS respectfully disagreeswith the comment.

Comment: A commenter suggested that the Preamble is insufficient because it fails toacknowledge that the Legislature has not appropriated any funds for the TWHP.

Response: DSHS disagrees with the comment. DSHS is not aware of a legal principle that wouldprohibit a state administrative agency from adopting rules to regulate activities that are within theagencys authority but for which the Legislature has not directly appropriated funds. Neither is

the department aware of an exception to notice and comment rulemaking for such programs.

To the contrary, the department believes that Texas law requires the agency to conduct arulemaking for the programs that the agency intends to administer, even if the Legislature has notappropriated funds directly to the agency for this purpose. For example, some programs areadministered by a state agency without appropriated funds. See, e.g., 1 TAC 355.8070(e)(1)(supplemental Medicaid payments to private hospitals are limited to and obtained through fundstransferred from a governmental entity to HHSC). Yet these programs are subject to therulemaking requirements of the Administrative Procedure Act.

Furthermore, the response to the previous comment demonstrates that the proposed method of

finance for the TWHP complies with the requirements of the General Appropriations Act.

Adoption Preamble: Fiscal Note

Comment: Several comments focus on the Preambles Fiscal Note, which projected the fiscalimpact of the rule for only three years, as opposed to the five years required by theAdministrative Procedure Act. The Fiscal Note stated that the estimate of fiscal impact waspremised on the assumption that TWHP clients would become eligible for Medicaid as a resultof expanded Medicaid eligibility standards that are scheduled to take effect at the federal level inJanuary 2014. July 6, 2012 issue of the Texas Register (37 TexReg 5074, 5076). The commentssuggest that the Fiscal Note does not comply with the Administrative Procedure Act and areinconsistent with a decision by state leadership not to participate in the Medicaid expansion.

Response: Section 2001 of the federal Patient Protection and Affordable Care Act of 2010(PPACA) expands eligibility for Medicaid services beginning January 1, 2014, to individualswho currently are ineligible for coverage: specifically, persons under the age of 65 (ages 19-64)who are not eligible for a current Medicaid program and:

- have incomes under 133 percent of the federal poverty limit (FPL)


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- meet citizenship requirements

- are not incarcerated, and

- are not entitled to Medicare.

42 U.S.C. 1396a(a)(10)(A)(i)(VIII). Under the PPACA, the federal government will cover 100percent of the costs of coverage for these newly eligible individuals for three years. In 2017, thefederal government will pay 95 percent of the cost; in 2020, the percentage drops to 90 percent.

DSHS submitted the proposed rules for publication to the Secretary of State on June 25, 2012,for publication in the July 6, 2012, issue of the Texas Register. Three days later, the UnitedStates Supreme Court issued its decision inNational Federation of Independent Business v.Sibelius, 132 S.Ct. 2566 (2012). The Court determined, among other things, that a state could optout of the expansion of the Medicaid program without jeopardizing federal participation in thestates existing Medicaid program. See Natl Fedn of Indep. Bus. v. Sibelius, 132 S. Ct. 2566,

260107 (2012). Following that decision, but before the publication of the proposed TWHP rulesin the Texas Register, Governor Perry announced the States intention to decline the Medicaidexpansion.

Consequently, at the time the TWHP proposed rules were approved for publication andsubmitted to the Texas Register, women who would be eligible for TWHP would have becomeeligible for Medicaid on January 1, 2014, and the federal government would have borne 100percent of the costs of their care. The fiscal note to the proposed rules, therefore, correctlyestimated the fiscal impact to the state for the five-year period beginning on the effective date ofthe rules.

In light of the changed circumstances following the approval of the proposed rules forpublication, the department has elected to revise the Fiscal Note to reflect maintenance ofMedicaid eligibility at current levels.

The revised Fiscal Note is supplied in the section headed Fiscal Note found in this preamble.

Comment: A commenter stated that the Preamble is insufficient because it fails to address costscounties may have to incur to make up the loss of access to state-funded family planning.

Response: As published, the Preamble to the Proposed Rules, as well as the revised Fiscal Noteabove, states that local governments will not incur additional costs in the enforcement or

administration of the rules. Nothing in the rules requires a county to establish a family-planningprogram; thus, no discussion of required costs is warranted. In addition, the AdministrativeProcedure Act does not require that the Preamble discuss whether any county will opt toestablish or supplement its own family-planning program, and the costs a county may incur if itdoes so.

Comment: A commenter stated that the Preamble is insufficient because the funds necessary toimplement the TWHP must be transferred from the HHSC to DSHS, which, according to the


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commenter, is not allowed by Rider 12 to the HHSCs portion of article II of the General

Appropriations Act. See General Appropriations Act, 82nd Leg., R.S., ch. 1355, art. II, rider 12,at II-79 to II-81 (Health and Human Services section, HHSC).

Response: The commenters assumptions are incorrect. Asalready noted, the funds for the

TWHP will come from transfers from other HHSC programs, and HHSC has received theapproval of the Legislative Budget Board and Governor to make the transfers in accordance withthe General Appropriations Act and, by extension, Article VIII of the Texas Constitution. SeeLetter from Thomas M. Suehs, Executive Commissioner, Texas HHSC, to Jonathan Hurst,Director, Governors Office of Budget, Planning and Policy, and Ursula Parks, Acting Director,Legislative Budget Board, (May 3, 2012); Letter from Ursula Parks, Acting Director, LegislativeBudget Board, to Thomas Suehs, Executive Commissioner, HHSC, (May 31, 2012).

Comment: A comment suggests that the Preambles Fiscal Note is insufficient because it fails toinclude increased costs to the State for prenatal care and births, which the commenter believeswill increase if family planning services are difficult to access under the TWHP.

Response: This comment requires DSHS to assume that the TWHP will fail to serve enoughwomen to avoid an increase in births among women who might be eligible but who do notreceive services from the program. DSHS is unaware of a requirement under the AdministrativeProcedure Act or other law that obligates a state agency to estimate the indirect costs to the stateof underutilization of a state program. As indicated previously, DSHS believes the State willbenefit in the long term from implementing the TWHP. Those savings are estimated in the PublicBenefit statement, a revised version of which follows the revised Fiscal Note Section.

Adoption Preamble: Public benefit

Just as the Fiscal Note in the proposed Preamble was limited to a three-year forecast, so too wasthe statement of Public Benefit.

The revised statement of Public Benefit is in the section headed Public Benefit, which followsthe revised Fiscal Note Section.

Adoption Preamble: Statutory Authority

Comment: Commenters alleged that the Preamble is insufficient because it does notacknowledge that DSHS lacks authority to appropriate by rule the funds necessary to operate theTWHP from 2014 through 2018.

Response: This comment appears to assume that an administrative agency must assure or effectan appropriation of funds that will enable future administration of an activity contemplated underproposed rules. This is incorrect. The appropriation of funds is a legislative matter, and theobligations of administrative agencies are contingent upon the exercise of legislative discretionto appropriate sufficient funds to enable the agency to administer its programs. See Hawkins v.Dallas County Hospital Dist., 150 S.W.2d 535, n. 10 (if the legislature did not provide theappropriate amount of funding to administer a program, the problem is that the legislature


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created an "unfunded mandate," a grievance that is most appropriately brought to the legislature,not the courts), citing Socorro Indep. Sch. Dist. v. State Bd. of Educ., 968 S.W.2d 547, 553(Tex.App.-Austin 1998, pet. denied);Mutchler v. Texas Dep't of Public Safety, 681 S.W.2d 282,285 (Tex.App.-Austin 1984, no writ).

As already noted, the Administrative Procedure Act requires the fiscal note for a proposed rule toforecast costs for the first five years the rule is effective. It is a given that, within any legislativesession that occurs within the five-year period forecast in a preamble, the Legislature couldotherwise direct the use of those funds. An administrative agency has only those powers that theLegislature has delegated to it. See State v. Jackson, 376 S.W.2d 341, 34445 (Tex. 1965) (citingStauffer v. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961);Brown v. Humble Oil andRefining Co., 83 S.W.2d 935, 94041 (Tex. 1935)). And the Legislature may withdraw powers ithas delegated to any agency or may preempt an administrative agencys decision by enacting

contrary legislation. See id.

Comment: A commenter suggested that Preamble is insufficient because it does not explain how

the statutory authority cited authorizes DSHS to adopt these rules.

Response: The duty of a state agency to adopt administrative arises from the terms of theAdministrative Procedure Act, which requires an administrative agency to adopt as anadministrative rule a statement of general applicability that purports to implement law orprescribe procedure. See El Paso County Hosp. Dist. v. Texas Health and Human ServiceCommn, 247 S.W.3d 709, 714 (Tex. 2008). The Administrative Procedure Act, moreover,requires a preamble to a proposed rule to state the statutory authority that authorizes the adoptionof a proposed rule, including a concise explanation of the statutory provisions and the statute

affected by the rules. Tex. Govt Code 2001.024(a)(3). DSHS believes that the statutes cited inthe Preamble and the explanation of those provisions are consistent with the Administrative

Procedure Acts requirements.

Comments Received Regarding the Proposed Rules

Comment: With respect to the rules generally, commenters expressed concern that the ruleswould make the health services offered through the TWHP inaccessible to many women, whichmight in turn lead to an increase in the number of pregnancies. The commenters believe that therules will render many providers in the Medicaid Womens Health Program unqualified to

participate in TWHP and that the providers remaining in the program will be unable to handle agreatly increased number of TWHP clients in a timely manner. Some commenters suggestedthat, for this reason, rules restricting provider participation should not be adopted.

Response: DSHS appreciates the comments; however, these concerns cannot authorize DSHS tooperate the TWHP in a manner that violates Human Resources Code, 32.024(c-1) and allowsunqualified providers to participate in the program. Further, the States efforts have been directed

at ensuring womens access to covered services. While some women enrolled in the existingMedicaid Womens Health Program will have to switch providers, DSHS believes the women

will find a new provider within a reasonable distance and geographic range. DSHS will assist alleligible women whose existing provider is not qualified to participate in the TWHP.
http://scholar.google.com/scholar_case?case=15196365263094296738&q=parkland+hawkins&hl=en&as_sdt=2,44http://scholar.google.com/scholar_case?case=15196365263094296738&q=parkland+hawkins&hl=en&as_sdt=2,44http://scholar.google.com/scholar_case?case=15196365263094296738&q=parkland+hawkins&hl=en&as_sdt=2,44http://scholar.google.com/scholar_case?case=15196365263094296738&q=parkland+hawkins&hl=en&as_sdt=2,44http://scholar.google.com/scholar_case?case=15196365263094296738&q=parkland+hawkins&hl=en&as_sdt=2,44


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Additionally, DSHS will monitor access issues and work to recruit new providers, particularly inthose areas where access may be difficult.

Comment: A commenter suggested, in the alternative, that DSHS delay implementing the ruleswhile the rules governing the Medicaid Womens Health Program are challenged in court and

while the State is appealing the CMS decision to deny the States request to extend the MedicaidWomens Health Program.

Response: DSHS appreciates the comment; however, the agency is unable to delay adoption ofthe rules. In light of the CMS denial of the States request to extend the Medicaid WomensHealth Program, and to avoid as much as possible any interruption in care to the womencurrently served by the program, the State has determined that it is necessary to continue toprovide these vital services, even if it occurs exclusively at the States expense. As successor tothe Medicaid Womens Health Program, DSHS must comply with the Legislatures direction todeliver services through providers that do not perform or promote elective abortions or affiliatewith an entity that performs or promotes elective abortions. To ensure a seamless transition for

clients from the Medicaid program to the TWHP, DSHS believes that it must move forward withthe adoption of the rules.

Comment: A commenter suggested that the rule should incorporate by reference or repeat thetext of Government Code, 531.0025, which the Texas Legislature adopted in 2011 to limit theuse of funds appropriated to the DSHS. See Act of June 27, 2011, 82nd Leg., 1st C.S., ch. 7,1.19(a) (S.B. 7). Under the statute and [n]otwithstanding any other law, unless the Legislaturehas directed otherwise in the appropriations act, the DSHS generally must award money that hasbeen appropriated to it for the purpose of providing family planning services to eligible entities

in the following order of descending priority: first, to public entities that provide familyplanning services; second, to nonpublic entities that provide comprehensive primary andpreventive care services, not just family planning services; and third, to nonpublic entities thatprovide family planning services but do not provide comprehensive primary and preventive careservices. Tex. Govt Code, 531.0025(a).

Response: DSHS appreciates the comment; however, by its terms, the statute does not apply tothe TWHP because the funds that will be used to administer the TWHP were not appropriated toDSHS for the purpose of providing family planning services. DSHS believes that this is a matterthat is more appropriately addressed to the Legislature.

39.31. Introduction.

Comment: Commenters suggested that the list of objectives in 39.31(c) be modified to add, asan objective, the provision of accessible and comprehensive reproductive health care for low-income women. One commenter suggests that the addition of such an objective will clarify theintent to provide continued access to preventive health care, contraceptives, and screenings.

Response: DSHS declines to add the requested objective. Sections 39.39 and 39.40 of theadopted rules describe the scope of benefits under the program. Therefore, DSHS does notbelieve the suggested revision is necessary.


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39.32. Non-entitlement and availability.

DSHS received no comments on this section.

39.33. Definitions.

(1) Affiliate

Comment: A commenter suggested generally that the notice is insufficient because it does notidentify the factual basis for the limits on affiliates and then, in light of the factual basis, clearlyand logically demonstrate that the rule is a reasonable means of achieving a legitimate end.

Response: DSHS disagrees with this comment. Barring providers that affiliate with entities thatperform or promote elective abortions from claiming reimbursement from state funds forservices provided through the TWHP is a legitimate end. The United States Supreme Court has

recognized that a state may adopt public policies that favor childbirth and disfavor abortion andmay allocate public funds accordingly. See Maher v. Roe, 432 U.S. 464, 474 (1977). OurLegislature repeatedly has expressed a very strong interest in barring from a womens health

program any provider that performs or promotes elective abortions or affiliates with an entitythat performs or promotes elective abortions. A state agency cannot question the factual basis onwhich the Texas Legislature based this prohibition. Neither is the agency required under theAdministrative Procedure Act to describe the factual basis underlying the legislative act. Rather,the agency must describe the factual basis underlying its action. The preamble to the proposedrules and this preamble amply describe the factual and legal basis for the TWHP rules.

Comment: More specifically, a commenter proposed revising the definition of the termaffiliate in 39.33(1)(B) to avoid a construction that the commenter feels would prevent aphysician from participating if another physician in the medical group performs or promoteselective abortions, as well as a physician who is affiliated with a medical school or hospital. Thecommenter makes four suggestions that it believes will resolve the issue. First, the commentersuggests limiting the list of written instruments that govern an impermissible affiliation to thosedocuments expressly listed, by changing may include to are limited to. Second, in thealternative, the commenter suggests adding language at the end of subparagraph (B) that wouldexpressly exclude an employment agreement. Third, the commenter suggests adding to thedefinition of affiliate a new subparagraph (C) that would state that a physician who is amember of a group practice is not considered an affiliate solely because another physician in thegroup practice performs or promotes elective abortions. And fourth, the commenter suggests anew subparagraph (D) that would state that a professor at a medical school is not considered anaffiliate of the medical school or resident training program at which the professor teaches orprovides instruction.

Response: DSHS will respond to the four suggestions in order. First, with respect, DSHSdeclines to revise the rule to specifically limit the list of written instruments that demonstrate anaffiliation. The term includes is a term of enlargement, as the commenter recognizes, and its

use provides DSHS with a permissible degree of flexibility in examining relationships to


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determine affiliations. Tex. Govt Code 311.005(13). On the other hand, the types ofinstruments that may be used to demonstrate an affiliate relationship do not constitute anunlimited class. Under the canon of construction known as ejusdem generis, an enumeration ofspecific items that follows a general term limits unlisted items to items similar in nature. Tex.Atty Gen. Op. No. JC-410 (2001) at 3. In this instance, DSHS believes that the rules specific

list limits the type of instruments that will be considered evidence to those that evidence a legalrelationship, usually between corporate entities, characterized by a degree of common control.

DSHS believes that organizations and entities that share common ownership, control, oridentification (names, logos, etc.) are also very likely to share the same purpose, goals, ormission and to support-financially or physically, directly or indirectly-the communication of thesame message. Thus, DSHS believes that when the Legislature specifically directed HHSC todisqualify affiliates of entities that perform or promote abortions from the Medicaid Womens

Health Program, it intended HHSC (and now DSHS) to ensure that funds expended to provideservices to women under the Medicaid Womens Health Program or the TWHP as its successor

do not directly or indirectly support legislatively disfavored abortion services or the

communication of support for such services.

DSHS believes this is so even if such support occurs through organizations that facially appear tobe independent, but exhibit objective evidence of more than a simple arms length relationship.

Indeed, DSHS believes that the risks of directly or indirectly supplying support to disfavoredactivities is greatest when one organization has the ability directly or indirectly to control, order,or significantly influence the policies and actions of the other. Thus, DSHS believes that themost reliable means of ensuring implementation of legislative intent is to focus on legalrelationships that confirm or infer such power. And the agency believes that the best evidence ofsuch power are the instruments that govern the legal relationship between the parties.

Similarly, DSHS believes that the Legislature intended, through the administration of theseprograms and the expenditure of funds through these programs, to ensure that the States

overarching message to disfavor such services is confirmed as much as possible. DSHS believesthat an entity cannot simultaneously participate in a program whose purpose is to confirm theStates general disapproval of abortion procedures and convey active support for such

procedures, such as through advocacy or popularization of elective abortion (see discussion of39.38(b) which follows after 39.37). And again, the agency believes the best evidence of thisrisk are the written instruments that legally govern the relationship between the parties.

The indicia of affiliation described in the proposed rule are patterned, in large part, after criteriacommonly employed by state and federal administrative agencies to determine eligibility forspecific regulatory treatment, to regulate program integrity, or to guard against fraud and self-dealing. See, e.g., 47 U.S.C. 153(2) (defining affiliate for purposes of federal regulation of

telecommunications to mean, inter alia, a person that (directly or indirectly) owns or controls,is owned or controlled by, or is under common ownership or control with, another person); 13C.F.R. 121.103 (for purposes of determining eligibility of a business for small businesstreatment by the U.S. Small Business Administration, [c]oncerns and entities are affiliates ofeach other when one controls or has the power to control the other, or a third party or partiescontrols or has the power to control both. It does not matter whether control is exercised, so long


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as the power to control exists); 42. C.F.R. 421.404 (for purposes of determining a MedicareAdministrative Contractors ability to enroll and process claims for related providers or

suppliers, common control exists when an individual, group of individuals, or an organizationhas the power, directly or indirectly, to significantly influence or direct the actions or policies ofa group of suppliers or providers); 28 TAC 7.202(a)(2) (affiliate means affiliate of, or person

affiliated with, a specific person, is a person that directly, or indirectly through one or moreintermediaries, controls, or is controlled by, or is under common control with, the personspecified). These regulations are aimed at piercing the common practice of establishing separatelegal entities to avoid regulation or sanction.

DSHS believes that the Legislature determined that organizations and entities that share commoncontrols and purposes with an entity that performs or promotes elective abortion should bedeemed unqualified to participate in the TWHP. DSHS believes that focusing on theserelationships is a reasonable means of ensuring the TWHPs integrity and achievement oflegislative intent.

With these principles in mind, the agency can now address the other recommended changes tothe definition of affiliate.

Regarding the second recommended change, DSHS declines to revise subparagraph (B) to insertat the end but do not include an employment agreement. DSHS believes that employmentcontracts-at least as between an entity that performs or promotes abortion services and itsemployees-is objective evidence of common control that disqualifies the provider fromparticipation in TWHP. The employment contract reasonably can be assumed to empower theemployer to regulate or direct the actions of the employee. An organization that performs orpromotes elective abortions can reasonably be assumed to have the authority to direct itsemployees to assist or implement these actions.

The same reasoning, however, cannot be applied to individuals who have relationships withorganizations that do not exhibit evidence of common ownership, control, or identity with anentity that performs or promotes elective abortions. In DSHS view, the Legislature did notintend to impute one individuals disfavored conduct to an entire group who (1) are associated

only by virtue of each members common ownership of employment with an entity whosemission differs from that of an abortion performing or promoting entity; and (2) have littlecontrol over other members practices.

Accordingly, DSHS believes it is reasonable to modify the proposed rules to assure thatdocumentation of the relationship between a physician and a physician group is not consideredevidence of a disqualifying affiliation. DSHS amends subparagraph (B) to exclude agreementsrelated to a physicians participation in a physician group practice. This change ensures thatphysicians who engage in disfavored activities (either for pay or on a voluntary basis) are notadmitted to the TWHP, but their peers who do not engage in those activities are not disqualifiedby virtue of their common ownership interest in or employment by a physician group. Exceptingphysicians in group practices that do not conduct disfavored activities from the definition ofaffiliate is, in our view, narrowly tailored and consistent with the legislative intent, yet allows asufficient number of providers to qualify to provide TWHP services.


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As adopted, subparagraph (B) reads as follows:

39.33(1)(B) - The written instruments referenced in subparagraph (A) of this paragraph mayinclude a certificate of formation, a franchise agreement, standards of affiliation, bylaws, or a

license, but do not include agreements related to a physicians participation in a physician grouppractice, such as a hospital group agreement, staffing agreement, management agreement, orcollaborative practice agreement.

Fourth, DSHS declines to add a new subparagraph that would except from the definition ofaffiliate a professor at a medical school. A professor at a medical school will be considered

unqualified to participate in TWHP if the professor performs or promotes elective abortions or isan affiliate of an entity that performs or promotes elective abortions. And in the absence ofevidence of common ownership, control, or identity with an elective abortion provider, membersof the faculty of a medical school who do not perform or promote elective abortions will not bedisqualified to participate as a TWHP provider.

39.33(8) Elective abortion.

Comment: A commenter suggested that the definition of the term elective abortion be revisedto reflect the medical emergency exception that Health and Safety Code, 285.202 sets out. Asproposed, the definition excepts an abortion performed to terminate a pregnancy that resultedfrom rape or incest or an abortion performed to avert a threat to the mothers life. Thecommenters suggested definition would expand to also include the termination of a pregnancyin two circumstances: (1) where continued pregnancy places the mother at risk of substantialimpairment of a major bodily function; and (2) where the fetus has a severe fetal abnormality.

Response: Health and Safety Code, 285.202 applies to hospitals districts and prohibits thetransfer of state funds to a hospital district that uses tax revenue to finance the performance of anabortion. The statute excepts financing of abortions performed due to a medical emergency asdefined in the statute. The language proposed by the commenter is derived from this definition.

Health and Safety Code, 285.202 was added by Senate Bill 7 of the first called session of the82nd Legislature, the same bill that enacted Human Resources Code, 32.024(c-1). Thus, DSHSbelieves that the Legislature intended both provisions to be read in harmony and did not intendfor a hospital that receives payment from a hospital district for the performance of an emergencyabortion as defined in Health and Safety Code, 285.202 to be disqualified under HumanResources Code, 32.024(c-1). Accordingly, DSHS will revise the definition of electiveabortion as the commenter suggests.

As revised, the definition will provide as follows:

39.33(8) Elective abortion--The intentional termination of a pregnancy by an attendingphysician who knows that the female is pregnant, using any means that is reasonably likely tocause the death of the fetus. The term does not include the use of any such means:


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(A) to terminate a pregnancy that resulted from an act of rape or incest;

(B) in a case in which a woman suffers from a physical disorder, physical disability, or physicalillness, including a life-endangering physical condition caused by or arising from the pregnancy,that would, as certified by a physician, place the woman in danger of death or risk of substantial

impairment of a major bodily function unless an abortion is performed; or

(C) in a case in which a fetus has a severe fetal abnormality, meaning a life-threatening physicalcondition that, in reasonable medical judgment, regardless of the provision of life-savingtreatment, is incompatible with life outside the womb.

39.34. Client Eligibility.


39.35. Application Procedures.

Comment: A commenter suggested that proposed paragraph (1) of subsection (a) be revised todelete a reference to a paper application and to add a new subparagraph (D) that would allowDSHS or its designee to approve other ways for women to obtain TWHP applications.

Response: DSHS will make these changes because they will provide DSHS with flexibility toadopt new ways for individuals to obtain TWHP applications, making it easier for potentialparticipants to apply for services.

Comment: A commenter suggested that subsection (e) be modified to allow DSHS or itsdesignee to request social security numbers from an applicants budget group members.

Response: Section 39.35(e) as proposed authorizes DSHS or its designee to request, but notrequire, an applicants budget group members social security numbers. DSHS declines to amendthe rule at this time as the commenter suggests but will monitor the situation and may amend therule at a later date.

39.36. Financial Eligibility Requirements.


39.37. Denial, Suspension, or Termination of Services; Client Appeals


39.38 Health-Care providers

Comment: A commenter stated that the Preamble is insufficient because it fails to mention thatthe proposed provider qualifications violate both the federal and state constitutions.


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Response: The rules have been formulated to comply with the federal and state constitutions,using in particular the guidance of the United States Supreme Court as set out inRust v. Sullivan.See Rust v. Sullivan, 500 U.S. 173 (1991). Particularly, the rules attempt to place reasonablecontrols on the use of TWHP to convey legislatively disfavored messages and to promote asmuch as possible the legislative policy favoring childbirth.

Comment: A commenter suggested that DSHS lacks authority to limit the pool of providers thatmay participate in the TWHP, citing Human Resources Code, 32.001, 32.002, and 32.024(c-1),as well as Health and Safety Code, 32.005.

Response: Human Resources Code, Chapter 32, cited by the commenter, pertains to theoperation of the Medicaid program by the HHSC. See Tex. Hum. Res. Code 32.001. Nothing inHuman Resources Code, Chapter 32-save for 32.024(c-1), which applies to any program that isthe successor to the Medicaid Womens Health Program-applies to DSHS authority toadminister a non-Medicaid program.

Health and Safety Code, 32.005 prohibits DSHS, in the operation of a maternal and infanthealth improvement services program, from applying funds under that program to pay for anyabortion unless the life of the mother is in danger. Because TWHP will not be administeredwithin the maternal and infant health improvement services program, Health and Safety Code,32.005 does not apply to the provision of services through the primary health care servicesprogram administered under Health and Safety Code, Chapter 31.

The commenter seems to argue, however, that no other statutes provide DSHS with relevantauthority to adopt rules with respect to TWHP. DSHS disagrees with the commentersargument: Health and Safety Code, 31.003 and 31.004 give DSHS broad authority to adoptrules for administering a primary health services program, including authority to adopt rulessetting out the type of services to provided, the administrative structure, and the designation ofpublic and private providers. This express authority encompasses authority to prescribe thequalifications of providers that participate in the TWHP.

Comment: The commenter also suggested that limiting the provider pool is inconsistent withDSHS authority to administer family planning programs under Strategy B.1.3 of the GeneralAppropriations Act. See General Appropriations Act, 82nd Leg., R.S., ch. 1355, art. II, StrategyB.1.3, at II-45 (Health and Human Services section, DSHS).

Response: As noted previously, DSHS authority to administer the TWHP is not derivative of theauthority to administer programs under Strategy B.1.3 because the TWHP is established underdifferent authority and because funds for the TWHP were not appropriated under Strategy B.1.3.

Comment: A commenter also stated that the Preamble is insufficient because, in the commentersview, it fails to note that the provider qualifications set forth in the TWHP rule will cause thenumber of providers that participate in the TWHP to be smaller than the number of providers thatparticipate in the Medicaid Womens Health Program. According to the commenter, this willcompound the loss of providers in the DSHS family planning programs and will make therecruiting of new participating providers challenging.


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Response: DSHS appreciates the comment, but believes that the Administrative Procedure Actdoes not require the kind of comparative analysis the commenter suggests. DSHS agrees thataccess to services must take priority. To the extent that access becomes a problem, DSHS willwork to recruit additional new qualified providers to the program.

Comment: A commenter indicated that the Preamble is insufficient because it does not describehow the provider qualifications listed in 39.38(b)(1) differ from the provider qualifications thatapply to the current Medicaid Womens Health Program.

Response: The two programs are separate. Nothing in the Administrative Procedure Act requiresa Preamble or an order adopting a rule to compare a new program to an old one.

Comment: A commenter stated that the Preamble is insufficient because it fails to acknowledgethe burdens 39.38 will impose on TWHP providers.

Response: In the agencys view, such an acknowledgement would exceed the requirements of the

Administrative Procedure Act. However, the burdens imposed by the TWHP are no greater thanthe burdens borne by providers currently enrolled in the Medicaid program.

Comment: A commenter stated generally that the prohibition on the promotion of electiveabortions in 39.38, together with the prohibition on affiliation with entities that perform orpromote elective abortion and the definition of affiliate in 39.33(1), contravenes the first andfourteenth amendments to the United States Constitution and the decision of the United StatesCourt of Appeals, Fifth Circuit, in Planned Parenthood v. Sanchez. See Planned Parenthood v.Sanchez, 403 F.3d 324 (5

thCir. 2005).

Response: With respect, DSHS does not believe that the rules contravene these constitutional

provisions. Under the United States Supreme Courts decision inRust, the state has clearauthority to regulate the conduct of a provider when the provider is performing services paidwith public funds. See Rust, 500 U.S. at 19697. Nor does DSHS believe that Sanchez applies toan analysis of these rules. The Texas Attorney General has opined expressly that the decision inSanchez does not apply outside the context of Title X of the federal Public Health Services Act.Tex. Atty Gen. Op. No. GA-0844 at 2 (2011). Consequently, DSHS believes it need not state alegitimate objective for adopting standards stricter than those set forth in Sanchez.

Comment: The same commenter indicated that it has gone to considerable expense to complywith the standards articulated in Sanchez and that the imposition of stricter standards constitute ataking of property and do not serve a legitimate objective.

Response: This argument presumes that the commenter is entitled to participate as a TWHPprovider. Whether an entity has a property interest in a particular situation is a matter of statelaw. See Personal Care Products, Inc. v. Hawkins, 2009 WL 2406253, *7 (W.D. Tex. 2009).Even in the Medicaid context, a court has recognized that, depending on the terms of a particularstates Medicaid statutes, a provider may have no property interest in or entitlement toparticipation as a Medicaid provider. See Kelly Kare, Ltd. v. ORourke, 930 F2d 170, 176 (2dCir.), cert. denied, 502 U.S. 907 (1991) (stating that a home-health provider has no property


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interest in continuing provider status under Medicaid); Shankar v. Bonta, 50 Fed. Appx. 840, 841(9th Cir. 2002) (finding that a physician had no constitutionally protected property interest inenrolling as a Medi-Cal provider). The commenter fails to cite any state law that would create aproperty interest in providing purely state-funded services such as TWHP services, and DSHS isnot aware of any such statute. And, as section 39.32(a) of the rules indicates, TWHP does not

create an entitlement program. Consequently, in our view, the rules do not impinge upon anyprotected property interests.

Comment: Commenters asserted that 39.38, together with the rules definitions, will restrict aTWHP providers conduct even outside TWHP.

Response: DSHS views these rules principally as setting out the standards a provider must meetto be qualified to perform services in TWHP. The Legislature has specifically stated that,because this State places a priority on life, a provider that performs or promotes electiveabortions is unqualified to participate as a provider in a successor program to the MedicaidWomens Health Program. Likewise, a provider that is affiliated with an entity that performs or

promotes elective abortions is unqualified to provide services for TWHP. A health-care provideris free to perform or promote elective abortions or to affiliate with an entity that performs orpromotes elective abortions, but that provider must know that that conduct renders it unqualifiedto participate in THWP.

In addition, no TWHP provider may promote elective abortions by having available for TWHPclients any materials promoting elective abortions. In the States view, the Legislature intendedfor any successor program to the Medicaid Womens Health Program to forbid any type ofmessage regarding elective abortions that may be accessible to or received by TWHP clients.DSHS believes that controlling the messages accessible to TWHP clients is consistent with theUnited States Supreme Courts conclusions inRust, even if that has an impact on the material theprovider has lying about the office for non-TWHP patients. See Rust, 500 U.S. 173, 198 (1991)(approving governmental regulation requiring separation between abortion-related activities andpublicly funded program);Planned Parenthood Assn v. Suehs, No. 12-50377, slip op. at 89 (5thCir. Aug. 21, 2012) (approving state regulation restricting the content of the Medicaid WomensHealth Program).

Comment: A commenter suggested that the provider qualifications will negatively impact aTWHP clients ability to receive services from the provider of her choice.

Response: Nothing in the rules guarantees that a TWHP client may select from an unlimiteduniverse of providers. Rather, a provider must be qualified, as the State defines qualified, and

must be willing to provide services through TWHP. Analogously, even in Medicaid, a clientschoice is not unbridled. Under 1902(a)(23) of the Social Security Act, a client may choose fromonly those providers that are qualified and who undertake to provide Medicaid services. SeeOBannon v. Town Court Nursing Ctr., 447 U.S. 773, 785 (1980).

Comment: A commenter proposed amending 39.38(b) by deleting paragraph (1), whichrequires a TWHP provider to ensure that the provider does not perform or promote electiveabortions outside the scope of TWHP and is not an affiliate of an entity that does so. The


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commenter suggests, in the alternative, deleting the phrases or promote and and is not an

affiliate of an entity that performs or promotes elective abortions. In the commenters view,

what a TWHP provider does outside the scope of TWHP is irrelevant to the program. However,according to the commenter, the alternative would allow the state to exclude providers thatperform elective abortions but not exclude entire group practices solely because some members

of the group practice perform elective abortions. Further, the alternative would avoid what thecommenter believes are violations of the First Amendment to the United States Constitution.

Response: DSHS respectfully declines either to delete 39.38(b)(1) or to revise it as suggestedby the commenter. DSHS disagrees that a providers conduct outside the TWHP is irrelevantto the providers qualification to participate in the TWHP. The Texas Legislature repeatedly hasdirected that a health-care provider that performs or promotes elective abortions is unqualified toparticipate in a program that provides family-planning services to women as a successor to theMedicaid Womens Health Program. The state may not disregardthe Legislatures directiveunless a court finds the directive to be unconstitutional. No court has held that a states

determination that entities that perform elective abortions are unqualified to provide publicly

funded family planning services is unconstitutional, and, in our view, determining providerqualifications for a state-funded program is within the states authority. Indeed, the FifthCircuit's ruling in Planned Parenthood v. Suehs holds that the Constitution permits the State toexclude abortion-promoting entities from the Medicaid Women's Health Program.

Comment: The commenter also suggested revising paragraph (2) of 39.38(b) by deletingsubparagraph (A), which relates to the promotion of elective abortion within the scope of TWHP.The commenter indicates that this subparagraph, if left in, would be inconsistent with aphysicians obligation to provide a patient with medically appropriate information. Additionally,

the commenter avers, a physician may be subject to liability for medical malpractice and todiscipline by the state licensing board from violating principles of medical ethics.

Response: DSHS does not agree that the proposed rules imposed constraints on physician-patientcommunications that differ markedly from other publicly funded family planning programs. See,e.g., 42 C.F.R. 59.5 (for family planning services funded pursuant to Title X of the SocialSecurity Act, a family planning provider must provide information concerning specified options,including termination of a pregnancy upon a patients request except with respect to anyoption(s) about which the pregnant woman indicates she does not wish to receive suchinformation and counseling). Such restrictions presumably apply even if the physician believesinformation and counseling that the patient rejects is medically appropriate.

DSHS does recognize, however, that treatment of health care conditions is most effective whenthe provider and patient maintain a trusting relationship that facilitates candid discussion of thepatients health care needs and options. DSHS also believes that such discussions need not-andin the case of TWHP must notslip into advocacy for illegal or (again in the case of TWHP)legislatively disfavored elective procedures. As discussed below, DSHS will amend thedefinition of promote (paragraph (1) of subsection (c) of this section) to facilitate and tailor the

provision of factual information and nondirective counseling in a manner intended to fulfilllegislative intent.


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Comment: A commenter suggested that the separation requirements set out in 39.38(b)(2)(B),(C) surpass those agreed to under Planned Parenthood v. Sanchez. See Planned Parenthood v.Sanchez, 280 F. Supp. 2d 590 (W.D. Tex. 2003). The commenter further suggests that thePreamble is insufficient because it fails to justify the separation requirements.

Response: DSHS disagrees on both points. The Texas Attorney General has indicated thatSanchez applies only in the context of Title X of the Public Health Act. See Tex. Atty Gen. Op.No. GA-0844 at 2 (2011). Consequently, its holding does not apply to these rules. Additionally,DSHS believes that the notice complies with the standards set out in the AdministrativeProcedure Act. See Tex. Govt Code 2001.024(a). With respect to a program that succeeds theMedicaid Womens Health Program, Human Resources Code 32.024(c-1) prohibits contractswith any entity that performs or promotes elective abortions or that is an affiliate of such anentity. While an administrative agency may not adopt a rule that is inconsistent with the statutesthe agency is authorized to effectuate,see R.R. Commn of Tex. v. Lone Star Gas Co., 844S.W.2d 679, 685 (Tex. 1992), the agency may adopt rules that reasonably define statutory terms

or fill in details not specified by statute. See Tex. Atty Gen. Op. Nos. GA-0845 at 2 (2012); GA-0708 at 7 (2009).

Comment: Another commenter suggested replacing the text of the proposed 39.38(b)(2)(B)with more specific requirements regarding the necessary physical and financial separation ofTWHP providers and physicians or entities that perform or promote elective abortions. Amongother things, the commenter suggests a requirement that all TWHP services be located at least100 yards from the location of any elective abortion activities and that all employees, volunteers,and governing boards of a TWHP provider be totally separate from an entity that performs orpromotes elective abortions. The commenter also suggests revisions empowering the ExecutiveCommissioner of the HHSC to determine a TWHP providers objective integrity and

independence based upon factors such as the presence of accounting records that are separatefrom those of an entity that performs or promotes elective abortions; the degree of physicalseparation between facilities used to provide TWHP services and those used in connection withthe performance or promotion of elective abortion; the existence of separate personnel; and theextent to which materials promoting abortion are available at the TWHP providers location andon the TWHP providers public electronic communications. The commenter describes theproposed revisions as necessary to adequately ensure that TWHP activities are truly separatedfrom the performance and promotion of elective abortion.

Response: DSHS agrees that more specific standards would assist TWHP providers in knowingexactly the degree of separation that is required. More importantly, DSHS believes that thestandards proposed by the commenter are consistent with the Legislatures intent that, in asuccessor program to the Medicaid Womens Health Program, no money be used to contract

with an entity that performs or promotes elective abortions or that affiliates with an entity thatperforms or promotes elective abortions. DSHS will alter the commenters proposal in tworespects, however.

First, as submitted, the commenters proposal would empower the HHSC ExecutiveCommissioner to determine a TWHP providers objective integrity and independence. Because


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TWHP will be a DSHS program, the language will be changed to house the authority with DSHSor its designee. Second, DSHS believes that the initial requirement that TWHP services have anobjective integrity and independence from elective abortion and its promotion would be

clarified by adding a cross-reference to clause (ii).

As revised, 39.38(b)(2)(B) will require that a TWHP provider must ensure that, in offering orperforming a TWHP service, the provider:

(B) maintains physical and financial separation between its TWHP activities and any electiveabortion-performing or abortion-promoting activity, as evidenced by the following:

(i) physical separation of TWHP services from any elective abortion activities, no matter whatentity is responsible for the activities;

(ii) a governing board or other body that controls the TWHP health care provider has no boardmembers who are also members of the governing board of an entity that performs or promotes

elective abortions;

(iii) accounting records that confirm that none of the funds used to pay for TWHP servicesdirectly or indirectly support the performance or promotion of elective abortions by an affiliate;and

(iv) display of signs and other media that identify TWHP and the absence of signs or materialspromoting elective abortion in the providers location or in the providers public electronic

communications; and

Comment: A commenter stated generally that 39.38(b)(2)(C), which prohibits the use of anytype of registered identification mark in the offering or performance of any TWHP service,deprives the commenter of its property in violation of the federal and state constitutions.

Response: DSHS disagrees with the commenter. The United States Court of Appeals for theFifth Circuit recently has affirmed the States authority to prohibit the expenditure of publicfunds for services provided by an organization that promotes abortion through identifying marks.See Planned Parenthood v. Suehs, No. 12-50377, slip op. at 10 (5th Cir. Aug. 21, 2012).According to the Court, Texass authority to directly regulate the content of its own programnecessarily includes the power to limit the identifying marks that program grantees areauthorized to use.Id. at 9.

Comment: A commenter suggested that 38.39(c)s description of activities that promoteelective abortion interfere with a TWHP providers relationship with TWHP clients.

Response: With respect, DSHS believes thatRustprovides sufficient authority for DSHS toregulate a TWHP providers relationship with a TWHP client. See Rust, 500 U.S. at 198.Furthermore, as discussed below, subsection (c) is revised to accommodate the communicationof neutral, factual information upon a TWHP clients request, provided such communicationdoes not involve taking affirmative steps to secure abortion services for a TWHP client.


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Comment: A commenter stated that the introductory heading Defining promote is incorrect,because what follows is not a definition but a list of items included within the term promote.

Response: DSHS agrees, but believes that the revised subsection (c) will remedy the problem.

Comment: A commenter stated that subsection (c) is unclear as to what is prohibited and what ispermitted and that this lack of clarity makes comment on any possible constitutional implicationsimpossible.

Response: Although DSHS does not find subsection (c) unclear, it will revise the lead-insentence to read as follows:

(c) Defining promote. For purposes of subsection (b) of this section, the term promote meansadvancing, furthering, advocating, or popularizing elective abortion, by, for example:.

Comment: A commenter suggested replacing the whole of subsection (c) with the definition ofpromotes used in the rules governing the current Medicaid Womens Health Program, so that itwould read, For purpose of this section, the term promotes means advocates or popularizes by,

for example, advertising or publicity. Cf. 1 Tex. Admin. Code 354.1362(6).

Response: DSHS believes that the subsection (c), as revised,will resolve this issue.

Comment: With respect to the list of activities that constitute the promotion of elective abortionset out in 39.38(c), a commenter advocated the deletion of the phrase but is not necessarilylimited to after the term includes. The commenter believes the language is overly broad and

provides insufficient guidance to physicians trying to determine whether particular activityconstitutes the promotion of elective abortions.

Response: DSHS believes that the revision of subsection (c) resolves this issue by more clearlydefining the scope of allowable and unallowable communication between a TWHP client and herprovider. DSHS believes that, as revised, subsection (c) will reduce uncertainty about the limitsof providers communications and will facilitate greater participation by the provider

community.

Comment: A commenter suggested deleting 39.38(c)(1), which includes within the scope ofpromotion the provision of client counseling concerning the use of abortion as a method offamily planning or within the continuum of family planning services.

Response: DSHS agrees that the phrase is not appropriately included within the rules and,considering the revisions to paragraphs (c)(1) and (c)(2), is not necessary to include in the finalrule.

As revised, 39.38(c)(1) will read as follows:


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(1) taking affirmative action to secure elective abortion services for a TWHP client (such asmaking an appointment, obtaining consent for the elective abortion, arranging for transportation,negotiating a reduction in an elective abortion provider fee, or arranging or scheduling anelective abortion procedure; however, the term does not include providing upon the patientsrequest neutral, factual information and nondirective counseling, including the name, address,

telephone number, and other relevant information about a family planning provider.

The proposed paragraph (c)(2) will be deleted, and the remaining paragraphs will be renumberedaccordingly.

Comment: A commenter advocated replacing subsection (c)(1) of 9.38 with the following: Theterm [promotes] does not include confidential communications that occur between patients and

physicians pursuant to an examination or treatment.

Response: DSHS believes that the revision of paragraphs (c)(1) and (c)(2) will resolve this issue.

Comment: A commenter suggested modifying the phrase TWHP client in paragraphs (c)(1)(c)(3) with the adjective current, to read current TWHP client.

Response: DSHS believes inserting the adjective current is unnecessary. Once a TWHP clientstops participating in TWHP, she is no longer a TWHP client, and a reference to a TWHPclient would not apply to her. Similarly, referring to a woman who is receiving TWHP servicesas a current TWHP client is redundant.

Comment: A commenter suggested that DSHS insert before the term abortion in paragraphs(c)(1) and (c)(3) the term elective.

Response: DSHS agrees to add the term in paragraph (3), making the phrase elective abortion.This will make use of the phrase consistent throughout the rules. In addition, Human ResourcesCode, 32.024(c-1) is concerned solely with elective abortions, showing that the Legislature didnot intend to impinge upon the performance or promotion on those abortions that are notelective.

Comment: A commenter suggested deleting from paragraphs (c)(1) and (c) (2) the phrase as amethod of family planning or within the continuum of family planning services. In thecommenters view, this phrase undermines the intent of the rules, which the commenterotherwise favors. In the commenters view, a TWHP provider must refrain from promoting,

referring, or recommending abortion to any client regardless of the context of the discussion,family planning or otherwise.

Response: DSHS believes that the revision of paragraphs (c)(1) and (c)(2) resolves this issue.

Comment: A commenter suggested deleting the acronym TWHP from paragraphs (c)(1)(c)(3) so that the phrase TWHP client would read client.


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Response: DSHS declines to delete TWHP as the adjective before client. The United States

Supreme Court indicated inRustthat a governmental entity could regulate the conduct of aprovider of publicly funded health care services with respect to that program, but left open theextent to which the government may regulate the providers conduct outside the program. SeeRust, 500 U.S. at 198. It is therefore appropriate to impose some restrictions that apply only to a

providers conduct within the context of the TWHP program.

Comment: A commenter suggested that paragraph (c)(1) be revised to insert the phraseincluding nondirective counseling after providing to a TWHP client counseling.

Response: DSHS believes that the revision of paragraphs (c)(1) and (c)(2) resolves this issue.

Comment: A commenter alleged that paragraph (c)(4) of the proposed is unclear with respect tohow it differs from the requirements governing the current Medicaid Womens Health Program.In particular, the commenter asks whether, if a provider completely removes from its signage,employee badges, paperwork, etc, any registered identification mark, it may be said to be

operating under the identification mark.

Response: Paragraph (c)(4) of the proposed rules appears as paragraph (c)(3) in the final rule.DSHS does not find the phrase unclear. Furthermore, the definition of affiliate in 39.33

confirms that a provider is also disqualified by virtue of the legal relationship it maintains withan entity that performs or promotes elective abortion. Removing identifying marks or symbolsdoes not negate that relationship. So, the provider could not affiliate with an entity that performsor promotes elective abortions, regardless of the presence of visible or accessible identificationmarks or promotional materials.

Comment: A commenter suggested that subsections (b) and (c) of this section together, becausethey are (in the commenters view) burdensome for providers, will reduce the numberofproviders who will participate in TWHP. Another commenter suggested that, because thenumber of providers will be reduced, TWHP clients may have significant problems findingtransportation to the providers.

Response: DSHS respectfully disagrees with the comment. Analyses performed by HHSC, onbehalf of DSHS, suggests that TWHP clients will have sufficient access to a qualified TWHPprovider and that the distance to such a provider will not substantially differ. Additionally, DSHSor its designee will monitor access issues and will seek to recruit providers to participate in theprogram.

Comment: A commenter suggested adding a new subsection (d) to expressly except clientcounseling from the term promote. As suggested, the new subsection would read: (d) Clientcounseling excepted. Notwithstanding subsection (c) of this section, the term promote does notinclude confidential communications that occur between patients and physicians pursuant to anexamination or treatment.

Response: DSHS believes that the revision of paragraphs (1) and (2) of subsection (c) resolvesthis issue.


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Comment: A commenter suggested that a new subsection be added to 39.38 to make clear thatDSHS must comply with restrictions in Government Code, 531.0025 as well as the restrictionsin these rules. Government Code section 531.0025 establishes priorities for awards of money

appropriated to DSHS for the purpose of providing family planning services.

Response: DSHS appreciates the comment but does not believe Government Code, 531.0025applies to the use of funds in TWHP. First, DSHS understands Government Code, 531.0025splain language to apply to funds directly appropriated to DSHS, and the allusion to familyplanning services suggests that the funds would be appropriated under what is numberedStrategy B.1.3 in the current General Appropriations Act. See General Appropriations Act, 82ndLeg., R.S., ch.1355, art. II, Strategy B.1.3, at II-45 (Family Planning Services). Section531.0025 parallels rider 77 to the DSHS appropriation, which also applies to funds appropriatedin Strategy B.1.3, Family Planning Services. See id. rider 77, at II-71.

Second, the term award in Government Code, 531.0025 is typically associated with the award

of grants, which is how DSHS distributes the funds appropriated to it for family planningservices under Strategy B.1.3. TWHP providers are not awarded contracts in the same sense,either legally or administratively. Rather, TWHP providers are enrolled to participate in theprogram, subject to satisfying any eligibility requirements applicable to the provider. See 1 TAC391.103(1) (a health and human services agency may enlist or enroll service providers under amethod that is open to all such providers who meet qualification criteria established by thepurchasing agency).

Third, subsection (b) of Government Code, 531.0025 requires DSHS to ensure that funds aredistributed in accordance with federal law. But TWHP is a totally state-funded program, andfederal law presumably does not apply.

In sum, because Government Code, 531.0025 does not apply to TWHP, DSHS declines to makethe suggested change.

Comment: A commenter suggested deleting subsection (d), which requires a TWHP provider toproduce all information DSHS or its designee requests to determine whether the provider hascomplied with 39.38. In the alternative, the commenter suggests limiting a possible request toproduce information to information obtained or maintained pursuant to TWHP within onecalendar year before the request to produce; that the request to produce information be based onan allegation or evidence that the provider has violated 39.38; and guaranteeing the provider 45days to comply with the request. The commenter feels that, as proposed, subsection (d) imposesonerous burdens on TWHP providers.

Response: DSHS declines to revise 39.38 either to delete subsection (d) or to add the languagethe commenter suggests as an alternative. The State must be able to audit a TWHP providerscompliance with program requirements, and either of the suggested changes would frustrate theStates ability to do so. In addition, with respect to the suggested 45-day period for a provider toproduce requested information, DSHS is not aware of any legal requirement that would mandatesuch a policy.


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39.39. Covered Services.

Comment: A commenter suggested several services that the commenter believes should be addedto the list of covered services: a follow-up visit after an abnormal Pap test; treatment of all

sexually transmitted infections (STIs); mammography and diagnostic services for breast cancer;and referrals for diagnosis and treatment of any identified health conditions that require follow-up. The commenter believes these additional services would be consistent with DSHS authorityin the Primary Health Care Services Program under Health and Safety Code, Chapter 31. SeeTex. Health and Safety Code 31.003(e).

Response: Health and Safety Code, Chapter 31 establishes initial services priorities for thePrimary Health Care Services Program, diagnosis and treatment; emergency services; familyplanning services; preventive health services; health education; and laboratory, X-ray, nuclearmedicine, or other appropriate diagnostic services. Even if Health and Safety Code, Chapter 31can be read to say that DSHS must, through its Primary Health Care Services Program, provide

all of these services, it cannot be read to say that TWHP, a component of the larger PrimaryHealth Care Services Program, must provide all of the services. Additionally, as a successorprogram to the Medicaid Womens Health Program, a primary goal of the TWHP is to allowwomen to space their pregnancies and thereby to improve their health and the health of theirbabies. Breast and cervical cancer screenings and STI testing and treatment are incidentalbenefits. Furthermore, adding to the list of covered services as suggested would incur substantialcosts. HHSC does not have LBB approval to create additional program costs by adding anyservices other than the treatment of certain STIs.

Comment: Another commenter suggested revising paragraph (3) of 39.39 to exclude from thecovered service of counseling on specific methods and use of contraceptives drugs and devices

whoseprimary method of birth control is to prevent implantation.

Response: DSHS declines to make this revision. The TWHP service array is based uponrequirements outlined at Human Resources Code, 32.0248 (expired). Although this section ofthe Code has expired, we believe the legislative directive to administer a successor programindicates that the service array should be substantially similar to that provided in the originalMedicaid Womens Health Program. More importantly, Human Resources Code, 32.0248expressly authorized the provision of contraceptives, except for the provision of emergencycontraceptives. Because the contraceptives the commenter describes are not considered

emergency contraceptives, they were available under the Medicaid Womens Health Program.And we find no evidence of a legislative intent to exclude any type of contraceptive other thanemergency contraceptives. See Tex. Atty Gen. Op. No. JC-0183 (2000) at 3 (articulating thedoctrine of statutory construction that the express mention of one thing is equivalent to theexpress exclusion of all other things).

39.40. Non-covered Services.


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Comment: Corresponding to the proposed additions to the list of covered services in 39.39, thesame commenter suggested deleting the same services from the list of non-covered services. Thiswould delete paragraphs (2), (5), and (6) in their entirety and revise paragraph (3).

Response: DSHS is not revising the covered services listed in 39.39, as explained previously.

To maintain the agreement between 39.39 and 39.40, DSHS declines to revise 39.40 as thecommenter suggests.

Comment: Another commenter suggested revising paragraph (7) to expressly include among thenon-covered services counseling on and provision of drugs and devices whose pri

texas women's health program abortion affiliate rules

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